Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 1, No. 5, September 21, 2004
Welcome to the fifth e-newsletter 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. The CAC will publish this e-newsletter monthly unless there is urgent news that needs to be communicated sooner. 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 also visit the Settlement Facility website (www.dcsettlement.com) and CAC website (www.tortcomm.org) on a regular basis to download or view relevant documents and read updates and new information.
1. Orlando Informational Meeting Cancelled
Because of the active hurricane season in the Atlantic and Gulf of Mexico and to protect the safety of claimants, the Orlando Claimant informational meeting previously scheduled for Tuesday, September 21 has been cancelled. The meeting has not been rescheduled as of the date of this newsletter. We will keep you posted if it is rescheduled. Additional informational meetings for September are listed at the end of this newsletter.
The CAC is currently preparing a collection of "Helpful Tips" for claimants who wish to remain in the Settlement Option. We have provided a number of these tips in prior editions of the CAC newsletter and to claimants and attorneys who have attended the informational meetings. We intend to devote the entire edition of the December 2004 e-newsletter to publishing these "Helpful Tips" in an effort to give you the best information available to submit your claim.
2. Litigation Opt-Out Deadline (November 29, 2004) Approaching
The deadline to opt-out of the Settlement Option is fast approaching. All claimants who wish to opt-out must do so by checking Box 2B on the Participation Form. The Participation Form must be received at the Settlement Facility by November 29, 2004. If you wish to remain in the Settlement Option, then we urge you to check Box 2A on the Participation Form and return it as soon as possible.
There is no deadline to return the Participation Form is you wish to elect the Settlement Option because all claims that do not opt-out by November 29, 2004 will automatically be placed in the Settlement Option permanently.
There have been developments concerning litigation since our last newsletter on August 17, 2004. If you are considering opting out to litigate your claim, please read this section carefully.
3. Update on Pending Plan Interpretation Issues: Tissue Expander Eligibility and Tolling of "24 month/5 year" time frame for Disease Option 2 Claims. Oral argument for the two Plan interpretation disputes was held in Detroit on September 9th before U.S. District Court Judge Denise Page Hood. Under the Plan interpretation procedures, rulings on both motions are expected within 30 days of oral argument. For more information about what these Plan interpretation disputes involve we urge you to read the motions that have been filed. They are available on the CAC website under "Other Downloads."
- Master Complaint Form Filed. Case Management Order #1 provides at paragraph 6(a) that the National Liaison Counsel for Opt Out Claimants shall cause a Master Complaint against the Litigation Facility, Inc. (the entity that was formed to defend against opt-out claims) to be filed on or before 90 days after the Effective Date, and the Master Complaint should contain allegations that would be suitable for adoption by reference in individual cases for claimants who reject the Settlement Option and elect to litigate. The Master Complaint was filed with the U.S. District Court for the Eastern District of Michigan on August 17, 2004, as was a Complaint and Adoption by Reference form that opt-out claimants can use. These documents are located on the CAC website under "Litigation." In addition, there are ongoing discussions to finalize Case Management Order #2 and the Questionnaire that all opt-out claimants will be required to complete. Both of these are very close to being finalized and will provide, for example, that opt-out claimants will be required to complete an extensive questionnaire by February 28, 2005. We will provide additional information about litigation activities and orders as it becomes available, so please continue to check back to the CAC website. You can also contact the Office of Plaintiffs' Liaison Counsel by visiting their website at www.oplc.org.
- Class 9 and 10 Other Products Claimants to receive letter from Settlement Facility concerning opting out. The Claimants' Advisory Committee and Debtor's Representatives recently agreed that the Settlement Facility should send a Notice to claimants who have a Dow Corning implant (other than a breast implant) concerning their opt-out right. The letter will likely be posted this weekend or early next week and will unequivocally inform claimants in Classes 9 and 10 that if they have a "not-Covered Other Product" (a Dow Corning implant other than a breast implant), they are not eligible for any compensation from the Settlement Option. Claimants with a not-Covered Other Product (or anyone else who wants to opt-out to litigate their claim) must check Box 2B on the Participation Form and return it by November 29, 2004 if they wish to pursue their claim, and then they must complete a questionnaire by February 28, 2005. If you have a "not-Covered Other Product" and do not opt-out by returning the Participation Form by November 29, 2004, then you will be barred from litigation and will not receive any compensation for your implant or product from either the Litigation or Settlement Option. The final letter will be available on the CAC website under the heading "Class 9, 10.1 and 10.2" as soon as it is finalized.
