Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.

CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 3, No. 8, August 31, 2006



This is the 28th e-newsletter (Vol. 3, No. 8) 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: info@tortcomm.org. Please do not hit “Reply” to this email address. Please use the email address: info@tortcomm.org.

Requests for copies of claim forms or inquiries about the status of a claim should be directed to the Settlement Facility at info@sfdct.com or 866-874-6099.



1. UPDATE ON CLAIMS PROCESSING AND PAYMENT

The Settlement Facility has released information about the status of claims processing and payment through June 30, 2006. The information is summarized below.

Through June 30, 2006, the Settlement Facility has received 68,593 Proof of Manufacturer claim forms in Classes 5, 6.1 and 6.2 (almost 61,000 are for U.S. claimants). The Settlement Facility has completed reviews on 91% of these claims and expects to complete the review of the remaining 9% within the next 60 days. Of the 68,593 claims, 53,222 or 78% have acceptable proof of a Dow Corning breast implant.

The Settlement Facility reports that there is currently a one-year backlog to process pending Disease Option 1 claims and an approximately 9-month backlog on pending Disease Option 2 claims. Also, the time for re-reviews / error correction is approximately 180 days. We are just as frustrated with this delay as you are and have expressed our concerns to the Claims Administrator. Having said that, we are equally convinced based on our discussions with the Claims Administrator that he and his staff are doing everything possible to improve processing time. We will continue to monitor this issue and will report more on this in future newsletters.


CLASS 5, 6.1 AND 6.2 (DOW CORNING BREAST IMPLANT CLAIMS)
Claim Category Number of Claims Paid through June 30, 2006 Percentage of Claims Approved Total $$ Paid in category through June 30, 2006
Class 5 Class 6
Expedited Release 11,332 87% 80% $ 21,605,009.08
Explant 22,010 89% 79% $ 107,600,095.23
Explant Assistance 301 58% 36% $ 1,128,483.00
Increased Explant (6.2 only) 16 N/A 66% $ 48,000.00
Rupture 15,348 71% 58% $ 301,709,426.94
Disease Option 1 10,511 76% $ 150,155,057.32
Disease Option 2 279 12% $ 31,988,463.80
Total 59,787 N/A $ 614,244,535.37

Note: The approval percentages for Disease Options 1 and 2 include those claims that were previously approved by the MDL 926 Claims Office and are “pass throughs” in the Settlement Facility (i.e., the claimant had an implant from Bristol, Baxter or 3M and a breast implant from Dow Corning and has applied to receive 50% of her disease award in the Dow Corning case). As a result, the percentage of approved disease claims processed by the Settlement Facility is actually lower.


CLASS 7 (SILICONE GEL MATERIAL CLAIMANTS)
Claim Category Number of Forms Filed Number of Claims Requesting Expedited Release Number of Claims Requesting Disease
Proof of Manufacturer 50,710 23,779 23,801

The Settlement Facility is working to identify those claimants that are eligible for Class 7 based on their Proof of Manufacturer documentation and information about prior settlements or compensation received through the Revised Settlement Program. Based on our discussions with the Claims Administrator, the goal is for the Settlement Facility to begin sending letters to claimants about their claim status and eligibility sometime within the next 60 days. We will keep you posted on developments.


CLASSES 9, 10.1 AND 10.2
(DOW CORNING COVERED OTHER PRODUCTS)
Claim Category Number of Forms Filed Number of POM Claims Reviewed Number of POM Claims Approved Number of Claims for Benefits Reviewed Number of Claims for Benefits Approved Percentage of Claims Approved
Proof of Manufacturer 4865 4047 1597 N/A N/A 56%
Expedited Release 2752 1551 969 N/A 969 63%
Rupture (Chin and testicular) 364 N/A 66 44 11 52%
Inflammatory Foreign Body Resp. (TMJ, finger, wrist, toe, knee & hip) 1153 N/A 357 216 73 35%
Implant Failure (TMJ, finger, wrist, toe, knee, hip & testicular) 1614 N/A 489 301 27 9%
TMJ Enhanced 897 N/A 204 135 6 5%

The Settlement Facility issued payments to approved claims for Expedited Release in June and July 2006 and authorized payment for approved Medical Condition claims (which includes all claims other than Expedited Release) in the Class 9/10 Covered Other Products Fund. Processing of claims in this class is expected to be complete either by the end of this year or in early 2007.

