Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 2, No. 4, May 12, 2005
This is 12th e-newsletter (Vol. 2, No. 4) 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.
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: email@example.com 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. Please also note that CAC member Dianna Pendleton-Dominguez has moved her practice to Ohio. You can contact her or any CAC member by email at firstname.lastname@example.org or at the Post Office Box address listed above.
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 forward them to the Claims Assistance Program for a response.
1. Improvements Made at the Settlement Facility
The CAC is pleased to report that the claims processing and payment function of the Settlement Facility is improving. While there is still a significant backlog of pending claims to be reviewed, the rate of processing and paying claims has increased over recent months. Below is a summary of claims data through the first quarter of 2005:
Opt-Out and Claims Data Through March 31, 2005
Approximately 145,000 women have filed a Proof of Claim in the bankruptcy proceedings alleging that they have or had a Dow Corning breast implant. Overwhelmingly, 99.5% of all claimants elected to resolve their claim in the Settlement Option. Less than 1% of all claimants (802) "opted out" to pursue litigation.
In June 2004, the claims office began issuing payments to claimants. To date, 23,795 checks have been issued to claimants ranging from $2,000 - $250,000 per claim (see breakdown below). The claims examination process begins with a review for proof of manufacturer. Proof of manufacturer reviews for Dow Corning Breast Implant Claimants (Classes 5, 6.1 and 6.2) through March 31, 2005 show the following:
Once a claimant in Class 5, 6.1 or 6.2 has established acceptable proof of an eligible implant, claims for Explant, Rupture and Expedited Release or Disease are reviewed. The most current results for claims paid for Dow Corning Breast Implant Claimants through March 31, 2005 are provided below.
- 57,693 proof of manufacturer claims submitted
- 50,270 of these claims have been processed
- 41,396 or 82% have been determined to have acceptable proof of an eligible implant
Number of Claims Paid through March 31, 2005
Total $$ Paid in Category through March 31, 2005
The CAC will continue to provide updates to the claims processing data. We have established a separate topic heading on our website called "Claims Data" that will have this information. We are also working to obtain similar claims data for Class 7 and Class 9 and 10 claims.
2. Explant Assistance Program Update
Some of the concerns presented to the CAC over the past year are about the operation of the Explant Assistance Program ("EAP"). This program allows women to have their Dow Corning breast implants removed by providing payment of up to $5,000 (U.S.) (there are different payment amounts for Class 6.1 and 6.2) directly to their explanting doctor. It also requires the doctor to provide the underlying medical records for both Explant and Rupture (if applicable) to the Settlement Facility, thus avoiding the difficulty and expense many claimants have incurred trying to obtain the records themselves.
We received a large number of complaints that claimants and law firms had difficulty obtaining a copy of the Explant Assistance package, had difficulty getting Explant Assistance claims prioritized to determine if a claimant was eligible to participate, and that claimants are unable to find a doctor willing to participate in the program. We have addressed each of these issues with the Settlement Facility staff and can report the following: all persons who requested an Explant Assistance package will be sent one (or a letter explaining why they are not eligible to receive the package, i.e., they are in Class 7 or 9. We have been informed that the Settlement Facility is current on sending out packages to all persons who requested one except for a very small number of requests. They have also devoted an experienced claims reviewer to exclusively handle Explant Assistance claims and issues. If you requested an Explant Assistance package but have not received it, please contact us at: firstname.lastname@example.org.
Second, the CAC and Dow Corning issued several agreed Plan interpretations to the Settlement Facility intended to prioritize requests for Explant Assistance. The parties directed that Explant Assistance claims should be separated and prioritized for processing from other Explant claims. Specifically, those claims should be prioritized for proof of manufacturer review within 30 days of submission. The following is a Q&A provided by the parties to the Settlement Facility:
Q. I want to participate in the Explant Assistance Program. My doctor wants to know how quickly she will be reimbursed once she performs the surgery. What should I tell her?
A. Claims for Explant Assistance are in a separate line for immediate review and payment. This means that if you request Explant Assistance, your Proof of Manufacturer will be prioritized for review within 30 days. Once the doctor provides the Settlement Facility with a copy of the necessary documents of the explant surgery, (s)he can expect to receive payment no later than 60 days.
What does this mean for you? If you request Explant Assistance, you will receive a package of letters and forms from the Settlement Facility. Because you have received the package does not mean that you are eligible or approved for Explant Assistance; you must still submit a Proof of Manufacturer form to document that you have an approved Dow Corning breast implant (silicone or saline). Your product ID review and request for Explant Assistance will be prioritized for immediate processing (within 30 days of submission) and, once the doctor submits the necessary form and records documenting the implant removal, payment to the doctor will be prioritized as well.
