Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 2, No. 7, July 13, 2005
This is the 15h e-newsletter (Vol. 2, No. 7) 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: email@example.com. Please do not hit "Reply" to this email address. Please use the email address: firstname.lastname@example.org.
NOTE: The CAC is happy to answer questions you may have, but we urge you to first contact the Claims Assistance Program at their toll free number (866-874-6099) or by email at: email@example.com. We apologize for any delay on our part in returning phone calls and answering inquiries. Please know that we will work to respond to each inquiry.
1. Notice of Hearing in Detroit for July 21, 2005
The District Court overseeing the Dow Corning Settlement Plan has set several hearings for Thursday, July 21, 2005 in Detroit. The first hearing will begin at 11 a.m. and will address the following motions:
- Motion of CAC for the Disclosure of Substantive Criteria Created, Adopted and/or Being Applied by the Settlement Facility and Request for Expedited Consideration (filed by the CAC on December 15, 2004)
- Motion by the Dow Corning Settlement Facility A Disability Claimants Adopting the Motion of CAC for the Disclosure of Substantive Criteria Created, Adopted and/or Being Applied by the Settlement Facility and Request for Expedited Consideration (filed by Dawn Barrios on January 7, 2005)
Copies of these motions and Dow Corning's Response are on the CAC website under "Pending Motions." The second hearing will begin on the same day at 2 p.m. and will address the following motions:
- Motion of Deborah DeSanto for 60 Day Extension to Cure Her Explant and Rupture Deficiencies Based on Special Circumstances
- Motion of Tamara Vanlandingham to Toll The Six Month Deadline for Curing Rupture Deficiencies
- Motion by Deficient Claimants for Expedited Consideration for Tolling of Disease Deficiencies and Request for Six Month Extension of Curing Past and Future Disease Deficiencies
- Motion for Expedited Consideration for Tolling of Disease Deficiencies and Request for Six Month Extension of Curing Past and Future Disease Deficiencies by the Class 5 Claimants
- Motion and Memorandum in Support of Claimant [Name Redacted] To Toll The One Year Deadline For Curing Disease Claim Deficiencies by Clients of Doffermyre Shields Law Firm
- Motion and Memorandum in Support of Claimant [Name Redacted] To Toll The Six Month Deadline for Curing Rupture Deficiencies by Clients of Doffermyre Shields Law Firm
- Motion of Nita Baldwin to Toll the Six-Month Deadline For Curing Rupture Deficiency
- Motion and Memorandum in Support of To Toll The One Year Deadline For Curing Disease Claim Deficiencies by Susannah Breen
Copies of the two "Notice of Hearing" Orders are on the CAC's website under "Court Orders." The hearings are open to the public. Copies of all of the motions are on the CAC's website under "Pending Motions."
2. New Motions Filed by CAC and On Behalf of Other Claimants
- CAC Files Motion To Toll All Cure Deadlines
On June 27, 2005, the CAC filed a "Motion For Relief On Behalf of All Settling Claimants Whose Cure Deadline(s) Have Already Run or Are About to Run Within The Next Six Months." A copy of the motion is on the CAC website under "Pending Motions." (For those who do not have internet access and receive a copy of the newsletter in the U.S. mail, a copy of the motion is included with your newsletter.) In the motion, the CAC asked the Court to take the following action:
- Void the enforcement of all cure deadlines that any Settling Claimant has received for a claim found deficient by the Settlement Facility including those cure deadlines that have already expired and those about to expire in the upcoming months;
- Temporarily suspend the issuance of new deficiency Notification of Status letters that would trigger cure deadlines to run (nothing however would prevent the issuance of award letters and payment for approved claims);
- Direct the Settlement Facility to develop and release information to claimants that provides specific answers and guidelines for submitting and processing claims similar to the Q&A's that were recently promulgated by the MDL 926 Claims Administrator and Court;
- Allow claimants who have already been notified of an alleged deficiency in their claim submission the opportunity to submit new information consistent with the agreed-upon claims criteria and new Q&A's that the Claims Administrator will promulgate in conjunction with the parties and the Court;
- Direct that the disability "A" disease claims should be interpreted consistent with the way the these claims were processed in the Revised Settlement Program from January 1996 to October 1997; and
- Re-review all claims previously found deficient consistent with the new Q&A's to be developed and the disability A interpretation that was applied in the RSP pre-October 1997.
The motion is based in part on the outcome of the claims audit that was recently concluded (but has not been publicly released). The Court has not yet set a hearing date on this motion. When we receive a hearing date, we will post it on the CAC website.
- Three Additional Motions Filed Seeking To Toll The One-Year Disease Cure Deadline
Three additional motions seeking to toll the one-year disease cure deadline were filed on July 5, 2005 by attorney Bradley Glazier. The motions (Ayon-Azzar, Rathbun and Bogert) are available to read and download on the CAC website under "Pending Motions."
