Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 3, No. 7, July 7, 2006
This is the 27th e-newsletter (Vol. 3, No. 7) 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.
Requests for copies of claim forms or inquiries about the status of a claim should be directed to the Settlement Facility at email@example.com or you can call them at 866-874-6099.
1. CURE DEADLINE OF JULY 17, 2006 IS EXTENDED TO JANUARY 17, 2007
On June 21, 2006, the Court entered an Agreed Order further extending all cure deadlines that have already run or that will run prior to January 16, 2007 to January 17, 2007. A copy of the Order is on the CAC’s website (www.tortcomm.org) under “Court Orders.”
The Claims Administrator and the parties are continuing to work towards the release of information that should further assist claimants in understanding the disease and disability criteria.
2. CAC FILES MOTION FOR EXTENSION OF THE JUNE 1, 2006 DEADLINE FOR CERTAIN GROUPS OF CLAIMANTS
On May 31, 2006, the CAC filed a Motion asking the Court to extend the June 1, 2006 deadline for Rupture and Class 7 (Gel) and 9/10 (Other Products) claims for the following categories of claims:
- “Conditional Notice of Intent Claimants” – claimants who timely filed a Notice of Intent form but whose claims for Explant and Rupture are the subject of a pending motion and objection filed by Dow Corning in 2004. This group of claimants also now includes those persons who filed a Notice of Intent or other correspondence prior to November 30, 1999, but who did not return a Proof of Claim form by the 2004 deadline pursuant to paragraph 10 of the November 30, 1999 Confirmation Order (so-called “Paragraph 10 Claimants”); and
- Late Claimants whose claim has been recently allowed as timely by either the agreement of the parties and/or the Court and Late Claimants whose claim may be allowed as timely in the future (“Late Claimants”); and
- Claimants whose release dispute is described in paragraph 1 of Exhibit A to the Stipulation and Order Establishing Procedures For Resolultion of Disputes Regarding Release of Claims Against Dow Corning and Election of Settlement Option, dated December 22, 2004 (“Disputed Release Claimants”); and
- Claimants who were not able to be explanted by the June 1, 2006 deadline because of problems experienced by the SF-DCT in implementing the Explant Assistance Program, problems experienced by claimants in locating a qualified surgeon willing to perform the surgery through the Explant Assistance Program, and/or claimants who could not afford the surgical costs or could not afford to prepay the surgical costs as required by many surgeons; and
- Claimants whose medical records for rupture are either in Dow Corning’s or the SF-DCT’s possession pursuant to the Stipulated Confidentiality Order Regarding Unredacted Medical Records in Dow Corning’s Possession, dated December 23, 2005, but the claimant has not been informed of this by the June 1, 2006 deadline so that she could file a Rupture Claim Form.
Dow Corning filed a Response agreeing that claimants in categories 1-3 above should be given an extension, but urged the Court to allow only 6 months. The CAC asked for a one-year extension, and we repeated this request in our Reply brief. Please note that there are no extensions granted or formally agreed to at this time. Copies of all motions can be viewed on the CAC website (www.tortcomm.org) under “Pending Motions.”
3. SIEGEL KELLEHER LAW FIRM FILES MOTION FOR EXTENSION OF THE JUNE 1, 2006 DEADLINE AND CHALLENGES THE DENIAL OF RUPTURE PROOF BASED ON DR. BLAIS’ EXAMINATION AND EXPERT STATEMENT
On May 31, 2006, the law firm of Siegel Kelleher filed a motion on behalf of certain of its clients asking for an extension of the June 1, 2006 deadline for rupture claims and challenging the SF-DCT’s denial of rupture proof based on an expert report and examination by Dr. Pierre Blais. The CAC filed a Response agreeing that Dr. Blais’ reports and those of other experts who have examined the removed implant for proof of rupture are a highly reliable and valid way to prove how the implant shell failed and should be considered. A copy of the motion and the CAC’s Response is available on the CAC’s website (www.tortcomm.org) under “Pending Motions.”