If your doctor has questions about the Explant Assistance program - including questions about getting paid for the surgery - (s)he can contact the Claims Assistance Program at 1-866-874-6099 and ask for the Explant Assistance specialist/reviewer. If you have difficulty locating a qualified surgeon to do the surgery, you may consider contacting a breast implant support group for referrals from others who have undergone the surgery. A list of breast implant support groups and their contact information is on the CAC website (www.tortcomm.org).
URGENT REMINDER: The deadline to apply for a Rupture claim is June 1, 2006. This is only one year away! If you do not submit a Rupture claim by that time, your claim for Rupture will denied - even if you document a ruptured silicone gel breast implant.
HELPFUL TIP: If you participate in the Explant Assistance Program but you do not have the removal surgery done by June 1, 2006 solely because your surgeon did not timely return documents or releases, then you are still eligible to seek a Rupture payment if you otherwise qualify.
3. Release Dispute Procedures Approved By The Court
On December 23, 2004, Judge Hood entered an Agreed Order approving procedures to handle disputes raised by claimants about the validity of releases asserted against them by Dow Corning. (A copy of the Order is located on the CAC website under "Court Orders.") The Settlement Facility recently began to implement these procedures by sending a letter to all persons about the release asserted against them by Dow Corning and enclosing a copy of the Court's Order and Release Dispute Procedures. If you wish to contest the release, the letter from the Settlement Facility and the Release Dispute Procedures outlines what you must do. If you have questions, contact Claims Assistance at 1-866-874-6099 or at email@example.com.
Please note that the Release Dispute Procedures do not apply to the following two types of release disputes: (1) Claims alleging that the Plan does not bar recovery under the Settlement Option where an unrepresented Claimant signed a release in exchange for a payment of less than $15,000 during the period 1992 through May 15, 1995 and (2) Claims alleging that the release was provided in connection with the Dow Corning Removal Assistance Program. If your release falls within either or both of these categories, please contact the CAC at: firstname.lastname@example.org. The Claimants' Advisory Committee is currently drafting a motion that will ask the Court to allow claimants who executed a release as described above to be eligible to participate in the Settlement Option. We hope to file this motion by or close to the end of May 2005. Please either email or send to the CAC any examples of releases Dow Corning required you to sign to participate in their Removal Assistance Program (RAP) in 1992-1995 or releases you entered into as an unrepresented claimant from 1992-1995 for under $15,000. Please provide a short fact history of the circumstances surrounding the release along with a copy of any supporting documents.
4. Lien Dispute Procedures Order
In February 2005, the Court entered an Agreed order approving procedures to handle liens asserted against claimants' Settlement Facility award. (A copy of the Order is located on the CAC website under "Court Orders.") The Settlement Facility is expected to implement this program in the near future by mailing a letter and forms to all persons who have asserted a lien against a claimant.
We have been informed that virtually all but a small handful of the liens asserted by the MDL 926 Claims Office have been withdrawn as they were asserted in error.
5. Pending Motions Before the District Court
There are several motions pending before the District Court that were recently heard on oral argument on April 7, 2005. Copies of each of the motions, along with the opposition filed by Dow Corning and the CAC reply briefs (if any) are on the CAC website under "Pending Motions."
6. Order Regarding Attorney Fee Adjustment for Class 6.2 Claims
- Motion for Disclosure of Substantive Criteria Created, Adopted and/or Being Applied by the Settlement Facility - The CAC is seeking to require the Settlement Facility to disclose the criteria it is using and applying in processing claims. We submitted examples to the Court where the Settlement Facility provided different criteria to claimants to qualify for Disability Level A, for example, only when the claimant received a deficiency notice. We also provided an example where the nurse reviewers in Claims Assistance will provide detailed information on how to cure a deficiency to claimants (or their attorney) when they speak with them on the phone - but to date they haven't made this same information publicly available to all claimants. We believe that full disclosure to all claimants is required and that it should be provided to claimants before they submit a claim, not afterwards when a deficiency letter is issued and the cure deadline begins to run.
The motion also questioned whether the Settlement Facility was accurately processing claims consistent with the way claims were processed at the MDL 926 Claims Office. The parties agreed to defer oral argument on this motion until the July 2005 status conference pending the outcome of an outside audit that is being conducted at the Settlement Facility.
- Motion to Toll The Cure Deadline For All Requests For Re-Review Pending More Than 21 Days - The CAC filed a motion asking the Court to order that any claimant whose re-review request has been pending for more than 21 days will have their cure deadline tolled as of the 22nd day following receipt of the request by the SF-DCT. The motion also asks the Court to direct the Settlement Facility to structure their staffing so that re-review requests can be prioritized and reviewed in a timely fashion. If the 21 day turnaround goal set by the facility is too lofty, then we urge that a more realistic goal that does not greatly exceed this time period be determined and adhered to going forward and that claimants whose re-review request are not processed in a timely manner should have their cure deadline tolled until such time as the review is complete and a new Notification of Status letter is issued.
