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

CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 3, No. 2, February 24, 2006



This is the 22nd e-newsletter (Vol. 3, No. 2) 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.

NOTE: The CAC is happy to answer questions you may have, but we urge you to first contact the Claims Assistance Program at their toll free number (866-874-6099) or by email at: info@sfdct.com. We apologize for any delay on our part in returning phone calls and answering inquiries. The call and correspondence volume remains high, and we are working to respond to each inquiry.

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 you can call them at 866-874-6099.



1. REMINDER: CURE DEADLINES THAT HAVE ALREADY RUN OR WILL RUN BEFORE APRIL 16, 2006 HAVE BEEN RESET TO APRIL 17, 2006

This is a reminder that all cure deadlines that have already run or that will run on or before April 16, 2006 have been reset to April 17, 2006. The Claimants’ Advisory Committee ("CAC") is working to secure a further extension of cure deadlines, but we do not have a firm date to report at this time. As soon as one is agreed to by the parties and approved by the Court, we will include it in our e-newsletter and on our website. In the meantime, we urge you to do everything you can to cure any deficiencies in your claim submission by your cure deadline.

The parties are meeting with the Claims Administrator in early March to review the draft guidelines that we hope will provide greater information on what the Settlement Facility will accept in claim submissions. The greatest focus is on disease claims – and in particular SLE (lupus) claims -- but we anticipate that there will be additional information provided on rupture and explant claims as well. We are working with the Claims Administrator to make the guidelines available to everyone by early April 2006. At that time, the CAC will also make available a booklet with tips and sample documents for filing a disease claim.

There are several internal re-review of SLE claims that are taking place. The Settlement Facility is reconsidering what constitutes and "affirmative diagnosis" of SLE and whether SLE symptoms and/or diagnoses can be accepted based on information contained in a death certificate. If you believe your SLE claim was wrongly denied or may be affected by one of these two issues, you should send a request to the SF-DCT and ask that the claim be reconsidered.


2. ORAL ARGUMENT DATE SET FOR MOTIONS ON "DISABILITY A" CLAIMS FOR TOTAL DISABILITY BASED ON VOCATION "OR" SELF-CARE

The Court has set oral argument on the "disability A" issue for April 6, 2006 in Detroit. This issue is whether the disability standard for "A" level claims requires total disability in both vocation and self-care as the SF-DCT currently requires, or whether the language should be applied as written – total disability in either vocation or self-care. Several additional motions by individual claimants have been filed on this issue (copies of which will be available on the CAC website during the week of March 6th), as well as pleadings by the CAC that reiterate our support for the interpretation of "vocation or self-care."

3. RUPTURE DEFICIENCES

The CAC has received approximately 300 responses from claimants whose rupture claim was found deficient by the SF-DCT. Based on our review of these claims and our discussions with many of you, we have found four common reasons why rupture claims have been denied:

  1. the rupture is described as a "leak" of silicone or the word "leakage" is used;
  2. the Operative Report has language describing rupture and also uses the word "bleed", therefore, the SF-DCT has denied the claim stating that it is for "gel bleed" which is not compensable;
  3. there is information in the Operative and Pathology Reports that may seem inconsistent and so the claim is denied (i.e., the Operative Report states the implant was ruptured, but the Pathology Report notes on "gross examination" that the implant appears intact); or
  4. the Operative and/or Pathology reports do not describe the rupture but there is either pre-operative or post-operative non-contemporaneous documentation that supports the rupture claim. These claims have been denied because the SF-DCT states that it cannot consider anything other than the Operative and Pathology Reports.
  1. "LEAKAGE" OF SILICONE GEL

  2. With regard to the first issue of "leakage," we believe that this problem has been addressed and resolved, and the SF-DCT should now accept the term "leakage" as proof of a rupture. If your rupture claim was previously denied on this basis, we urge you to contact the Settlement Facility and request a re-review of the rupture claim. In part, leakage was accepted because of various definitions of the word found in dictionaries, all of which note that to have leakage, there must be a hole or other opening from which the fluid leaks out. Some sample definitions of leak and leakage include:

    SOURCE: Dictionary.LaborLawTalk.com:

    Leak: (lek), n. 1. A crack, crevice, fissure, or hole which admits water or other fluid, or lets it escape; as, a leak in a roof; a leak in a boat; a leak in a gas pipe. "One leak will sink a ship." Bunyan.