2. NEW AFFIRMATIVE STATEMENT LIST FOR PROOF OF DOW CORNING BREAST IMPLANT

The Settlement Facility recently provided an updated list of names of doctors who executed an “affirmative statement” about their implant usage and indicated that they used only Dow Corning breast implants during the years designated in the right hand column. The list is current through July 31, 2006. If your doctor’s name appears on this list and you can demonstrate you were implanted by that doctor during the time period in question, then you may be able to rely on the affirmative statement the doctor submitted for another claimant to “piggy back” off it and have your product ID accepted.


List of Surgeons Who Have Submitted Acceptable Affidavits or Affirmative Statements for Dow Corning Usage
Surgeon/Physician Name Location Time Frame
Adrichem, Dr. LNA Van The Netherlands All Years
Agris, Dr. Joseph Houston, Texas 1982
Allen, Dr. John Little Rock, AR 1974-1978
Allen, Dr. Thomas Little Rock, AR 1970-1979
Altaney, Dr. Franklin Charlotte, NC 1972
Anders, Dr. Christopher Woking, Surrey United Kingdom 1977
Apostolis, Dr. Charles G. Port Elizabeth South Africa All Years
Arends, Dr. Norman J. Eastpointe, MI 1972
Arnold, Dr. J. Harold Greenville, SC 1979
Au, Dr. Victor K. Burlington, NC All Years
AZVU Facility Amsterdam The Netherlands 1978
Bailey, Dr. Bruce Aylesbury, Bucks United Kingdom All Years
Baker, Dr. Thomas J. Miami, FL 11/1963-1970, 1972-1980
Banfield, Dr. Ernest Tacoma, WA 1977
Bartlett, Dr. Sylvan Odessa, TX 1983
Barton, Dr. Morris Phoenix, AZ 1967-1970 & 1972
Beasley, Jr., Dr. Gerald L. Duncan, OK All Years
Beehan, Dr. Patrick Hamilton New Zealand 1985-1986
Beg, Dr. Saeed Irving, TX 1981 & 1983
Bell, Dr. Gordon Washington, DC 1971
Berg, Dr. Elliot M. Baltimore, MD 1964-1973
Biggs, Dr. Thomas Houston, TX 1980-1983
Blake, Dr. Graeme Merivale, Christchurch New Zealand 1979-1980; 1983-1984; 1990
Bloomenstein, Dr. Richard Englewood, NJ 1969
Bowen, Dr. John London United Kingdom 1979, 1982, 1984, 1989
Brucker, Dr. Perry Fort Wayne, IN 1968
Bueno, Dr. Reuben A. Bethesda, MD All Years
Buffington, Dr. F.C. Norman, OK All Years
Bumagin, Dr. Michael S. Fort Worth, TX All Years
Calcinai, Dr. Colin Wellington, New Zealand 1976, 1981, 1987
Caplitz, Dr. I.W. Muskegon County, MI 1968
Carrell, Dr. Jeffrey M. Buffalo, NY 1970’s & 1980’s
Ceber, Dr. Simon Kew, Victoria Australia 1976
Cipcic, Dr. J.A. Steubenville, OH All Years
Comess, Dr. Morton Phoenix, AZ All Years