Several other motions seeking to toll the cure deadline for individual claimants' have also been filed and are pending before the Court. We understand that the Settlement Facility has granted extensions to some claimants who have asked for this extension.
HELPFUL TIP: If you have a cure deadline that has expired or is set to expire soon and you intend to file a motion asking to toll or extend your cure deadline, download and use one of the pending motions to toll on the CAC website as a template. The motions are located under the heading "Pending Motions."
- Motion To Amend Annex A to the Settlement Facility Agreement To Adopt An Additonal Proof of Manufacturer Protocol -- The CAC filed a companion motion to that filed by the Houssierre law firm in Texas that seeks to allow claimants to use medical records or other documents that state a claimant was implanted with a silicone breast implant between 1963 - 1970 inclusive and do not contain any other contradictory information about the manufacturer to be deemed acceptable proof of a Dow Corning breast implant.
- Motion of Korean Claimants to Locate a QMD and Either Pay for QMD to Travel to Korea and Conduct Evaluations or Hire QMD in Korea to Conduct Evaluations at the Settlement Facility Expense - This motion was filed by counsel representing numerous Korean claimants and seeks the Settlement Facility to locate and hire a Qualified Medical Doctor to evaluate Korean Claimants. Dow Corning opposed the motion, and it is pending before the Court.
- Motion to Rescind Korean Opt-Out Elections - This motion was filed to rescind approximately 409 opt-out elections filed by Korean claimants.
- Motion to Extend Time for Filing Participation Forms - This motion seeks additional time for certain claimants represented by the law firm who filed the motion to make a decision to settle or opt-out. The motion alleges that the claimants did not receive a response on their appeal concerning their Proof of Manufacturer prior to the opt-out deadline.
On April 8, 2005, the Court entered an Agreed Order adjusting the attorney fee calculation for represented claimants in Class 6.2. Class 6.2 consists of Dow Corning breast implant claimants who reside in one of the Category 3 or 4 countries listed in Annex A, the Claims Resolution Procedures (located at Annex A, page 108), i.e., Korea, Vietnam, Brazil, Mexico, Egypt, Thailand, South Africa, etc. The Order makes the attorney fee calculation for Class 6.2 consistent with that for other classes. The attorney fees for Class 6.2 claimants are as follows: 10% of the first $3,500 (U.S.); 22.5% of the next $14,000 (U.S.) and 30% of any amount over $17,500 (U.S.). A copy of the Order can be viewed or downloaded on the CAC website under "Court Orders."
7. Agreed Order Entered on Spitzfaden Claims Processing Issue
The CAC, Dow Corning and representatives for Spitzfaden Claimants recently resolved the issue that was raised in a motion filed by representatives of the Spitzfaden claimants. The Agreed Order provides that claimants who are members of the Spitzfaden class shall have at least 40 claim forms in each category (Proof of Manufacturer, Explant, Rupture, Expedited Release and Disease) reviewed each month. The parties also agreed to continue to monitor the processing of these claims to ensure compliance.
8. Agreed Order Entered Regarding Changing Disease Elections
On March 4, 2005, the Court entered an Agreed Order allowing claimants to change their disease election in certain circumstances. (A copy of the Order is located on the CAC website under "Court Orders.") An agreed Q&A provided by the parties and included in the Order states:
Question: If a Claimant has deficiencies in her Disease Claim and receives a Notification of Status letter, can she apply for a second Disease Claim while her time to cure the deficiencies in the first claim is running?
Answer: Yes. She may apply for a second Disease Claim while her time to cure the deficiencies in the first Disease Claim is running. The Claimant has the option of changing her election back to the first Disease Claim but only up to the deadline to cure deficiencies for that first Disease Claim (which is one year from the date of the Notification of Status letter advising the Claimant of deficiencies in that first Disease Claim). Once the cure deadline has expired, the Claimant may not change her election back to that first disease and the Claimant is barred for payment for that first disease.
The Settlement Facility has also received requests from claimants who wish to change their Disease claim election prior to receiving the Notice of Status letter. A claimant may change the Disease claim election provided that the Claims Administrator monitors this process. The Claims Administrator may in the future discuss with the Claimants' Advisory Committee and the Debtor's Representatives a limit on the number of times the Claimant may change, withdraw or review a Disease claim.
9. Substantial Contribution Claims
The deadline to comment or object to substantial contribution claims has been extended to June 20, 2005 by agreement of the parties.
10. Outstanding Issues
While a large number of issues have been tackled and dealt with by the parties, there remains, unfortunately, many issues open for continuing discussion and resolution - either by the parties or through decisions of the Court on pending motions. Some of the pending issues include:
11. MDL 926 Court Schedules Conference in New Orleans for June 3, 2005
- Are persons with Dow Corning Tissue Expanders implanted in the breast eligible to participate in the Plan as breast implant claimants? This motion has been briefed and is pending with the Court. Copies of the motion and response are on the CAC website.
