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

CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 5, No. 8, August 29, 2008



This is the 48th e-newsletter (Vol. 5, 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, click here 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 SettlementFacility at info@sfdct.com or 866-874-6099. The Claimants' Advisory Committee does not have access to individual claimant files to answer these kinds of questions.

 

 

 

1.     COURT ISSUES RULING ON WHETHER THE MDL-926 CLAIMS CAN ASSERT LIENS AGAINST CLAIMANTS WITH APPROVED CLAIMS FROM THE SETTLEMENT FACILITY

 

On August 8, 2008, the District Court issued a ruling on the motion that was filed by the MDL 926 Settlement Fund asserting a lien certain claimants in the Dow Corning case.  Last year the MDL 926 Settlement Fund filed a motion before Judge Hood asking the court to allow it to receive a portion of the payments from certain approved claims from the SF-DCT because it claimed that these claimants had been paid 100% in the Revised Settlement Program.  The Claimants' Advisory Committee filed a response to the motion urging the Court to deny it on the grounds that the MDL 926 Settlement Fund did not have standing to assert a lien against claimants in this separate settlement, and that the MDL 926 Settlement Fund did not meet the legal criteria to assert an "equitable lien." 

 

The District Court agreed with the CAC's position, ruling that:

 

    "The MDL-926 Settlement Fund has not pointed to any contractual or any other right to a portion of the payments made to SF-DCT claimants.  The MDL-926 Settlement Fund cannot point to any language in the RSP Plan nor to any documents signed by the RSP claimants which entitles the MDL-926 Settlement Fund to seek recovery of any monies if the RSP claimant at some point in time discovers that the RSP claimant also had a Dow Corning implant.  The MDL-926 Settlement Fund's theory that it should recover 50% of what it had already paid to the RSP claimants because the RSP claimants are now before the SF-DCT is not supported by any of the RSP documents submitted by the parties.  The SF-DCT and Dow Corning were not part of the RSP.  The RSP claimants who received payment from the MDL-926 Settlement Fund did not 'promise' to repay the MDL-926 Settlement Fund if at any time the RSP claimants eventually discovered that an 'unknown' implant was in fact a Dow Corning implant."  (p. 12)

 

As a result, the Court ruled that the MDL-926 Settlement Fund "cannot meet the constitutional requirement of standing nor the standing required under the Lien Procedures entered by this Court."  (p. 13) 

 

The Court also ruled that the MDL 926 Settlement Fund failed to meet the legal criteria to assert an equitable lien.  Accordingly, the Court denied the MDL 926 Settlement Fund's motion.

 

The Court did rule that if claimants agreed to the liens, then this could constitute a "new" agreement between the MDL 926 Settlement Fund and the SF-DCT claimant, and this new agreement would be honored.  The MDL 926 Settlement Fund has 30 days to file an appeal and, if no appeal is filed, payments to approved claimants will be sent in the next payment batch.

 

A copy of the ruling is available on the CAC's website (www.tortcomm.org) under the left navigation tab entitled "Court Orders."

 

2.     SETTLEMENT FACILITY TO RELEASE INFORMATION ON ATYPICAL NEUROLOGICAL DISEASE SYDROME (ANDS) CLAIMS ON SEPTEMBER 2, 2008

 

The Claims Administrator and the parties have submitted a proposed order to the Court revising the dates for release of claims information for Atypical Neurological Disease Syndrome (ANDS), Systemic Lupus Erythematosus (SLE), and Atypical Connective Tissue Disease (ACTD). The proposed order would also change the final cure deadline dates for these three diseases (and only these three diseases) as follows:

 

Atypical Neurological Disease Syndrome (ANDS) – information to be released on Tuesday, September 2, 2008; final cure deadline for claims that have been reviewed and found deficient and whose cure deadline for ANDS will expire on or before March 1, 2009 is March 2, 2009.

 

Systemtic Lupus Erythematosus (SLE) – information to be released on Friday, October 10, 2008; final cure deadline for claims that have been reviewed and found deficient and whose cure deadline for SLE will expire on or before April 9, 2009 is April 10, 2009.

 

Atypical Connective Tissue Disease (ACTD) – information to be released on Monday, December 1, 2008; final cure deadline for claims that have been reviewed and found deficient and whose cure deadline for ACTD will expire on or before May 31, 2009 is June 1, 2009.

 

IMPORTANT: If you have a deficiency in your claim submission, you can ask that a nurse reviewer call you to explain the deficiency and what you need to do to correct or cure the problem. We encourage claimants – particularly those that do not have an attorney to assist them with their claim – to call the Settlement Facility at their toll free number – 1-866-874-6099 – and seek assistance with understanding any defiencies in their claim. Do not wait until the last minute to try and cure the deficiency. It can take several months to obtain needed medical records and/or to schedule an appointment to address a symptom or disability deficiency.

