Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 2, No. 5, June 2, 2005
This is the 13th e-newsletter (Vol. 2, No. 5) from the Claimants' Advisory Committee (CAC) in the Dow Corning bankruptcy Settlement Plan. You were sent a copy of the newsletter because our records show that you requested to be on the mailing list. If you wish to unsubscribe or to reply to this newsletter, send an email to: firstname.lastname@example.org. Please do not hit "Reply" to this email address. Please use the email address: email@example.com.
1. Court Approves Stipulation Appointing New Claims Administrator, David Austern
On May 25, 2005, the District Court approved the parties' selection of David Austern as the successor Claims Administrator for the Settlement Facility-Dow Corning Trust (SFDCT). His appointment is effective as of May 23, 2005. Mr. Austern has served as the President of the Claims Resolution Management Corporation (CRMC), which processes asbestos personal injury claims for the Manville Trust and the Pacor Trust, since 2000. He has extensive experience administering complex settlements and processing claims. A copy of the Order appointing Mr. Austern is on the CAC website under "Court Orders."
2. Court Enters Three New Orders
On May 23, 2005, the Court entered three agreed Orders as follows (all of which are posted on the CAC website under "Court Orders"):
3. MDL 926 Conference in New Orleans
The MDL 926 conference with Chief Judge U.W. Clemon scheduled for Friday, June 3, 2005 in New Orleans is open to plaintiffs' lawyers. The conference will be held at the International House Hotel in New Orleans beginning at 10 am Central Time. If you would like more information about the conference, please contact the Office of Plaintiffs' Liaison Counsel (OPLC) in Birmingham, Alabama at 205-252-6784 or at firstname.lastname@example.org.
- Order Allowing Korean Claimants To Rescind Their Opt-Out Election - The Order allows Korean Claimants who opted out to rescind their opt-out elections and return to the Settlement Option;
- Agreed Order Adopting Additional Q&A's regarding attorney fees and expenses - The Order contains four (4) new Q&A's concerning allowable attorney fees and expenses. The new Q&A's are reprinted below (you can view the entire Order on the CAC website under "Court Orders"):
EXHIBIT 1 to ORDER
Q8. I am an attorney representing many settling Dow Corning breast implant claimants. Do I have to pay any part of my attorney's fees from Settlement Option payments to the Common Benefit Fund in MDL 926?
A8. No, you do not.
Q9. I am an attorney who represents a claimant who has had both a Bristol and a Dow Corning silicone gel breast implant. My client opted out of the Revised Settlement Program and settled her claim directly with Bristol. She now qualifies for disease compensation in the Settlement Option and will be paid 50% of the eligible award for her Dow Corning breast implant. When I calculate the attorney's fees, can I aggregate the amount of the Bristol settlement with the 50% reduced compensation amount received in the Settlement Option? In other words, if my client received $100,000 from Bristol and now receives $10,000 from the Settlement Option, are attorney's fees determined based on a total recovery of $110,000?
A. Yes, you can aggregate the amount received in both settlements for purposes of calculating the attorney fees to be applied to the Dow Corning settlement benefit, BUT ONLY IF (1) you or your firm represented the claimant at the time she opted out of the RSP and you or your firm obtained the settlement for the claimant, and (2) the settlement amount paid for the claimant's MDL/RSP opt out settlement was reduced because the claimant also had a Dow Corning Implant.
In the above example, if the two criteria are met the attorney fees on the Dow Corning settlement benefit of $10,000 would be a maximum of 30% of the $10,000 benefit.
Q10. My attorney refuses to apply the attorney fees limits set out in Section 9.01 of Annex A, the Claims Resolution Procedures. What can I do?
A10. You should contact your local bar association for assistance and/or send a letter to the United States District Court for the Eastern District of Michigan to seek further clarification.
Q11. Can I calculate my attorney's fees based on the Premium Payment amounts?
A11. No, not at this time. If and when Premium Payments are authorized, then you can deduct allowable attorneys' fees and expense at that time.