- Whether the symptoms to support a Disease Option 2 claim be documented within a single 24 month period is tolled during the pendency of the Dow Corning bankruptcy? This motion has been briefed and is pending with the Court. Copies of the motion and response are on the CAC website.
- Are claimants who are "unmatched NOI claimants" eligible to participate in the Plan? This issue relates to the NOI SURVEY that was done in the fall of 2004 and again in early 2005. The parties are working to obtain the data from these surveys to try and resolve the dispute about whether these claims are eligible to participate in the Settlement Plan. Unfortunately, until the issue is resolved, all claims in this category have been placed on hold and are not being processed. We recognize that this is a time sensitive issue because of the impending deadline for Rupture claims and Class 7 claims of June 1, 2006. We hope to report more on this issue soon.
- What can I do if I receive a letter from the Settlement Facility that the doctor who performed my evaluation has been deemed "unreliable"? What does this mean? Is there a way to find out why this doctor was deemed "unreliable" and/or to get the doctor removed from the list? The Settlement Facility sent out hundreds of letters earlier this year to claimants stating that the doctor they used for evaluation of their claim (typically for Proof of Manufacturer or Disease) has been deemed "unreliable" and therefore, the evaluation cannot be used. The letter also informed claimants that they would have to be re-evaluated at their own expense. This has, understandably, created a lot of confusion and frustration. The CAC has not been provided with any information about the identities of these doctors from the Settlement Facility or specific reasons why any particular doctor was placed on the "watch list." We understand that most of the doctors on the list were placed there by the MDL 926 Claims Office and that this may be a topic for the June 3, 2005 MDL conference in New Orleans (see below). It would be very helpful if you would share with us the names of the doctor you were told was "unreliable" and any information you have about this topic. We will investigate further and work with you to determine what can be done. Please send us any information you have about this to our email address (email@example.com) or to our Post Office Box address listed at the beginning of this newsletter.
We have been informed that the MDL 926 Court has set June 3, 2005 for a conference in New Orleans. We do not know what the agenda for this conference is, but representatives of the CAC will attend. We hope to raise the issue set forth in our July 30, 2004 letter to the MDL Judge and Judge for the Dow Corning bankruptcy regarding the 50% reduction applied to certain claims in the Revised Settlement Program. In some cases, the Revised Settlement Program applied a 50% reduction in compensation because the product ID proof referred to Cronin after 1971, "silastic" after 1969 (small letter "s"), or had some other reference that was suggestive of a Dow Corning breast implant. When claimants tried to collect the 50% of their disease award from the Settlement Facility, these types of product ID were rejected as unacceptable. (A copy of the CAC's July 30, 2004 letter is on the CAC website.)
12. Common Questions From Claimants
The CAC website has received a number of questions from you asking questions common to all claimants. Here are a few of the most frequently asked questions we received:
13. Other Developments
- How can we get a password to access our claim information from the Settlement Facility?
Answer: Contact the Claims Assistance Program at 1-866-874-6099 or by email at firstname.lastname@example.org and they can provide you with information on how to obtain a password.
- How can we locate a rheumatologist to do a disease evaluation?
Answer: The CAC does not have a list of rheumatologists who are Qualified Medical Doctors. Please note that you do NOT need a Board-certified Rheumatologist to qualify for a Disease payment under most Disease Option 1 claims. In most instances, your treating physician can document your symptoms in his or her medical records and you can then request a copy of those records to submit in support of your claim. As long as the medical records document the number of symptoms you need to qualify, this likely will be sufficient for the disease portion of the claim. Please note that your treating physician will also need to provide detailed information to support a disability rating. Please read the criteria in Annex A carefully to ensure that you have documented everything you should prior to the time you submit your claim.
- Can an attorney aggregate the award from the RSP with that from the Settlement Facility to calculate attorney fees?
Answer: This answer is already located in the Class 5 Claimant Information Guide at Q11-7. It provides that you can aggregate the two awards to calculate attorney fees.
- Can an attorney aggregate the settlement amount from an RSP opt-out claim with that from the Settlement Facility to calculate attorney fees?
Answer: This question is pending before the District Court as part of several Q&A's on attorney fees and expenses. We will post a notice on the CAC website when the answer is finalized.
Breast implants have been in the news frequently of late because of the FDA hearings on whether to allow Inamed and Mentor to market silicone gel breast implants. For more information on this issue and medical issues related to silicone implants, you can visit various websites including Toxic Discovery (www.toxicdiscovery.com) and Command Trust Network (www.commandtrust.org) among others. Additional breast implant support group websites can be found on the CAC's website page under the topic heading "Other Downloads."
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 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
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