    Leak: n. 1. an accidental hole that allows something (fluid or light etc.) to enter or escape; "one of the tires developed a leak"

    SOURCE: WorldNet 1.7:

    Leak: n.

    1. an accidental hole that allows something (fluid or light etc.) to enter or escape; "one of the tires developed a leak"
    2. the unwanted discharge of a fluid from some container; "they tried to stop the escape of gas from the damaged pipe";
    3. enter or escape as through a hole or crack or fissure; "Water leaked out of the can into the backpack"
    4. have an opening that allows light or substances to enter or go out; "The container leaks"

    SOURCE: MSN Encarta Dictionary:

    Leak: [leek] noun (plural leaks)

    Definitions:

    1. hole or crack: an unintentional hole or crack that permits something such as liquid, gas, or light to escape or enter
    2. accidental escape or entry: the accidental escape or unwanted entry of something, usually by way of an unintentional hole or crack
    3. escaping liquid or gas: something such as liquid or gas that escapes through an unintentional hole or crack

    There are many other dictionary sources that all describe "leak" or "leakage" the same way, that is, as the escape of fluid through a hole, crack or other opening. The Plan’s definition of rupture is similar: a hole or other opening in the elastomer envelope. As a result, the word leakage should now considered acceptable.

  3. "GEL BLEED"

  4. The second common reason why rupture claims have been found deficient is because the implant failure was interpreted by the SF-DCT as "gel bleed." The CAC has done extensive research on the documents produced in the MDL 926 litigation and has provided the Claims Administrator with some of these documents that discuss and/or define "gel bleed." The documents – including those authored by Dow Corning -- consistently describe gel bleed as microscopic droplets of silicone oil the leach through the silicone elastomer shell creating an oily feeling to the implant. Gel bleed is not actually silicone gel, which is described in Operative Reports as sticky or tacky. It is silicone oil. The term "gel bleed" is a misnomer, but manufacturers had a common understanding of this term that it was silicone oil, not gel.

    If silicone gel is outside the envelope, this should be definitive proof that the implant has ruptured even though the doctor and/or pathologist may not be able to visually see the opening in the elastomer envelope that caused the gel to escape. Many internal manufacturer documents discuss how implant shells have numerous pinhole defects, crease folds that create a "wear spot" or opening on the envelope, and other ways that implant shells fail which are not always able to be seen on gross inspection.

    This issue is still unresolved, but we hope to report more on the status of this in the next newsletter. Copies of the gel bleed documents that the CAC pulled together will be available on the CAC website beginning the week of March 6th.

  5. OPERATIVE REPORT VS. PATHOLOGY REPORT STATEMENTS

  6. The third reason rupture claims appear to have been denied is because of seemingly different terminology used in the Operative and Pathology Reports. For example, the Operative Report states that the implant is ruptured, but the Pathology Report states that on "Gross Examination" the implant appears intact. The Claims Administrator has stated in the past that the Pathology Report does not "trump" the Operative Report finding of rupture, but we continue to receive a number of reports that these rupture claims are being denied. We will continue to explore this issue with the Claims Administrator to better understand whether claims should have been denied. Keep in mind that two different doctors author the Operative and Pathology Reports, and the role of pathologists is not to determine if a rupture occurred. Pathologists are concerned with examining tissue samples, not implants, for signs of disease.

  7. PRE-OPERATIVE AND POST-OPERATIVE DOCUMETNATION OF RUPTURE

  8. Last, rupture claims have been denied because the Operative and/or Pathology Reports are either silent about whether there was a rupture or suggest that there was no rupture, but the pre-operative documents including the doctor's medical records, mammogram reports, and/or MRI reports state that the implants are ruptured, or the doctor has written letters subsequent to the explant surgery stating that there was a rupture and/or explaining what (s)he meant by the language in the Operative Report. These claims have been denied because there is a perception at the SF-DCT that the only documents they are permitted to look at are the Operative and Pathology Reports. We are continuing to work on this issue. We believe that all documents should be considered in context to determine if a rupture occurred, regardless of which document specifies this.

  9. SUMMARY

  10. While the CAC continues to work on the above issues, this should not stop you from proceeding with trying to cure the deficiency noted by the SF-DCT. If that is unsuccessful, you should use your rights under the Plan to challenge the decision on appeal to the Claims Administrator and then, if that claim is still denied, you can appeal to the Appeals Judge.