Craft, Dr. Jerome Craft Surgical Center West Palm Beach, FL All Years
DeProphetis, Dr. Nino Wallingford, PA All Years
Dotson, Dr. Daniel A. Graham, TX All Years
Duckett, Dr. James Oklahoma City, OK 1966-1971
Duffy, Dr. Michael M. San Antonio, TX All Years
Easterly, James Winter Park, FL All Years
Fromm, Dr. Harold E. Rapid City, SD All Years
Garcia, Dr. F. A. Denver, CO All Years
Gaska, Dr. Walter Springfield, MO All Years
Gilman Hospital St. Mary’s, GA All Years
Griffiths, Dr. Cadvan O. Los Angeles, CA All Years
Hause, Dr. Dwight Corpus Christi, TX All Years
Herman, Dr. Steven New York, NY Prior to 1981
Hilbun, Dr. Glyn R. Pascagoula, MS All Years
Ibrahim, Dr. Kaissar S. Raleigh, NC All Years
Jatoi, Dr. Alimadad Bedford, TX All Years
Klein, Dr. Daniel Brooklyn, NY All Years
Koire, Dr. Bernard Los Angeles, CA 1968-1969
Kruggel, Dr. John San Diego, CA 1968-1974
Lindsay, Dr. John Fort Worth, TX 1978-1984
Lovie, Dr. Maxwell J. New Zealand 1968-1973
Manchester, Dr. William M. New Zealand All Years
Maraist, Dr. Donald J. Jefferson County, TX All Years
McCarty, Dr. Gordon E. Phillips County, AR All Years
Montgomery, Dr. Wally Paducah, KY All Years
Ozment, Dr. Kerry Little Rock, AR 1970-1975
Peddy, Dr. Robert B. Lakeland, FL All Years
Phillips, Dr. Curtis Jacksonville, FL 1973 - 1980
Pinkner, Dr. Lawrence D. Owings Mills and Westminster, MD All Years
Pullman, Dr. Norman K. Wichita, KS All Years
Ramselaar, Dr. J. M. The Netherlands All Years
Robbins, Dr. Lawrence B. Miami, FL All Years
Robinson, Dr. O. Gordon Birmingham, Alabama to 12/31/1973
Rogers, Dr. Charles S. Bay City, MI All Years
Shaheen, Dr. Albert H. Utica, NY All Years
Sint Franciscus Gasthuis (facility) The Netherlands All Years
Stark, Dr. Richard B. New York, NY All Years
Steen, Dr. Alan St. Helena, CA 1970-1974
Steen, Dr. Alan M. St. Helena, California 1970-1974
Stillwell, Dr. James Tacoma, WA 1977
Terino, Dr. Edward Thosand Oaks, CA 1970
Thompson, Dr. R.V.S. Cooma, Pambula, and Tura Beach, NSW Australia All Years
Wagner, Dr. Kurt Boca Raton, Florida 1966 - 1/1/1972
Weiner, Daniel New York, NY 1990-January 1992
Wilkinson, Dr. Tolbert S. San Antonio, Texas 1972-1973
Williams, Dr. John Williams, Dr. John 1972-1979; 1990
Williams, Dr. John E. Beverly Hills, CA 1965-1970
Wilson, Dr. John M. Darlington, SC All Years
Yarn, Dr. Charles Atlanta, GA All Years
Zeller, Dr. Frank Winter Haven, FL All Years
Zielinski, Dr. Victor Sydney, NSW Australia All Years