 

If you need assistance in curing a deficiency in your disability submission, you can contact the CAC at info@tortcomm.org for helpful questionnaires and sample letters to use.

 

3.     REVISED SETTLEMENT PROGRAM (RSP) TO END IN DECEMBER 2010

 

The Revised Settlement Program in MDL-926 sponsored by Baxter, Bristol and 3M will end on December 15, 2010. This means that all women who have an implant covered by the RSP must submit claims for Explantation or Long Term Disease Benefits to the MDL-926 Claims Office by the December 2010 deadline or they will be forever barred from asserting that claim. Please note that this deadline applies only to claimants who have a claim in the RSP. The deadline does not apply to claimants in the Dow Corning Plan.

 

To inform claimants and attorneys about the conclusion of the RSP, the MDL-926 Claims Office will mail letters to attorneys, certain doctors and to any claimant who filed a claim in the RSP beginning in September 2008 and continuing throughout the next several months. If you have any questions about your claim in the RSP, you can contact or visit the MDL-926 Claims Office through the links on the CAC website (www.tortcomm.org). If you have questions about your claim in the Settlement Facility, you can contact the SF-DCT by email to info@sfdct.com or by calling toll-free to 1-866-874-6099.

 

IMPORTANT! Women who have a Dow Corning breast implant and an implant covered by the RSP should be mindful of the December 15, 2010 deadline if they have a disease claim because of the "multiple manufacturer reduction" or MMR that applies in both the RSP and the Dow Corning Plan. For example, if you have a Dow Corning and Baxter breast implant and you have a claim for one of the following diseases -- SLE, GCTS, Scleroderma, Polymyositis or Dermatomyositis -- then you must submit your disease claim to the MDL-926 Claims Office by December 15, 2010. The CAC is working with the Claims Administrator for the SF-DCT to make sure that all pending Dow Corning disease claimants who also have a Bristol, Baxter or 3M breast implant will be notified of their disease review before December 15, 2010.

 

4.     MDL-926 UPDATE

 

The MDL-926 Court approved an Order in May 2008 that approves a form Affidavit of Heirship and Limited Indemnity Agreement to be used as a means to effect payment to deceased claimant's families without the need to open a probate estate. A copy of the Order and Affidavit are available for download on the MDL-926 website which you can access from a link on the CAC website (www.tortcomm.org).

 

Please note that the Settlement Facility uses a slightly different form for small estate claims. You can download a copy of the Settlement Facility form on the CAC website under the left navigator heading entitled "Other Downloads."

 

5.     SETTLEMENT FACILITY PAYMENTS TO CLAIMANTS

 

As of July 31, 2008, the Settlement Facility – Dow Corning Trust reports that claimants have cashed checks in the Dow Corning Settlement Fund totalling $1.028 billion dollars.

 

Classes 5, 6.1 and 6.2 – Dow Corning Breast Implant Claimants

 

Checks totalling over $416 million dollars have been cashed by 21,775 approved rupture claimants. In addition, approximately 22,041 approved disease claimants have cashed checks totalling approximately $402 million. The approval rate for Proof of Manufacturer (POM) continues to remain at approximately 82% for Dow Corning breast implant claims. A breakdown of the payments cashed from June 1, 2004 through July 31, 2008 by class and benefit type is listed below:

 

Cumulative Cashed Checks for Payments to All Classes (including NOI claims)

June 1, 2004 – July 31, 2008

 

Class Rupture Explant Increased Explant Explant Assistance Program Expedited Release Disease Medical Conditions in Class 9/10 Other Products Premium Payment Total
Class 5 $403,441,611.82 $132,976,023.72 n/a $2,666,091.10 $29,430,490.85 $398,332,498.01 n/a n/a $966,846,715.50
Class 6.1 $ 12,076,350.51 $ 3,826,179.80 n/a $ 9,000.00 $ 2,383,592.01 $ 3,385,618.48 n/a n/a $ 21,680,740.80
Class 6.2 $ 497,000.00 $ 57,750.00 $159,000 $ 0.00 $ 41,300.00 $ 183,750.00 n/a n/a $ 938,800.00
Class 6.2: 2 n/a n/a n/a n/a $ 76,800.00 n/a n/a n/a $ 76,800.00
Class 6.2: 3 n/a n/a n/a n/a $ 61,200.00 n/a n/a n/a $ 61,200.00
Class 7 n/a n/a n/a n/a $20,183,120.00 n/a n/a n/a $ 20,183,120.00
Class 9 $ 125,000.00 n/a n/a n/a $ 1,708,145.10 n/a $2,792,500 $13,262,500 $ 17,888.145.10
Class 10.1/2 $ 6,000.00 n/a n/a n/a $ 142,300.00 n/a $ 202,875 $ 933,000 $ 1,284,175.00
Total $416,145,962.33 $136,859,953.52 $159,000 $2,675,091.10 $54,026,947.96 $401,901,866.49 $2,995,375 $14,195,500 $1,028,959,696.40