4. CLAIMS ADMINISTRATOR MAKES AVAILABLE A "DEAR DOCTOR" LETTER TO PROVIDE TO DOCTORS

To help doctors better understand what the Settlement Option is and to assist claimants with obtaining Proof of Manufacturer and underlying records and/or letters to document claims, the Claims Administrator has made available a "Dear Doctor" letter authored by him. The letter, which is available to download on the SF-DCT and CAC websites, explains what the Settlement Option is (and is not) and asks doctors to cooperate and assist claimants. We hope that this letter can be used by both represented and unrepresented claimants to urge greater cooperation from the medical community, particularly in treating women with silicone breast implants.

A copy of the "Dear Doctor" letter is reprinted below. You can also download a copy on the websites noted above (note that the document will be available on the CAC website beginning March 6, 2006) or you can contact the SF-DCT at 1-866-874-6099 and request a copy.


Dear Doctor:

The Settlement Facility–Dow Corning Trust (SF-DCT) is a settlement office that was established as part of the bankruptcy reorganization of Dow Corning Corporation. Eligible claimants may file a claim for explant, rupture, and disease. The disease claim does not require a showing of causation that the implants caused the medical condition or disease. In exchange, claimants are forever barred from filing a lawsuit against Dow Corning or any of the released parties, which include settling physicians and settling healthcare providers, for injuries arising out of their implants.

I am writing as the Claims Administrator, overseeing the processing and payment of claims, to request your cooperation with the SF-DCT and its claimants. The rules for submitting claims require claimants to provide medical records, and in some instances, statements from their doctors, other medical professionals, and hospitals. The most important proof is the records that confirm whether Dow Corning made the implant. In addition, to be eligible for payment, claimants must provide other types of medical records, including operative and pathology records, diagnosis records, and treatment reports. We do not require that these records be notarized, or that physicians give statements or diagnoses under oath, or conform to any legal standard such as "to a reasonable degree of medical certainty." We will not ask you to appear in any court or administrative proceedings to defend or explain your medical records and diagnosis. All records, reports, and communications you provide will be confidential pursuant to court order.

As noted above, a claimant does not need to prove the implant caused the disease, symptom, or medical condition. We do require, though, an "affirmative diagnosis" of the disease or condition. This is simply a signed statement from the physician (in many cases a board certified rheumatologist), which confirms the claimant suffers from the disease or condition in question. A claimant must also submit a medical report that describes, for some diseases, the claimant’s disability, and for other diseases, describes the severity. Some of the diseases in the SF-DCT processing rules were established for the purposes of the bankruptcy settlement, and do not appear in medical textbooks. Examples include Atypical Connective Tissue Disease (ACTD) and General Connective Tissue Syndrome (GCTS). SF-DCT claimants have been given a booklet that defines the symptoms for diseases listed in the settlement, and I encourage you to review the booklet when submitting a diagnosis and/or disability statement for a claimant.

I urge you to work with your patients to provide them and us with the requested records and reports. Thank you for this cooperation and for your time and patience.

Very truly yours,

David Austern
Claims Administrator


5. SETTLEMENT CHECKS GOING UNCASHED

The Claims Administrator reports that a large number of checks totaling approximately $20 million have not being cashed by the expiration date, which is 6 months after the check is issued. This is causing significant problems. When checks become stale after 6 months, they cannot be cashed and a new check must be re-issued. This costs money to the Fund, which the Settlement Facility may in turn charge back to the law firm. We are aware of some of the reasons why checks may not have been cashed within 6 months: claimants have moved and the checks are being returned as non-deliverable, claimants have passed away and the check cannot be cashed until an estate is opened under state probate law, attorneys cannot locate their clients who have moved, attorneys are experiencing problems settling insurance subrogation claims for their clients, and there are attorney fee/expense disputes. We urge all claimants holding checks to cash them within the 6 month deadline and, if there is a reason why it cannot be cashed, please contact the SF-DCT about this. The Claims Administrator and parties are studying this problem to best decide how to proceed.