4. Claims Processing Information on Claimants Who Elect the Settlement Option. Many claimants and attorneys have contacted the CAC and the Settlement Facility to ask about the status of their claim submission. To help answer some of these questions, we have prepared some information that may help explain why you have not heard anything on your claim submission. Please keep in mind that the CAC does not have access to any individual claimant files and cannot answer questions about individual claimant submissions. All such inquiries should be directed to the Claims Assistance Program (CAP) at email@example.com or by calling toll free to 1-866-874-6099.
5. Product ID Issues
- The Settlement Facility will review claims for settlement benefits only if you first submit the Proof of Manufacturer Form and have acceptable proof of an eligible implant and if you either submitted a valid Waiver of Opt-Out Form or elected Box 2A (Settlement) on the Participation Form. It is very important that you submit the Proof of Manufacturer form and supporting documentation or your claim will not be reviewed.
- If you received a Notification of Status letter stating that your implant proof is "Unacceptable" then the Settlement Facility will not review your claim for explant, rupture, disease or Medical Condition (available in Class 9 and 10) until you first provide acceptable documentation as described in the Proof of Manufacturer Claim Form Instructions and the new protocols listed on the Settlement Facility website. Again, as noted above, it is very important to submit the Proof of Manufacturer form and supporting documentation and to work to correct any deficiencies.
- Claimants who have a Dow Corning tissue expander implanted in the breast have not received a letter about their product identification submission because these claims are on hold pending the decision of Judge Hood (see paragraph 3 above).
- Claimants whose product identification is based on an affirmative statement from a doctor stating that (s)he used only Dow Corning breast implants during a certain time may not have received a Notification of Status letter from the Settlement Facility yet. The Settlement Facility has found that some doctors issued inconsistent statements about their implant usage (i.e., one statement says that the doctor implanted only Dow Corning implants in 1973 but the doctor signed another statement that he used only Surgitek implants in 1973), or the statements may be inconsistent with the medical records (i.e., the statement says the doctor implants only Dow Corning implants in 1973 but another claimant produced medical records showing that the doctor implanted her in 1973 and the records have labels from Surgitek). The Settlement Facility, CAC and Debtor's Representatives are currently working through this issue to determine how to proceed with the inconsistent or conflicting affirmative statements from doctors.
- Claimants who did not file a timely Proof of Claim form but who filed a Notice of Intent form by August 30, 2004 have had their claims placed on hold pending the results of the Notice of Intent Survey and resolution of the motion that Dow Corning filed earlier this year. This means that if you filed a Notice of Intent and do not have a matching co-debtor claim, the Settlement Facility is not reviewing your Proof of Manufacturer or settlement benefit claims at this time.
- If you have a Bristol, Baxter or 3M silicone gel breast implant and opted out of the Revised Settlement Program or the Foreign Revised Settlement Program, the Settlement Facility needs you to send them a letter stating whether you received compensation as an opt-out claimant. If you did receive compensation (regardless of the amount), then you should write a letter to the Settlement Facility informing them of this and your letter will automatically serve as acceptable proof of your Bristol, Baxter of 3M implant.
- Despite our efforts to inform claimants to submit their forms and materials last year when claim forms were mailed in February 2003, it appears that the vast majority of claimants waited until the Effective Date (June 1, 2004) to do so. This has, unfortunately, resulted in a significant backlog of claims pending for review with the Settlement Facility. Every effort is being made to hire the staff necessary to have claims reviewed promptly and efficiently. This is an issue that is of the highest priority to the CAC.