3. STATUS OF CERTAIN PENDING MOTIONS

The following motions filed by the CAC are pending with the Court:

  1. Tissue Expanders implanted in the breast – the issue is whether Dow Corning tissue expanders that were implanted in the breast are “breast implants” as defined by the Plan Documents. Dow Corning has taken the position that all tissue expanders are in the Class 9/10 Covered Other Products and that they are not eligible for any compensation. The issue was briefed and argued to the Court in September 2004. The CAC and Finance Committee have made inquiries to the Court over the past two years about the status of a ruling. There are almost 600 claims on hold pending the outcome of this motion.
  2. Tolling of the 24 month time frame for Disease Option 2 claims – the issue is whether claimants must document that their eligible symptoms all occurred within a 24 month period or whether that time period was tolled during the pendency of the bankruptcy as the CAC believes. The issue was briefed and argued to the Court in September 2004. The CAC and Finance Committee have made inquiries to the Court about the status of a ruling.
  3. Motion for Disclosure of Substantive Criteria (Disability A issue) – the CAC filed a motion seeking the disclosure of substantive criteria applied by the Settlement Facility for processing of disease claims, and in particular, the standard being applied to Disability A claims. The Claims Administrator issued a report earlier this year confirming that the standard applied to process Disability A claims in the Revised Settlement Program (RSP) was total disability of either vocation or self-care. After 99% of the disease claims were processed by the RSP, the standard changed to require total disability of both vocation and self-care. The CAC has asked the Court to direct the Settlement Facility to apply the same standard to Dow Corning claims that was applied to 99% of claims in the RSP. The motion was argued on June 20, 2006 and is under submission. In the meantime, if you applied for a Level A disability claim and it was denied because of the pending “and/or” issue, but your claim was approved at either Level B or C, then the Claims Administrator has made the following rule: claimants can accept payment at the Level B or C compensation amount now and, if the Court rules in our favor, the Settlement Facility will go back and re-review the claims to determine if the claimant qualifies for Level A. If so, the Settlement Facility will pay the claimant the difference in the two amounts. In this way, claimants can receive some compensation now while the issue remains under consideration by the Court.
    Part of the relief requested was an extension of the cure deadline applied to individual claims. The cure deadline has been extended for all claimants until January 17, 2007 while the Claims Administrator and the parties work on providing detailed information about criteria and claims processing standards.
  4. Motion challenging the validity of releases solicited by Dow Corning’s Legal Department through May 15, 1995 (the date Dow Corning filed for bankruptcy protection) – the CAC filed a motion in March 2006 asking the Court to rule that the “release” documents that Dow Corning’s Legal Department solicited from unrepresented claimants are unconscionable and should not bar claimants from seeking benefits for rupture and disease. The issue is fully briefed and we are awaiting a date for oral argument.
  5. Motion seeking an extension of the June 1, 2006 Deadline for Rupture Claims – the CAC filed a motion seeking a limited extension of the June 1, 2006 Rupture Deadline for certain groups of claimants. The issue is fully briefed and we are awaiting a date for oral argument.

A copy of these and other pleadings are all on the CAC website (www.tortcomm.org) under the heading “Pending Motions.”


4. DISPUTED LATE CLAIM PLEADINGS

The first round of Objections and Replies regarding disputed late claimants in Group 1 was filed in August 2006. If anyone would like a copy of the CAC Reply brief, please email us at info@tortcomm.org and we will send you a copy. The Court has scheduled a status conference on this issue for September 7th. The Court has not ruled on the merits of any late claim request yet. The process to address the second group of late claim requests is also under way.

5. STATUS OF UNMATCHED NOI CLAIMANTS WHOSE CLAIM FOR EXPLANT AND RUPTURE HAS BEEN ON HOLD

  1. Class 7 and 9 Claimants (Silicone Gel Claimants and DCC Covered Other Product Claimants) - The Claims Administrator has determined that the aggregate value of Class 7 or Class 9 NOI filings will not materially affect other timely claimants, and so these claimants will be allowed to participate in the Class 7 or 9 Funds (as applicable) and, if eligible, receive compensation. These claims are no longer on hold with the Settlement Facility.
  2. b. Class 5 and 6 Claimants (DCC Breast Implant Claimants) – Claims for disease for unmatched NOI claimants are allowed and are being processed and paid. Dow Corning continues to object to the allowance of claims for Explant, Rupture and Expedited Release and until this issue is resolved, the claims remain on hold. If you have any questions about your claim status, contact the Settlement Facility at info@sfdct.com or at 866-874-6099.

6. STATUS OF LIENS FILED BY MDL 926 CLAIMS OFFICE AGAINST DOW CORNING CLAIMANTS

The MDL 926 Claims Office filed hundreds of liens against claimants who had filed a claim in both the Revised Settlement Program and the Dow Corning Settlement Program. After discussion with the CAC, the MDL 926 Claims Office clarified its position and agreed to withdraw the liens on virtually all Explant and Rupture payments awarded from the Settlement Facility. Checks have been issued to claimants for these Explant and Rupture claims. The remaining liens that the MDL 926 Claims Office continues to pursue are against the disease payment. The CAC is continuing its efforts to resolve these liens so that approved disease payments can be made. At this time, there are approximately 50 approved disease payments on hold because of this issue.

7. STATUS OF POM ISSUE WHERE DOW CORNING PRODUCT ID IS DENIED BY THE SF-DCT BUT THE CLAIMANT HAS RECEIVED A 50% DISCOUNT ON HER CLAIM FROM THE REVISED SETTLEMENT PROGRAM

As part of our discussions with the MDL 926 Claims Administrator and Escrow Agent on lien issues noted above, the CAC has continued to pursue the issue of resolving claims where a claimant received a 50% reduction in her claim payment in the Revised Settlement Program because of a product identification reference to “Cronin” or “silastic” (small letter “s”), but whose product identification for a Dow Corning implant is not acceptable in the Settlement Facility. We hope to resolve this issue and will continue our efforts to have the MDL 926 Claims Office award the remaining 50% payment to the claimants.