6. PERMANENT INJUNCTION ENTERED

The Plan provides that claimants cannot institute litigation against Dow Corning outside the context of the Settlement and Litigation Options. Recently, the Court entered a Temporary Restraining Order, followed by a permanent injunction, against a claimant who attempted to institute an action in state court in California. Pleadings and the Orders related to this matter will be available on the CAC website during the week of March 6th. Claimants who opted out of the Settlement Option can address issues through the various Case Management Orders entered for claimants with claims against the Litigation Facility.

7. TEMPORARY CLAIMS PROCESSING SLOW-DOWN

The Settlement Facility is in the midst of a temporary slow-down on processing of claims while it works to install an upgrade to its computer system. The slow-down is expected to take 2 months to complete, and the upgrade will improve the speed, accuracy and efficiency of claim review.

An update from the Claims Administrator was posted on the Settlement Facility website on February 10, 2006:


Administrator's Corner
Last Updated: 02/10/2006 @ 1:11 PM

This is a first quarter 2006 update on certain changes happening at the SF-DCT. These changes affect both our staff and our claimants, with the goal to provide quicker claims processing and the award of payments. I will keep you posted on our progress as the changes are implemented.

In addition to the daily review of existing and new claims, we are installing an updated computer system. Once online, this new system will provide our staff with the tools needed to expedite their responses to claims, as well as to provide a more efficient processing avenue for a claim's review cycle. This computer upgrade should not affect any of our current processes, but it will result in a slow down of the claims review process.

Here is an estimated timeline for claims filed on or before December 31, 2005:

• Proof of Manufacturer review Spring 2006 • Explant and Rupture claims Late Spring 2006 • Disease claims for Class 5 and Class 6 (depending on file date) 10-12 Months

Timelines can be found on our website: www.dcsettlement.com/news_story.cfm?news_id+114

If you have requested your password, in writing, from Claims Assistance, you can view the status of your individual claim on our website, http://myclaim.sfdct.com by following the steps outlined below:

• After you have clicked I Agree on the Home page, select your language, e.g., English • Click on the menu heading, My Claim, located on the right side of the Claimant Information Guide and Claim Forms Instruction page • Follow the instructions on the My Claim page. If a password is needed to continue, please call the Claims Assistance Program, 1-866-6099 (toll free), or contact us through email at http://www.dcsettlement.com/email_submission.cfm. Our staff will be happy to assist you.

Important news from the Court regarding cure deadlines:

• If your unexpired cure deadline had an expiration date earlier than April 16, 2006, the Court has reset the deadline to April 17, 2006

As Claims Administrator, I want to assure all claimants that the SF-DCT staff is diligently working to complete the processing of your claim. Our staff's attention to detail benefits our claimants' chances to receive payment for their claim. Thank you for your continued patience throughout our computer transition.

David Austern, Claims Administrator



  1. EXPLANT ASSISTANCE CLAIMS NOT AFFECTED BY SLOW-DOWN
  2. Claims and payment for explant assistance should not be affected by the slow-down. We have heard from hundreds of claimants that they have experienced difficulty finding a surgeon to do the explant surgery unless the surgeon is paid in advance. The CAC and Settlement Facility are working to address this. If you need assistance locating a doctor or making arrangements for explant assistance, please contact the Claims Assistance Program ("CAP") at 866-874-6099. They are now handling these requests. The CAC would greatly appreciate it if claimants and law firms would let us know the names of surgeons who have removed implants and are willing to be paid through the Explant Assistance Program so that this information can be shared with others.

    In the past month, processing and payment of Explant Assistance claims has increased by approximately 30%. Claimants who apply for Explant Assistance but who cannot have their surgery by the Rupture Deadline of June 1, 2006 can still be eligible for Explant and Rupture claims in a limited circumstance: Section 6.02(c)(v) provides: "Claimants will not be denied an Explantation Payment if they participated in this direct payment procedure but were not explanted by the deadline for the Explantation Payment Option solely because the surgeon failed timely to return documents and/or releases. Claimants will not be denied a Rupture Payment if they participated in this direct payment procedure but were not explanted by the deadline for the Rupture Option solely because the surgeon failed to timely return documents and/or releases."

  3. CLAIMS FOR RE-REVIEW NOT AFFECTED BY SLOW-DOWN
  4. Claims for re-review to cure deficiencies will also not be affected by the slow-down. Requests for Re-review of Additional Information (or RAI’s) are given priority at the Settlement Facility and ideally should be completed within 30-45 days. Because of the cure deadlines, the RAI Department has experienced a large volume of submissions and the wait time may be as long as 60 days. Please be patient as they work to complete the re-review task.