- Service List for Motions - The Agreed Order lists three committees that need to be served with a copy of any motion filed regarding Settlement Facility matters. Motions can be filed electronically with the District Court and served electronically on the parties (note: you may need to be registered with the Court's electronic filing system to do this. For more information, go to the Court's website at www.mied.uscourts.gov/ and click on "Electronic Case Filing Information and Registration.") You can download a copy of the Order regarding Service List for Motions on the CAC's website under "Court Orders." For your convenience, we have reprinted the addresses to serve the three committees (including email address where applicable):
For the Claimants' Advisory Committee:
Claimants' Advisory Committee
Attention: Dianna Pendleton-Dominguez
P.O. Box 665
St. Marys, OH 45885
For the Debtor's Representatives:
Deborah E. Greenspan
Dickstein Shapiro Morin & Oshinsky LLP
2101 L Street, N.W.
Washington DC 20037
For the Finance Committee:
3100 Main Street, Suite 700
Houston, TX 77002
Please note that the MDL 926 Claims Office has changed its website address to: www.implantclaims-926.com. Additional information about the Revised Settlement Program can be found at this website.
4. Reminder: ONE YEAR Remaining on Deadline for Rupture, Class 7 Gel Claims and Class 9 (Dow Corning Other Product Claims)
Yesterday, June 1, 2005, marked the one year anniversary of the Effective Date of the Settlement Plan of reorganization. If you want to submit a claim for a ruptured silicone gel Dow Corning breast implant, please note that the deadline to do so is just one year away - June 1, 2006. If you do not submit a rupture claim by this deadline, then you will not be allowed to submit a claim in the future - even if your Dow Corning silicone gel breast implant ruptures. It can often take some time to make the necessary arrangements to have the implants removed and then obtain the documentation needed to support the rupture claim, so we would urge all claimants who wish to apply for rupture to make preparations now.
A large number of claimants have contacted us asking for help finding a doctor who will remove the implants. The CAC does not have at this time a list of doctors who are willing to perform the explant surgery. We are working with law firms around the country to locate doctors who have been willing to do the explant surgery and hope to have this list available soon. We are also working with the new Claims Administrator to identify why plastic surgeons have been unwilling to participate in the Explant Assistance Program. In the meantime, we urge you to contact breast implant support groups for help locating a surgeon. A partial list of some active breast implant support groups can be found on the CAC's website.
HELPFUL TIP: If you participate in the Explant Assistance Program but you do not have the removal surgery done by June 1, 2006 solely because your surgeon did not timely return documents or releases, then you are still eligible to seek an Explant payment and a Rupture payment if you otherwise qualify.
June 1, 2006 is also the deadline to submit a claim for Class 7 (Silicone Gel Claimants) and Class 9, 10.1, and 10.2 (Dow Corning Other Products such as knee, hip, TMJ, etc.). Class 7 claimants may apply for either a Disease Payment or an Expedited Release Payment. Class 7 does not offer Explant or Rupture benefits. Claimants who have a silicone gel breast implant from Bristol and/or Baxter must first "marshal" recoveries from manufacturers of their implants. The parties have recently agreed to new Q&A's about what constitutes marshalling. These will be posted on the Settlement Facility website in the near future.
5. Motions Filed By Individual Settling Claimants
Two additional motions were filed within the past week seeking to toll and extend cure deadlines on claims deemed deficient by the Settlement Facility. The two motions - filed by the Motley Rice and Siegel Kelleher and Kahn law firms -- can be found on the CAC website under "Pending Motions" along with all other pending motions. If you have a cure deadline approaching and are unable to meet the deadline, you may contact the Settlement Facility to request an extension. We do not know if they will grant the request. If they do not, you may need to file a motion with the Court.
6. Informational Meetings To Be Scheduled For September and October 2005
The CAC is working with the new Claims Administrator to schedule informational meetings for claimants and attorneys for September and October 2005. Please send requests for a meeting to be held in your area to us at: email@example.com.
7. New Q&A's Agreed To By CAC and Debtor's Representatives
The parties recently agreed to several new Q&A's that contain important information regarding Class 7 silicone gel claims and the requirement for marshalling. We are working with the Settlement Facility to post these new Q&A's immediately. We will also post them to our website and include them in the text of the next e-newsletter.