- Motions That Have Been Resolved and Withdrawn
Two motions filed by the Doffermyre Shields law firm on behalf of two disease claimants have been resolved and the motions are being withdrawn. In one instance, the claimant's claim was approved prior to her cure deadline of June 14, 2005. The other disease claim was approved after reconsideration of an appeal to the Claims Administrator.
In addition, the motion filed by the Provost & Umphrey Law Firm (on behalf of claimant Breen) seeking to toll the one-year disease cure deadline has also been resolved and is being withdrawn. The claimant had a claim in the Revised Settlement Program (RSP) that was approved and paid at Level A (100% disability) with a 50% reduction because the claimant also had a Dow Corning breast implant. In the Settlement Facility, however, she received a deficiency notice on her disease claim. After filing the motion, the Claims Administrator (David Austern) sent a letter stating that this claim was not paid as an MDL pass through, but should have been. Therefore, her claim was paid at Level A just like it was approved and paid in the RSP. If you received a similar type deficiency notice from the Settlement Facility (i.e., your disease claim was approved in the RSP but the SFDCT claims it is deficient), you should appeal the decision to the SFDCT Claims Administrator and notify the CAC firstname.lastname@example.org. These claims are what we refer to as "MDL pass through claims" that should be paid automatically based on the RSP award determination.
3. New Orders Entered By Judge Hood
4. Appeals to the Claims Administrator and the Error Correction Process
- Order Establishing Procedures For The Review of Asserted Liens Against Settling Implant Claimants
On June 30, 2005, Judge Hood entered an Agreed Stipulation and Order that establishes procedures for handling liens asserted against settling implant claimants. This order supersedes prior orders that dealt with this topic. The agreed procedure requires persons asserting a lien to complete and return the "Proof of Lien Form" to the Settlement Facility within a specific time frame. The completed form along with any documentation submitted will then be provided to the claimant or her attorney of record who can then object to the lien or notify the Settlement Facility that the lien has been resolved. Liens that are contested will be submitted to the Lien Judge (Honorable Frank Andrews) who will issue a written decision within 90 days. The decision of the Lien Judge may be appealed to the District Court pursuant to Section 7.01 of the Agreed Procedures.
A copy of the Order (along with the procedures and sample forms) is available on the CAC website under "Court Orders."
- Various Orders regarding Substantial Contribution Claims
Comments and objections to the pending claims for substantial contribution were submitted to the Court on June 20, 2005. Reply briefs are due on September 6, 2005. No hearing has been set on these claims. On June 30, 2005, the Court entered Agreed Orders that resolved two applications. Copies of the Orders are available on the CAC website under "Court Orders."
The CAC has received a number of correspondence from claimants and attorneys that requests for Re-Review, Error Correction and Appeals to the new Claims Administrator (David Austern) have been successful in getting the claim approved. Because of the problems experienced by the claims office in the past with regard to deficiency notices on claims, we would urge all claimants with a deficiency notice to seek re-review, error correction and appeal.
5. Breast Implant Litigation Group (BILG) Meeting in Toronto July 26, 2005
The Breast Implant Litigation Group (BILG) of ATLA (American Trial Lawyers Association) will hold a meeting for all attorney members of ATLA on Tuesday, July 26, 2005 in Toronto at the annual ATLA summer convention. The meeting will be held from 2:30-4:30 p.m. in the Simcoe Room at the Sheraton Centre Hotel. If you plan to attend, please let Karen Read know. Her email address is: email@example.com (we apologize for printing her incorrect email address in the last newsletter).
6. Informational Meetings Scheduled For Fall 2005
The CAC is working with the new Claims Administrator to finalize a series of informational meetings for the fall 2005 in the U.S. and Europe. We hope to make the schedule available within the next several weeks and will post it on the CAC website and in our next e-newsletter. The meetings will focus on all aspects of claims processing including deficiency notices, problems experienced by claimants, and deadlines. The new Claims Administrator and a representative from the CAC will attend the meetings.
7. Dow Corning Terminates The "Pilot" Program For Reviewing And Identifying Breast Implants
Dow Corning recently informed the CAC that it will not go forward with its program to review implants for identification because it believes the program has not been cost effective and because of the low response rate in submitting implants to it by claimants. Dow Corning stated that it will agree to review any implant submitted by the 21 individuals who have already received the packaging material from Dow Corning under the Pilot Program provided they submit the implants within a reasonable time frame.
To assist claimants with identifying implant manufacturer, we are providing the names and contact information for persons who do implant identification for Dow Corning breast implants. Please note that these persons do charge a fee for their services. You may want to inquire about whether they will accept color photographs of the removed implants instead of shipping the actual implant itself. Remember: without acceptable proof of the implant manufacturer, you will not be eligible for any benefits.
Michael Middleton, Ph.D., M.D.
University of California at San Diego
410 Dickinson Street
San Diego, CA 92103-8749
Resch Engineering, Inc.