8. STATUS OF RUPTURE CLAIMS THAT HAVE BEEN DENIED

The CAC has heard from a large number of claimants and law firms who indicated that they recently received a new Notification of Status letter denying their rupture claim, even though the supporting documents described the implants as “leaking” and/or other evidence submitted documented a rupture. We are very frustrated by this situation, as we know you are as well, since we have confirmed the accuracy of the information we printed in our newsletter on rupture claims directly with the Claims Administrator. We will continue to work on this and, even though you may not receive a direct email or response back from us, please know that we are reading every single submission and bringing these to the attention of the claims office. If your claim has been denied, you should file a request for error correction and/or appeal to the Claims Administrator. If the Claims Administrator denies your appeal, you may still appeal to the Appeals Judge.

9. PREMIUM PAYMENTS

A common question we receive from claimants is “When will Premium Payments be paid?” The Court will make this determination based on findings and data provided by the Independent Assessor to the Finance Committee, the CAC and the Debtor’s Representatives. At this time, no determination has been by the Independent Assessor, and one is not expected this year. It is very important that claimants who may be eligible for a Premium Payment (i.e., those claimants with an approved Rupture and/or approved Disease claim in Class 5/6) keep their contact information current with the Settlement Facility.

IF YOU MOVE OR CHANGE YOUR NAME / ADDRESS, PLEASE NOTIFY YOUR ATTORNEY (IF YOU ARE REPRESENTED) OR THE SETTLEMENT FACILITY DIRECTLY (FOR THOSE CLAIMANTS WHO ARE NOT REPRESENTED). IT IS VERY IMPORTANT THAT YOU KEEP YOUR INFORMATION CURRENT.

10. MEDICAL RECORDS THAT DOCUMENT EXPLANT OR RUPTURE FOUND IN DOW CORNING’S FILES

The Settlement Facility and CAC have been provided with a CD of medical records that were recently culled from documents maintained by Dow Corning. The documents were selected as part of an agreed process in which Dow Corning allowed access to the records by the Settlement Facility and representatives of the CAC so that the records could be identified, copied and then reviewed to determine if they could supply the missing information needed on a claimant’s claim. If you want to determine if your operative and/or pathology reports or other information pertinent to your claim was located, call the Claims Assistance Program at their toll-free number (866-874-6099) or send them an email at info@sfdct.com.

11. SIXTH CIRCUIT COURT OF APPEALS RULES AGAINST DOW CORNING IN AN APPEAL BROUGHT BY THE COMMERCIAL CREDITORS’ COMMITTEE

On July 26, 2006, the Court of Appeals for the Sixth Circuit issued an opinion in an appeal filed by the Commercial Creditors’ Committee in the Dow Corning bankruptcy case. The appeal concerned the interest rate that the banks and other commercial creditors could charge Dow Corning during the pendency of the bankruptcy. The Court of Appeals ruled, in summary, that, “solvent-debtor cases present a situation where all parties ought to be granted the benefit of their bargains …” and ruled in favor of the commercial creditors. A copy of the opinion can be found on the website for the Court of Appeals for the Sixth Circuit under Case Nos. 04-1608/1643/1720/1721/1722, titled, “In re: Dow Corning Corporation, Debtor.”

12. DEADLINES TO FILE 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. If your claim form is not received by the deadline listed below, you will not be permitted to file a claim later.

Deadline Date Type of Deadline
June 1, 2007 Expedited Release submission deadline – Classes 5, 6.1 and 6.2
June 2, 2014 Explant Claims submission deadline for Classes 5, 6.1 and 6.2
June 3, 2019 Disease Claim submission deadline for Classes 5, 6.1 and 6.2


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: info@tortcomm.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

NOTICE: This document is copyrighted. You are not authorized to post it on any website without express, prior written permission of the Claimants’ Advisory Committee.



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