8. Reminder: The Dow Corning Sales Database Available
As we noted in our prior e-newsletters, Dow Corning provided a database to the Settlement Facility that contains their most comprehensive listing of doctors and hospitals that purchased Dow Corning implants. The sales database contains listings for thousands of sales worldwide and can be used to confirm whether a particular doctor or hospital purchased implants (breast implants and other types of implants) from Dow Corning, when they purchased the implants, and - in most cases - the type of implant that was purchased. While finding a "hit" in the sales database alone is NOT acceptable proof of a Dow Corning implant, you may use the information with other information you collected (such as an operative report that lists only the size or type of implant) to seek acceptance of the product ID through the Individual Review Process or IRP. For more information about requesting a search of the sales database, contact the Claims Assistance Program toll-free at 1-866-874-6099 or at firstname.lastname@example.org. The sales database was also recently provided to the Office of Plaintiffs' Liaison Counsel (OPLC) in Birmingham, Alabama (205-252-6784). Like the Claims Assistance Program, they can also search the sales database to determine if Dow Corning made sales to doctors or hospitals.
9. Pending Motions Before the District Court
There are several motions pending before the District Court that were recently heard on oral argument on April 7, 2005. Copies of each of the motions, along with the opposition filed by Dow Corning and the CAC reply briefs (if any) are on the CAC website under "Pending Motions."
10. Doctors Deemed "Unreliable" By Either the MDL Claims Office or SFDCT
- Motion for Disclosure of Substantive Criteria Created, Adopted and/or Being Applied by the Settlement Facility - The CAC is seeking to require the Settlement Facility to disclose the criteria it is using and applying in processing claims. We submitted examples to the Court where the Settlement Facility provided different criteria to claimants to qualify for Disability Level A, for example, only when the claimant received a deficiency notice. We also provided an example where the nurse reviewers in Claims Assistance will provide detailed information on how to cure a deficiency to claimants (or their attorney) when they speak with them on the phone - but to date they haven't made this same information publicly available to all claimants. We believe that full disclosure to all claimants is required and that it should be provided to claimants before they submit a claim, not afterwards when a deficiency letter is issued and the cure deadline begins to run.
The motion also questioned whether the Settlement Facility was accurately processing claims consistent with the way claims were processed at the MDL 926 Claims Office. The parties agreed to defer oral argument on this motion until the July 2005 status conference pending the outcome of an outside audit that is being conducted at the Settlement Facility.
- Motion to Toll The Cure Deadline For All Requests For Re-Review Pending More Than 21 Days - The CAC filed a motion asking the Court to order that any claimant whose re-review request has been pending for more than 21 days will have their cure deadline tolled as of the 22nd day following receipt of the request by the SF-DCT. The motion also asks the Court to direct the Settlement Facility to structure their staffing so that re-review requests can be prioritized and reviewed in a timely fashion. If the 21 day turnaround goal set by the facility is too lofty, then we urge that a more realistic goal that does not greatly exceed this time period be determined and adhered to going forward and that claimants whose re-review requests are not processed in a timely manner should have their cure deadline tolled until such time as the review is complete and a new Notification of Status letter is issued.
Several other motions seeking to toll the cure deadline for individual claimants' have also been filed and are pending before the Court. We understand that the Settlement Facility has granted extensions to some claimants who have asked for this extension.
HELPFUL TIP: If you have a cure deadline that has expired or is set to expire soon and you intend to file a motion asking to toll or extend your cure deadline, download and use one of the pending motions to toll on the CAC website as a template. The motions are located under the heading "Pending Motions."
- Motion To Amend Annex A to the Settlement Facility Agreement To Adopt An Additional Proof of Manufacturer Protocol -- The CAC filed a companion motion to that filed by the Houssierre law firm in Texas that seeks to allow claimants to use medical records or other documents that state a claimant was implanted with a silicone breast implant between 1963 - 1970 inclusive and do not contain any other contradictory information about the manufacturer to be deemed acceptable proof of a Dow Corning breast implant.
