Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 1, No. 8, December 14, 2004
Welcome to the 8th 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. 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. To contact the CAC, send an email to: email@example.com or send a letter via U.S. mail to: P.O. Box 61406, Houston, Texas 77208-1406.
We are not able to answer questions about a claimant's individual status because we do not have access to individual claimant files. All questions about claim status should be directed to the Settlement Facility at firstname.lastname@example.org or by calling 1-866-874-6099.
IMPORTANT NOTE: We are continuing to gather a series of "Helpful Tips" on claims submissions that we will make available in the next newsletter. Several issues that directly impact on our Helpful Tips are currently under discussion and remain unresolved. We hope to have them resolved before we publish them.
1. CLAIMS PROCESSING STATUS
"What is the status of my claim" and other claims processing questions are the most frequent comments we receive from claimants and attorneys. We realize that everyone wants to know the status of their claim, and you have asked why haven't you heard anything or received payment on your claim. We continue to work with the Claims Administrator and parties on this important issue, and we have relayed yours (and our) concern that claims processing and payment appears to be going slowly. As we work through this issue, there are several important things for you to know:
2. OPT OUT AND LITIGATION UPDATE
- The Claims Administrator informs us that the interactive computer system that will allow you to check on the status of your claim on-line with the Settlement Facility should be ready in early 2005. Hopefully, this system will allow you to confirm that the Settlement Facility has received your claim forms and materials and to determine whether the claim is being reviewed. We are working with the Claims Administrator now to preview the interactive systems to ensure that it protects every claimant's confidentiality and allows for easy use to access your claim information. We hope to report more on this in a future newsletter.
- The Claims Administrator has informed us that claims are being paid on a monthly basis and over $100 million has been paid for approved claims since June 1, 2004. There is a significant backlog of claims to be reviewed though, and the CAC is working cooperatively with the various parties to determine how best to expedite the processing and payment of the claims that are pending.
- We are working with the Court and parties to make public a summary of claims processing data by class.
3. ORLANDO CLAIMANT MEETING RESCHEDULED
- The opt-out deadline of November 29, 2004 has now passed, and the Settlement Facility is reviewing the number of timely opt-out claims submitted. Because there is a 30 day period provided in the Claims Resolution Procedures for claimants to change their mind and rescind their opt-out election, the number of opt-out claims will not be certain or final until at least 30 days from November 29 has passed. We hope to be able to provide information about opt-out claims in January 2005 or soon thereafter.
- REMINDER TO COMPLETE LITIGATION QUESTIONNAIRE: For those claimants who elected litigation, you must complete the Litigation Questionnaire and mail it postmarked on or before February 28, 2005. You can access a copy of the Questionnaire on the CAC's website (you can now download the Questionnaire) or you can complete a copy of the Questionnaire on-line at www.implantquestionnaire.org (this website is maintained by the Litigation Facility). ONLY OPT-OUT CLAIMANTS (AND CERTAIN CLAIMS CHANNELED TO THE LITIGATION OPTION) NEED TO COMPLETE THE QUESTIONNAIRE.
- If you are in one of the settlement classes (Class 5, 6.1, 6.2, 7, 9, 10.1 or 10.2) and you did not submit a Participation Form by November 29, 2004, then your claim is placed automatically - and permanently - in the Settlement Option. You cannot opt-out at a later date.
- On December 10, 2004, Judge Denise Page Hood entered an Order appointing several lawyers to serve in the capacity as "Representatives of Opt Out Claimants." While these attorneys will not be representing individual opt out claimants in this capacity, they are charged with formulating and presenting positions on substantive and procedural issues that affect more than individual cases as they arise during the litigation. The Representatives are Ralph Knowles, Leslie Bryan and Fredric Ellis. The Court also appointed the Office of Plaintiffs' Liaison Counsel in MDL-926 to serve as Liaison Counsel in the Litigation Option (www.oplc.org or email@example.com). A copy of the Order will be available to read on the CAC website under the heading of "Opt-Out Information for Litigation."