  5. MY CLAIM SYSTEM AT SF-DCT
  6. As a reminder to those persons who have not obtained a password for the Settlement Facility’s "My Claim" section, you should contact the Settlement Facility (not the CAC) for a password. You can send them an email at info@sfdct.com or call them at 1-866-874-6099.

  7. NEW PHONE SYSTEM INSTALLED FOR CLAIMS ASSISTANCE PROGRAM
  8. One of the upgrades the Settlement Facility has already completed is the new toll-free phone system. Many claimants and attorneys reported problems reaching the Settlement Facility in the past, including long delays on hold. A new phone system has been installed that provides callers with an estimated wait time and with information about claims criteria and processing while they are on hold. It also allows claimants to leave a message for a call-back instead of waiting on line to speak with a CAP representative.

8. ESTIMATED PROCESSING TIMES

There remains significant backlog in processing disease claims. The SF-DCT is currently reviewing Disease Option 1 claims that were submitted in September 2004 and Disease Option 2 claims that were submitted in December 2004. In addition, we are aware of several significant processing issues on these claims that we have brought to the attention of the Claims Administrator. We continue to work through these issues and hope to better understand the reasons for some deficiencies that have been reported to us.

The SF-DCT is currently reviewing claims for Explant submitted in August 2005 and claims for Rupture submitted in November 2005. It is our understanding that the SF-DCT is current for review of Proof of Manufacturer for Classes 5, 6.1 and 6.2.

9. CLASS 7 "MARSHALING FORM" AVAILABLE

Claimants who have a Bristol, Baxter or 3M implant who want to waive their right to any further compensation from the Revised Settlement Program ("RSP") to apply for benefits in Class 7, the Silicone Gel Claim Fund, can do this by completing the "Class 7 Marshaling Form." This is a new form that has only recently been adopted by the Settlement Facility. You can download a copy from the SF-DCT or CAC websites (note the form will be available on the CAC website beginning March 6th). Please note that by including 3M implants in the above statement does not mean that 3M implants by themselves are eligible for compensation in Class 7. The reference to 3M implants is included only for those claimants who have one eligible Class 7 implant plus a 3M implant (and therefore they are required to marshal).

10. CLASS 9, 10.1 and 10.2 "COVERED" OTHER PRODUCTS FUND REPORT

The "Covered" Other Products Fund is a total of $36 million ($30 million in Base Payments and $6 million in Premium Payments) for claimants who have an eligible Dow Corning implant and who provide documentation of one of the available Medical Conditions. Eligible implants in this class include TMJ, hip, knee, chin, facial, testicular, small joint orthopedic (toes, fingers), and penile. (A complete list of eligible implants is on the CAC website and in your Claimant Information Guide.) Early estimates for total payments to approved claims in this class show that there will be a significant amount of money remaining. The Claims Resolution Procedures provides that if there is money remaining, then the Claimants Advisory Committee and Claims Administrator will work together to redistribute the money to the most seriously injured claimants. Even if you do not believe you qualify for benefits in the Other Products Fund, you may consider filing a claim and documenting your injuries in the event that the re-distribution plan may offer you compensation. The deadline to file a claim is June 1, 2006.

11. SETTLEMENT FACILITY AND CAC TO REVIEW UNREDACTED DOW CORNING RECORDS FOR DOCUMENTS HELPFUL TO ESTABLISH CLAIMS

As reported in the last e-newsletter, the CAC reached an agreement with Dow Corning to allow us and the Settlement Facility to review and obtain copies of documents in Dow Corning’s possession which may help establish claims for Proof of Manufacturer and other benefits. The review project will take place during the week of February 27th. A preliminary review of some of the documents strongly suggested that this project could help claimants in the following ways:

  • Claimants who participated in the Removal Assistance Program ("RAP") that Dow Corning operated between 1992 and 1995 are, according to the Settlement Plan, presumed to have acceptable Proof of Manufacturer and Explant claims. Dow Corning provided a list of approximately 8,000 names of RAP claimants to the Settlement Facility, but they have been able to locate and match only about 50% of these names to names in their database. The review will focus on any information about RAP claimants (such as address, date of birth, etc.) that will help the SF-DCT match them to a name on the Proof of Claim form.
  • Some claimants who were explanted through RAP have reported that their explant/rupture records have been destroyed by their surgeon's offices. A requirement of RAP was that surgeons provide Dow Corning with the Operative Report of the explant surgery. We hope to locate these records so that claimants can submit claims for Rupture if applicable.
  • In some cases, the Dow Corning documents contain information that would either establish acceptable Proof of Manufacturer or may assist the claimant in locating useful information.