- Motion of Korean Claimants to Locate a QMD and Either Pay for QMD to Travel to Korea and Conduct Evaluations or Hire QMD in Korea to Conduct Evaluations at the Settlement Facility Expense - This motion was filed by counsel representing numerous Korean claimants and seeks to require the Settlement Facility to locate and hire a Qualified Medical Doctor to evaluate Korean Claimants. Dow Corning opposed the motion, and it is pending before the Court.
- Motion to Extend Time for Filing Participation Forms - This motion seeks additional time for certain claimants represented by the law firm who filed the motion to make a decision to settle or opt-out. The motion alleges that the claimants did not receive a response on their appeal concerning their Proof of Manufacturer prior to the opt-out deadline.
If you received a letter from either the MDL 926 Claims Office or the Settlement Facility stating that the doctor who performed your evaluation has been deemed "unreliable", please contact us at: email@example.com with the name of the doctor. The Settlement Facility sent out hundreds of letters earlier this year to claimants stating that the doctor they used for evaluation of their claim (typically for Proof of Manufacturer or Disease) has been deemed "unreliable" and therefore, the evaluation cannot be used. The letter also informed claimants that they would have to be re-evaluated at their own expense. This has, understandably, created a lot of confusion and frustration. The CAC has not been provided with any information about the identities of these doctors from the Settlement Facility or specific reasons why any particular doctor was placed on the "watch list." We understand that most of the doctors on the list were placed there by the MDL 926 Claims Office and that this may be a topic for the June 3, 2005 MDL conference in New Orleans.
Please mark your calendar with the claim submission deadlines. Please note that most of these deadlines mean that your claim forms and materials must be received by the appropriate entity by the posted deadline. Please mail all forms early enough so that they are received by the deadline listed below.
||Type of Deadline
|June 1, 2006
||Rupture Claim submission deadline for Classes 5, 6.1 and 6.2
|June 1, 2006
||Silicone Material Claim submission deadline - Class 7. All claims for Disease or Expedited Release must be submitted by this date. The Fund will close permanently and no new claims will be allowed after this date.
|June 1, 2006
||Covered Other Products submission deadline - Classes 9, 10.1 and 10.2. All claims for Expedited Release or a Medical Condition must be submitted by this date. The Fund will close permanently and no new claims will be allowed after this date.
|June 1, 2007
||Expedited Release submission deadline - Classes 5, 6.1 and 6.2
|June 1, 2014
||Explant Claims submission deadline for Classes 5, 6.1 and 6.2
|June 1, 2019
||Disease Claim submission deadline for Classes 5, 6.1 and 6.2
Deficiency / Cure Deadlines
If you receive a Notification of Status letter from the Settlement Facility stating that you have a deficiency in your claim submission, please note that there are very short deadlines to cure most deficiencies. The deadlines are listed below:
||Deadline to Cure Deficiency
|Proof of Manufacturer
||No deadline but your claim for Explant, Rupture, Medical Condition or Disease will not be reviewed until you first have acceptable proof of an eligible implant
||6 months from date of Notification of Status letter
||6 months from date of Notification of Status letter
(Classes 9, 10.1 and 10.2)
|6 months from date of Notification of Status letter
||1 year from date of Notification of Status letter
If you would like to read prior CAC e-newsletters, they are available on the CAC website by clicking on "Electronic Newsletter." We urge you to visit the CAC website (www.tortcomm.org) on a regular basis to download or view relevant documents and read updates and new information. To contact the CAC, send an email to: firstname.lastname@example.org or send a letter to the new Post Office Box address for the CAC at:
Claimants' Advisory Committee
P.O. Box 665
St. Marys, Ohio 45885
This is a NEW P.O. Box address for the CAC so please update your records.
Questions about the status of your claim or a claim-specific question (i.e., when am I going to be paid, has my claim been processed, etc.) should be directed to the Claims Assistance Program at email@example.com. Please do not send these types of questions to the CAC because we are unable to answer them. The CAC does not have access to individual claimant files and information. When we receive inquiries such as this, we have to forward them to the Claims Assistance Program for a response which delays the response.
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