 

 

 

Cumulative Number of Checks Cashed for Approved Claims (including NOI claims)

June 1, 2004 – June 30, 2008

 

Class Rupture Explant Increased Explant Explant Assistance Program Expedited Release Disease Medical Conditon (Class 9/10) Other Products Premium Total
Class 5 20,688 26,861 n/a 536 14,872 21,648 n/a n/a 84,605
Class 6.1 1,016 1,291 n/a 3 1,992 353 n/a n/a 4,655
Class 6.2 71 33 53 0 59 40 n/a n/a 256
Class 6.2: 2 n/a n/a n/a n/a 64 n/a n/a n/a 64
Class 6.2: 3 n/a n/a n/a n/a 102 n/a n/a n/a 102
Class 7 n/a n/a n/a n/a 12,080 0 n/a n/a 12,080
Class 9 25 n/a n/a n/a 1,709 n/a 464 467 2,665
Class 10.1/2 2 n/a n/a n/a 238 n/a 60 58 358
Total 21,802 28,185 53 539 31,116 22,041 524 525 104,785

 

 

 

Class 7 – Silicone Gel Material Claims

 

POM Review: The Settlement Facility – Dow Corning Trust is near completion of its manual review of Class 7 Proof of Manufacturer forms. The remaining claims to be reviewed are primarily foreign claims that require translation.

 

Disease Cash-Out Offers: A total of 7,078 claimants in Class 7 have been sent the $3,000 Disease Cash-Out offer. Of this number, 62% have cashed the check and accepted the payment, 888 have returned the check and asked for a full disease review, and 1,801 checks are pending (they have not cashed the check or returned it to the SF-DCT). Most of the claimants who rejected the offer have applied for a Disease Option 1 claim (645) and, of this number, 474 reviews have been completed. No claims in Disease Option 2 for Class 7 have been done. The Settlement Facility has begun issuing Notification of Status letters; however, no Class 7 disease claims can be paid until all disease claims have been reviewed and the one-year time deadline to cure deficiencies has expired. This will take at least another year or more to complete.

 

The total payout of cashed checks from the capped $57.5 million NPV fund through July 31, 2008 is $20,183,120. Approximately 12,080 Class 7 claimants have cashed checks for an Expedited Release Payment ($600), a Foreign Gel Payment ($600) or a Disease Cash-Out Payment ($3,000). Appeals contesting the marshalling requirement remain pending.

 

 

Class 7 – Silicone Gel Material Claims

# Class 7 Forms Filed

54,735

# of claims that are NOT eligible based on POM review

9,230

# of claims that failed marshalling

28,864

Foreign Gel Claims Approved & Paid $600

667

Expedited Release Claims Approved & Paid $600

6,681

# of Disease Cash-Out Offers of $3,000

7,078

TOTAL PAYMENTS OR CASH-OUT OFFERS

14,426

TOTAL # of Claims Paid (excluding those who rejected the Cash-Out Offer)

12,080

TOTAL AMT PAID as of 05/31/2008

$20,183,120

 

 

Update on NOI Claims Review

 

Notice of Intent (NOI) Claimants are subject to the Consent Order approved by the District Court on September 7, 2007 (a copy of which is available on the CAC website – www.tortcomm.org – under the left navigation tab entitled "Court Orders"). The Consent Order provides that all NOI claimants who have a Dow Corning breast implant have until October 20, 2008 to submit claim forms and supporting documents for Proof of Manufacturer, Explant and Rupture.

 

Approved NOI Explant and Rupture claims are paid out of a separate fund totalling $30 million. To date, 1,747 claims have been approved totalling $12,818,100.

 

The Settlement Facility reports that a significant number of NOI claimants have not yet filed claim forms. We urge all NOI claimants to submit their claim forms and documents as soon as possible. Currently, there is no backlog to review NOI claims and, if your claim is approved, you can receive payment promptly.

 

 

NOI CLAIMS

 

 

 

 

 

 

 

CLASS 5 & 6.1 & 6.2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOTAL FORMS FILED

FORMS FILED WITH POM

ACCEPTABLE POM

APPROVED

COMPLETE

# CLAIMS PAID

TOTAL AMT PAID

RUPTURE

1861

1825

1221

854

1,200

823

$8,229,800

MEDICALLY CONTRAINDICATED

15

14

11

 

8

 0

 

EXPLANT

1390

1374

1149

986

1,133

957

$4,712,167.7

INCREASED EXPLANT

111

111

 1

 

 

 0

 

EAP

311

304

240

12

19

11

$55,000

TOTALS

3,688

3,628

2,622

1,852

2,360

1,791

$12,996,967

 

 

 

6. STATUS OF DISEASE PROCESSING AT THE SETTLEMENT FACILITY

 

Disease Option 1 processing is essentially current.