6. Pending Issues That The CAC Is Working On. The CAC has a number of issues that we are working on in addition to those issues identified above. Some of the many issues include:
- Multiple Manufacturer Reduction of 50% in the Revised Settlement Program. As noted in our last e-newsletter, there is a pending issue before MDL Judge U.W. Clemon regarding whether the MDL 926 Claims Office should apply the 50% multiple manufacturer reduction to various types of implants designated as Dow Corning by the co-defendants in the Revised Settlement Program, such as Cronin and "silastic" (all small letters). The CAC has submitted a position statement to the MDL 926 Judge and MDL parties urging the MDL Court to conform the product identification protocols for Dow Corning breast implants in the RSP to the ones provided in the Joint Plan of Reorganization of Dow Corning (the CAC letter is available to read on the CAC website under "Other Downloads") If the MDL Court adopts our position as we hope, then this would mean that RSP claimants who received a 50% reduction in their compensation based on the former product identification protocols may apply for the remaining 50% compensation from the RSP if their product identification for Dow Corning is found to be unacceptable by the Settlement Facility. This issue is pending. As soon as we learn anything additional about the outcome or efforts to resolve the problem, we will provide this information in the e-newsletter and CAC website.
- Deficient or Unacceptable Product ID Submissions. The CAC is currently working with Dow Corning to address certain categories of product identification submissions that are deficient or unacceptable as defined by the Settlement Plan. Our goal is to have additional protocols developed to address some common product ID situations that we have seen, but this is by no means guaranteed. We hope to report more on our progress in our next newsletter.
- Documents in the National Document Depository. During the MDL 926 discovery phase, Dow Corning provided hundreds and hundreds of boxes of documents to the National Document Depository (which is now located in Birmingham, Alabama). Some of these boxes contain medical records that Dow Corning received over the three decades that it manufactured implants. A lot of the correspondence and medical records came from plastic surgeons who wrote to Dow Corning either reporting on their patient's experience with Dow Corning implants or submitting the records to receive reimbursement from Dow Corning for the costs of purchasing the implants. Unfortunately, all of the medical records have had the names of patients removed to protect patient confidentiality, so it is not possible at this time to correlate the medical records in the National Document Depository to any individual claimant. The CAC has requested that Dow Corning provide either a database or a set of documents that have not been redacted so that claimants can search the records to determine if their medical records are there. These documents may contain valuable information on product identification, explant and, most importantly, rupture proof. This could be a significant help to claimants whose doctors and hospitals have destroyed the medical records in their possession, but whose records may now still exist in the National Document Depository. We will report on the progress of our efforts in future newsletters.
- Implant Review by Dow Corning. As reported in earlier e-newsletters, Dow Corning has agreed to review implants to determine if they were manufactured by Dow Corning. If you are interested in submitting your implants for review, please contact the Claims Assistance Program (CAP) at firstname.lastname@example.org or at their toll free number of 1-866-874-6099. Please do not send your implants to either the Settlement Facility or to Dow Corning until you first contact the Claims Assistance Program for information on how to do this under the protocols that have been established.
7. Informational Meetings in September 2004. Please mark your calendar to attend one of the following informational meetings scheduled in September 2004. The meetings are sponsored by the Settlement Facility and the Claimants' Advisory Committee and will address issues related to both settlement and litigation.
- Lien Dispute Resolution Procedures
- Release Dispute Procedures
- Australian processing option
- Motion on eligibility of claimants who signed a release in reliance on the original global settlement provisions
- Plan interpretation questions such as returning Expedited Release checks uncashed to apply for a Disease claim
- Additional Questions and Answers
- Additional Product ID protocols
- Notice of Intent Survey results
- Working with the Independent Assessor on claims payments
- Working with the Settlement Facility on various issues affecting tort claimants who elect the Settlement Option
||Sheraton Newark Airport Hotel
||128 Frontage Road
||Thursday, Sept. 23, 2004
||The Fairmont Hotel
||1717 North Akard Street
||Tuesday, Sept. 28, 2004
||Alexis Park Resort
||375 East Harmon Avenue
||Thursday, Sept. 30, 2004
Filing Deadlines. Please mark your calendar with the claim submission deadlines in 2004. 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
|October 30, 2004
||Deadline for Notice of Intent claimants to return Notice of Intent survey to Settlement Facility
|November 29, 2004
||Deadline to return Participation Form to Settlement Facility if you want to opt-out
9. 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. (A "Notification of Status" letter is one that describes the results of the review of your claim. If the claim is approved, you will receive an "Award Letter." If the claim has a deficiency, you will receive a "Notification of Status" letter. 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
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