941 "O" Street, Suite 208
Lincoln, NE 68508
Pierre Blais, Ph.D.
496 Westminster Avenue
CANADA KeA 2V1
As an alternative, you may also seek the assistance of a qualified pathologist to examine the implants or a color photograph of the implants for a "Unique Identifier" for Dow Corning. A complete list of the Unique Identifiers can be found in the Claimant Information Guide booklet at Q5-8.
8. Update on Doctors Listed on the "Watch List"
You can now call the Claims Assistance Program (toll free at 1-866-874-6099) and ask whether a specific doctor is on the so-called "watch list." The Settlement Facility will confirm whether the doctor is on the list. If a doctor is on the list, then the report from that doctor will not be accepted by the Settlement Facility, and the claimant will likely be required to be re-examined at her own cost by another doctor.
We are informed that the new Claims Administrator has removed the names of several doctors who were previously on the watch list. If you received a letter from the SFDCT earlier this year stating that a doctor's report was unreliable or that you needed to be re-examined, you may consider calling Claims Assistance to determine if the doctor is still on the watch list. More on this topic in future newsletters as information becomes available.
9. Plan Interpretation Alert!
A claimant contacted the CAC recently about her claim that was denied as ineligible because her Dow Corning silicone gel breast implant was not implanted in the breast, but elsewhere. She received a letter from SFDCT stating that she would not be considered a Dow Corning Breast Implant Claimant in Class 5. We are happy to report that this decision has been reversed. If you have a similar type situation, please contact the CAC at firstname.lastname@example.org and also submit a request for re-review and error correction to the SFDCT offices.
10. Explant Assistance Program - Need Help Finding Doctors To Do Explant Surgery
We continue to receive a large number of inquiries from claimants asking for help in finding a doctor willing to do the explant surgery as part of the Explant Assistance Program. Claimants who have contacted us report that the plastic surgeons they have talked to are unwilling to do the surgery without first receiving payment. The Explant Assistance Program, however, will not pay the surgeon until the surgery is first performed and the doctor has complied with all of the requirements (i.e., providing documents of the surgery and, if applicable, the rupture). If you are aware of doctors who are willing to perform the surgery as part of the Explant Assistance Program, please contact the CAC at email@example.com. This is a very important issue to claimants who wish to document their rupture and submit a claim by the Rupture Deadline of June 1, 2006, so we urge everyone to share information about available doctors with us so that we can share it with other claimants.
11. European Claims Facility To Close
The claims office located in Amsterdam to handle claim submissions of European claimants will soon close. All claimants are instructed to send their claim forms to the address provided below:
Settlement Facility - Dow Corning Trust
P.O. Box 52429
Houston, Texas 77052-2429
The phone number for the Settlement Facility will remain the same (866-874-6099). The Houston office has representatives available in the Claims Assistance Program who are fluent in a number of different languages so that claimants in Class 6.1 and 6.2 can obtain information.
12. MDL Appeals Judge Decisions Now Available on MDL 926 Claims Office Website
As discussed at the informal status conference in New Orleans on June 3, 2005, the annotated decisions of Frank Andrews on Appeals of Claims Administrator Determinations in the Revised Settlement Program of MDL 926 are now available. You can download a copy at www.claimsoffice-926.com. The annotated decisions cover topics like:
Please note that these do NOT include the decisions of the Appeals Judge for claims in the Dow Corning Settlement Plan. They are decisions from the Revised Settlement Program only.
- Opted out, now wants back in
- Wants to Opt-Out
- Disease Claims - Substantive Issues
- Proof of Manufacturers - Substantive Issues
- Late Registration Status
- Explantation Claims
- Rupture Claims - Substantive Issues
- Wants Current Claimant Status - 1994 Deadline
- Wants Current Claimant Status - 1996 Deadline
- Requesting a Rescission of Signed Release
- Mentor/Bioplasty Claims
- Miscellaneous - Untimely Appeal; Dow Corning Issues;
- Reconsiderations; Multiple Issues
- Missed June 15, 1999 Deadline
13. Additional Topics for Our Next E-Newsletter
We hope to report soon (within the next 1-2) weeks on the status of the following items:
- Agreement by the CAC and Dow Corning on allowing pre-1971 breast implants as Dow Corning under certain circumstances
- Status of a motion the CAC is currently preparing regarding claimants who signed a release but who either participated in the Dow Corning Removal Assistance Program in the early 1990's (or thought that they were participating in this) or who signed a release from 1991 - 1995 for under $15,000 and who were unrepresented. We hope to finalize this motion and file it soon.
- Status of the NOI survey results and eligibility for NOI claimants who do not "match" to an existing Rule 3005 co-debtor claim
- Updated monthly claims processing data report
- New Questions and Answers and information about submitting claims (including new information about marshalling for Class 7 silicone gel claimants)
- Update on the hearings to be held on July 21, 2005
- Status of late NOI appeals to the Court
- Status of processing times and payment of claims
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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