 

For Disease Option 2, the status of processing is:

 

SLE – the SF-DCT is processing SLE claims filed in December 2006 and RAI's (Review of Additional Information) that were submittted in December 2007.

 

GCTS – the SF-DCT is processing GCTS claims filed in June 2005 and RAI's submitted in July 2007.

 

Scleroderma – the SF-DCT is processing Scleroderma claims filed in November 2007 and RAI's that were submitted in November 2007.

 

Polymyositis (PM)/ Dermatomyositis (DM) – the SF-DCT is processing PM/DM claims filed in September 2007 and RAI's that were submitted in July 2008.

 

 

7. INCOMPLETE, MISSING AND INACCURATE ADDRESS PROBLEM AT THE SETTLEMENT FACILITY

 

The Settlement Facility reports a serious and increasing problem it has experienced in trying to locate claimants who have an approved claim ready to be paid who have moved and have not provided the Settlement Facility with a current address. To date, $56 million has gone unclaimed because of this problem. This is also a significant problem for law firms whose clients have moved and did not inform their attorney of their current address.

 

When an award letter or check is returned to the Settlement Facility because of a bad address problem, the Settlement Facility is forced to expend its limited resources to try and locate claimants or, in some cases, attorneys, who have moved or who provided an incomplete or inaccurate address. If you have moved or need to update your address and contact information, please let the Settlement Facility know by writing a letter with your name, SID number, and old/new addresses and other contact information to:

 

Settlement Facility – Dow Corning Trust

P.O. Box 52429

Houston, TX 77052-2429

 

If you are represented by an attorney, please keep your contact information updated with the law firm as well. Many law firms are holding checks either uncashed or on hold in their escrow account waiting to locate a client who has moved.

 

8. PREMIUM PAYMENTS FOR DOW CORNING BREAST IMPLANT CLAIMANTS

 

The Settlement Facility recently posted on its website the Executive Summary of the report from the Independent Assessor for the first quarter of 2008. It states:

 

The Independent Assessor of the Settlement Facility – Dow Corning Trust (SF-DCT) reviewed the liabilities and assets of the facility as of the end of the first quarter of 2008 and estimated that the facility would remain solvent under each of a range of liability and asset assumptions tested. Until patterns of filing and claims acceptance become more certain, use of the current estimates for the purpose of determining whether premium payments can be made is premature.

 

 

We continue to receive a large number of calls and inquiries about when Premium Payments will be paid. The CAC does not know when Premium Payments for Dow Corning breast implant claimants will be approved or paid. As we've reported in past newsletters, the decision to recommend to the District Court that Premium Payments be made is up to the Finance Committee and is based on the Independent Assessor's report. For more information on the process, please review our past newsletters.

 

9. OTHER DEADLINE REMINDERS!

 

Please mark your calendar with the following claim submission deadlines. Note that different deadlines apply to Notice of Intent (NOI) Claimants and Late Claimants. Please note that most of these deadlines mean that your claim forms and materials must be received by the SF-DCT 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

October 20, 2008

NOI CLAIMANTS' Deadline to submit Explant and/or Rupture claims – Classes 5, 6.1 and 6.2 (this deadline only applies to NOI claimants; it does NOT apply to timely filed claimants)

November 3, 2008

Cure Deadline for certain claimants who previously filed a claim for General Connective Tissue Symptoms (consult the SF-DCT about your specific cure deadline)

January 21, 2009

FILING DEADLINE for LATE CLAIMANTS in CLASS 5 AND 6 to submit all claim forms and supporting documents. This deadline only applies to LATE CLAIMANTS in Class 5 and 6.

March 2, 2009

Cure Deadline for certain claimants who previously filed a claim for Atypical Neurological Disease Syndrome (ANDS) (consult the SF-DCT about your specific cure deadline)

April 10, 2009

Cure Deadline for certain claimants who previously filed a claim for Systemic Lupus Erythematosus (SLE) (consult the SF-DCT about your specific cure deadline)

June 1, 2009

Cure Deadline for certain claimants who previously filed a claim for Atypical Connective Tissue Disease (ACTD) (consult the SF-DCT about your specific cure deadline)

June 2, 2014

Explant Claims submission deadline for timely filed claimants in Classes 5, 6.1 and 6.2 (NOTE: this deadline does NOT apply to NOI claimants or Late Claimants)

June 3, 2019

Disease or Expedited Release Claim submission deadline for all claims in Classes 5, 6.1 and 6.2 (this deadline does NOT apply to Late Claimants)


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 Post Office Box address for the CAC at:

Claimants' Advisory Committee
P.O. Box 665
St. Marys, Ohio 45885

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