The CAC is still working with the Claims Administrator to determine how to inform claimants that their records have been located. Until this process is worked out, we ask that you refrain from calling either the CAC or the Settlement Facility to ask if your records have been found. We will report more on this in the next e-newsletter.

12. LIENS FILED BY MDL 926 CLAIMS OFFICE AGAINST CLAIMANTS IN THE SETTLEMENT FACILITY

The CAC will meet with the MDL 926 Claims Administrator in early March to discuss the situation with liens filed by the MDL 926 Claims Office against settling claimants in the Dow Corning settlement. We will report on the outcome of this meeting in our next newsletter. If you want to send the CAC information on the MDL lien that was filed against you or your client, you can send it to us at:


Email: info@tortcomm.org
Fax: 419-394-1748
Mail: P.O. Box 665, St. Marys, OH 45885

13. MEETING WITH MDL 926 AND SETTLEMENT FACILITY PARTIES TO DISCUSS COMMON ISSUES

The Judges and representatives of MDL 926 and the Dow Corning case (including the CAC) met on January 24, 2006 to discuss common issues including the MDL lien situation noted above and conflicting product identification standards. The product identification issues are: a) claimants who were denied by the MDL Claims Office on the basis that the implant was made by Dow Corning, but the Dow Corning office also declined the proof stating that it either was not acceptable under the criteria in the Plan or because they believe the implant was made by Bristol, Baxter or 3M (the companies participating in the Revised Settlement Program in MDL 926); and b) claimants in the MDL received a 50% reduction in their compensation because they had at least one implant made by Dow Corning, but their proof in the Dow Corning case is unacceptable. At this time, claimants in one of these two situations either cannot be paid at all or cannot recover the remainder of their compensation from any settlement. The two claims offices are working to identify the number of claimants affected and then will provide this information to the parties and Courts. We hope that a resolution can then be found.

The Judges and representatives of MDL 926 and the Dow Corning case (including the CAC) met on January 24, 2006 to discuss common issues including the MDL lien situation noted above and conflicting product identification standards. The product identification issues are: a) claimants who were denied by the MDL Claims Office on the basis that the implant was made by Dow Corning, but the Dow Corning office also declined the proof stating that it either was not acceptable under the criteria in the Plan or because they believe the implant was made by Bristol, Baxter or 3M (the companies participating in the Revised Settlement Program in MDL 926); and b) claimants in the MDL received a 50% reduction in their compensation because they had at least one implant made by Dow Corning, but their proof in the Dow Corning case is unacceptable. At this time, claimants in one of these two situations either cannot be paid at all or cannot recover the remainder of their compensation from any settlement. The two claims offices are working to identify the number of claimants affected and then will provide this information to the parties and Courts. We hope that a resolution can then be found.

14. COURT APPROVES PROCEDURES TO ADDRESS REQUESTS TO BE ELIGIBLE FOR THE SETTLEMENT FACILITY BY LATE CLAIMANTS

On January 19, 2006, the Court entered an Order approving a process to hear and rule on late claim requests. Late claims are those who did not file either a Proof of Claim or Notice of Intent form on or before August 30, 2004. The process requires Dow Corning and the CAC to review the late claim requests and identify the ones the parties agree should be allowed to be eligible as timely. The late claim requests that the parties cannot agree to will be submitted to the Court on or before March 10, 2006 and the Court will then establish a schedule to hear from late claimants by telephone (or in person if the late claimant or any party so desires).

Late claims are not the same as Notice of Intent claims that remain on hold pending the outcome of the Notice of Intent survey process.