- The Breast Implant Litigation Group (BILG) of the American Trial Lawyers Association (ATLA) has scheduled a meeting of attorneys representing breast implant claimants for Tuesday, February 1, 2005. The meeting will be held in conjunction with the annual ATLA Winter Convention in Palm Springs, California. The meeting is open to any attorney who is a member of ATLA and a member of BILG (you can join BILG at the meeting for a cost of $50). We are working with the leadership of BILG - Karen Read - to coordinate a presentation or discussion of settlement and litigation issues from representatives of the CAC and Opt-Out Claimants. If you are interested in attending, please send an RSVP to Karen Read at firstname.lastname@example.org.
Because the claimant meeting scheduled for Orlando, Florida in September 2004 was cancelled due to the active hurricane season, the Claimants' Advisory Committee has rescheduled the meeting for Friday, January 21, 2005 at the following location:
Hyatt Regency Orlando International Airport
9300 Airport Blvd.
Orlando, FL 32827
The presentation and Q&A session will be from 9 a.m. to 12 p.m. Eastern Time. All claimants and attorneys representing claimants are welcome to attend. We look forward to seeing you there. If you are planning to attend, we ask that you send an RSVP to us at: email@example.com
4. CAC FILES MOTION FOR DISCLOSURE OF SUBSTANTIVE CRITERIA CREATED, ADOPTED AND/OR APPLIED BY THE SETTLEMENT FACILITY
5. SERVICE OF MOTIONS AND/OR LETTERS TO THE COURT
- On December 8, the CAC filed a motion with Judge Denise Page Hood seeking disclosure of substantive criteria created, adopted and/or being applied by the Settlement Facility and a request for expedited consideration. Specifically, the motion discusses the issue of claimants who have tried to qualify for Disability "A" (100%) under Disease Option 1 but were found deficient because they did not document a disability of vocation and self-care. The Plan language - which is based on the language from the original global settlement and the Revised Settlement Program - provides that a claimant need only document disability for vocation or self-care activities to qualify. The CAC requested that the Claims Administrator disclose the interpretations adopted by the MDL Court and MDL Claims Administrator, but she responded that she was not able to without Court order since she received the annotations under provision of confidentiality. We will report in future newsletters on the disposition of this motion, but if you have a deadline running to cure a deficiency based on an Option 1 Disease / Disability Level "A" claim, please send us a note to firstname.lastname@example.org.
- Plaintiffs' counsel in MDL-926 filed a similar motion before Judge U.W. Clemon as well. Copies of both motions can be accessed on the CAC's website under "Other Downloads."
- A similar motion for disclosure of criteria was also filed before Judge Hood by counsel representing numerous settling claimants in Louisiana.
If you have an issue about the Settlement Option that you would like to address with the Court, we urge you to first contact the CAC (email@example.com) and/or the Claims Assistance Program (firstname.lastname@example.org) to discuss the issue or your concerns before you submit something to the Court. In some instances, you may not be permitted under the Plan to file a motion with the Court because the Plan provides a process to address individual claim issues. If you have a substantive dispute or concern, then pursuant to Section 3.01 of the "Stipulation And Order Establishing Procedures For Resolution Of Disputes Regarding Interpretation Of The Amended Joint Plan" dated June 10, 2004, you may file a motion (not a letter) with the United States District Court for the Eastern District of Michigan. Motions should be served on the official committees in the case as noted below:
Claimants' Advisory Committee
P.O. Box 61406
Houston, TX 77208-1406
c/o Deborah E. Greenspan
The Feinberg Group
1120 20th Street NW, Suite 740 South
Washington DC 20036-3437
6. STATUS OF NOTICE OF INTENT SURVEY
The deadline to submit a completed Notice of Intent survey was November 2, 2004. The survey results are currently being reviewed to determine if participation of "non-matched" NOI filers in the Settlement Option would materially impact payments to other claimants or exceed $25 million (for Class 5 NOI filers). The CAC has requested additional information from the Claims Administrator so that we can discuss the issue further with Dow Corning. We do not have an anticipated date that this will be resolved; however, we are mindful that claimants need to have resolution and will work as expeditiously as possible to either resolve this and/or submit the issue to the Court for a decision.
7. ACCESS TO UNREDACTED MEDICAL RECORDS IN DEPOSITORY
The CAC is near completion of an agreement with Dow Corning that will allow the CAC to have access to the unredacted medical records that Dow Corning produced to the National Depository in MDL-926. The agreement would maintain the confidentiality of all such records and the identity of implant claimants, but it would allow the CAC to review the records and develop a database of claimants whose medical records are in the Depository. When the database is completed, claimants and attorneys can determine if their medical records - and possibly their only proof to support product ID, explant or rupture - are part of these records. We will update the status of this agreement in our next newsletter but we are tentatively scheduling this project for completion by the end of January 2005.
8. REVIEW OF IMPLANTS FOR PRODUCT IDENTIFICATION BY DOW CORNING
As of November 30, 2004, the Settlement Facility has sent letters to approximately 73 claimants asking them to participate in a "pilot" program whereby Dow Corning has agreed to review removed implants to determine if they were made by Dow Corning. Of the 73 persons, 8 have submitted their implant(s) to Dow Corning and 4 additional claimants have indicated that they would send their implants for review. The parties are evaluating the program and hope to finalize the process for going forward. If you have implant(s) that you want to have reviewed but have not done so through traditional means, i.e., having a doctor or other qualified expert review the implants for a "Unique Identifier," then we recommend that you contact the Claims Assistance Program (email@example.com) and ask that your name be placed on a list of persons interested in the review process by Dow Corning.
For claimants who do not wish to submit their implants to Dow Corning for possible identification, you may consider contacting one of the following individuals who conduct implant reviews for product ID purposes:
Michael Middleton, Ph.D., M.D.
UCSD School of Medicine
410 Dickinson Street
San Diego, CA 92103-8749
Pierre Blais, Ph.D., F.C.I.C.
486 Westminster Avenue
K2A 2V1, Canada
There are others who provide product ID services as well and we will work to include their names and contact information in future newsletters.
9. UPDATES ON PENDING MATTERS
10. FILING DEADLINES FOR CLAIMS
- Tissue Expanders and Tolling Plan Interpretation Disputes
These Plan interpretation disputes remain pending with the Court. As soon as we receive an order from the court, we will post it on the CAC website and include it in the next CAC newsletter. (You can read a copy of the briefs submitted by the CAC on the CAC website under "Other Downloads.")
- Deadline to file Substantial Contribution Claims
Pursuant to Section 9.02 of Annex A to the Settlement Facility and Fund Distribution Agreement, the District Court recently entered an Order establishing various deadlines and a process for the submission of claims for "substantial contribution" consistent with Bankruptcy Rule 503(b). These claim applications are due with the District Court no sooner than December 1, 2004 and no later than January 3, 2005 and allow persons who qualify and who believe that they made a "substantial contribution" to the resolution of tort claims in the bankruptcy to seek compensation from the Settlement Fund Trust. All such applications will be reviewed and ultimately ruled upon by the District Court. The Claimants' Advisory Committee and others as set forth in Section 9.02 retain the right to evaluate any such claim on the merits and to take any position with respect to the claim. The CAC is committed to ensuring that payments to claimants take precedence and priority over payment of allowed substantial contribution claims. A copy of the Order is available on the CAC website under "Court Orders."
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
|February 28, 2005
||Deadline for Opt-Out Claimants to postmark their "Notice of Intent to Litigate / Claimant Questionnaire" and return it to the Litigation Facility.
|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 2, 2007
||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
11. DEFICIENCY AND 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
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