15. CLAIMS PAYMENT UPDATE

From June 1, 2004 (the Effective Date) through December 31, 2005, the Settlement Facility has paid out a total of $533,235,497 million dollars has been paid to claimants in Classes 5, 6.1 and 6.2 (Dow Corning Breast Implant claimants). The largest group of payments has been to Class 5 (U.S.). The Plan of Reorganization provides that Dow Corning is obligated to pay up to $2.35 billion Net Present Value over 15 years. Pursuant to Court Order, Base Payments are authorized to be paid for approved claims; however, Premium Payments are not authorized at this time.

Listed below are additional data concerning the processing of Class 5 (U.S. Dow Corning Breast Implant claims) through December 31, 2005:

  • 89% approval rate for Proof of Manufacturer
  • 70% approval rate for Rupture claims
  • 11% approval rate for Medically Contraindicated Rupture claims
  • 98% approval rate for Explant claims

Claims for Explant, Rupture and Disease are reviewed only when you first submit and establish that you have a Dow Corning breast implant. To do this, submit the Proof of Manufacturer Form (the one with the blue edge) along with supporting documents.


CLASS 5, 6.1 AND 6.2 ONLY (DOW CORNING BREAST IMPLANT CLAIMS)
Claim Category Number of Claims Paid through Dec. 31, 2005 Total $$ Paid in category through Dec. 31, 2005
Expedited Release 10,423 $ 19,903,975.76
Explant 19,618 $ 96,164,488.89
Explant Assistance 136 $ 653,409.79
Increased Explant 11 $ 33,000.00
Rupture 13,646 $ 269,072,147.23
Disease Option 1 8,751 $123,818,511.60
Disease Option 2 220 $ 22,589,963.80
Total 52,805 $533,235,497.20

CLASS 7 (SILICONE GEL MATERIAL CLAIMANTS)
Claim Category Number of Forms Filed Number of POM Claims Reviewed Number of POM Claims Approved Number of Claims Requesting Expedited Release Number of Claims Requesting Disease
Proof of Manufacturer 33,451 5,951 3,128 17,649 15,802

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 Requesting Expedited Release Number of Claims Requesting Disease
Proof of Manufacturer 3,839 2,791 1,202 N/A N/A
Expedited Release 1,920 1,284 611 1,284 611
Rupture 258 46 36 7
Inflammatory Foreign Body Resp. 782 215 160 61
Implant Failure 1,150 336 261 15
TMJ Enhanced 609 131 68 0

The largest group of deficiencies in the Other Products Fund is that claimants are not submitting acceptable proof that they have a covered Other Product made by Dow Corning.

16. STATUS OF UNMATCHED NOI CLAIMS

We anticipate receiving a report from the Claims Administrator on the survey results for unmatched Notice of Intent Claimants ("NOI claimants") sometime in March 2006. The results should largely determine whether unmatched NOI claimants can receive payment for Explant and Rupture. The Order dated June 10, 2004 provides that Dow Corning has agreed to waive its right to object to these claims if the projected aggregate value of Class 5, 6.1 and 6.2 claims for Rupture and Explant exceeds $25 million.

17. MOTION CHALLENGING RELEASES OBTAINED BY DOW CORNING FOR REMOVAL ASSISTANCE FROM 1992 - 1995

Dow Corning filed a Motion for Summary Judgment against three claimants who opted out of the Settlement Option to pursue litigation, stating that the release document each claimant signed from 1992 – 1995 barred their right to future recovery from Dow Corning. A Joint Response was file on behalf of the three opt-out claimants, and a hearing is scheduled for March 2, 2006 in Detroit. The CAC will attend this hearing and report on what happens. Copies of the pleadings will be available on the CAC website beginning the week of March 6th. If you are a settling claimant or represent a settling claimant who signed a release during this time frame, please contact the CAC if you have not already done so.

18. 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. For example, if you do not file a Rupture claim by June 1, 2006 but discover in 2008 that you have a rupture, your rupture claim will not be allowed. It will be denied.

Deadline Date Type of Deadline
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, 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

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:

Settlement Benefit 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
Explant 6 months from date of Notification of Status letter
Rupture 6 months from date of Notification of Status letter
Medical Condition (Classes 9, 10.1 and 10.2) 6 months from date of Notification of Status letter
Disease 1 year from date of Notification of Status letter


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

This is a NEW P.O. Box address for the CAC so please update your records.

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 info@sfdct.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 have to forward them to the Claims Assistance Program for a response which delays the response.

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.



© 2016 Claimants' Advisory Committee. All Rights Reserved.