4. ELLIS & RAPACKI LAW FIRM FILES MOTION FOR EQUITABLE RELIEF BASED ON EXPERT PROOF OF RUPTURE
On July 6, 2006, the Ellis & Rapacki law firm filed a Motion for Equitable Relief based on the expert report of rupture from Dr. Michael Middleton. A copy of the Motion and exhibits are being posted to the CAC website under “Pending Motions” and should soon be available. Other claimants whose rupture proof is based on an expert report and has been denied may consider filing a motion similar to the Siegel Kelleher and Ellis & Rapacki motions (and the CAC’s Response to the Siegel Kelleher motion).
5. STATUS OF DISABILITY A MOTIONS
On June 9, 2006, the Claims Administrator issued a Memorandum to the parties, at their request, detailing the history of the Disability A claims processing by the MDL and SF-DCT. The Memorandum confirmed that 99% of all Current Disease claims in the Revised Settlement Program had their Disability A claims processed under the standard of “vocation or self-care.” The CAC filed the Memorandum with the Court in advance of oral argument on June 20, 2006, and Dow Corning filed a Response and Objection asking the Court to disregard the Memorandum from the Claims Administrator. Despite all evidence to the contrary including the plain language used in the definition itself, Dow Corning asserts that the standard for Disability A should be “vocation and self-care.”
Following oral argument, the Court took the matter under advisement. The CAC filed a Reply brief on June 29, 2006 responding to Dow Corning’ Objection that the Claims Administrator’s report should not be considered. A copy of the Reply brief (which has a good summary of the issue) is available on the CAC website (www.tortcomm.org) under “Pending Motions.”
6. STATUS OF CAC’S MOTION REGARDING RELEASES DOW CORNING SOLICITED FROM 1992 – 1995
The CAC filed a motion several months ago challenging the validity and enforceability of certain releases that Dow Corning solicited from unrepresented claimants from 1992 – 1995. After reviewing Dow Corning’s Response, the CAC filed a lengthy Reply brief with exhibits on June 30, 2006. The CAC’s position is that unrepresented claimants who signed a “Receipt and Release” (or other similar) document during this time period agreed to release only their claim for explant expenses and not claims for general damages including rupture and disease. Claimants who may be covered by this motion who have not already contacted the CAC are urged to do so.
Copies of all of the pleadings are available on the CAC’s website under “Pending Motions.”
7. ESTATE CLAIMS AFFIRMATION AND AGREEMENT FORM
The SF-DCT has a one-page form available for law firms to use to distribute payment to appropriate persons based on a deceased claimant’s claim – “Estate Claims Affirmation and Agreement.” The form requires the law firm to certify certain information and indemnify the SF-DCT, so read it carefully before completing and returning it. A copy of the form can be downloaded from the CAC’s website (www.tortcomm.org) or by calling the SF-DCT at 866-874-6099.
8. FINANCE COMMITTEE RELEASES A SUMMARY OF THE INDEPENDENT ASSESSOR’S REPORT
On June 23, 2006, the Finance Committee released a Summary of the Independent Assessor’s report concerning the adequacy of funds to pay claims. The Summary states that:
The Independent Assessor of the Settlement Facility – Dow Corning Trust (SF-DCT) reviewed the liabilities and assets of the facility as of the end of the year 2005 and estimated that the facility would remain solvent under each of a range of liability and asset assumptions tested. During the second quarter 2006, the Independent Assessor reviewed claim form filings and results of the facility through the first quarter of 2006 and found no reason to believe that future liabilities would fall outside of the forecasted range produced in the year-end 2005 estimate.
Premium Payments are not yet authorized to be paid. A copy of the Summary is available on the CAC website under “Other Downloads.”
9. OTHER ISSUES
The CAC is working on additional issues for our next newsletter including an updated claims processing and payment report, processing and re-review wait times, updates on late claims objections filed by Dow Corning, and the status of unmatched Notice of Intent claims, as well as other issues.
10. YOUR ASSISTANCE REQUESTED
If anyone knows of a QMD Rheumatologist in the Shreveport, Louisiana area, please let us know at firstname.lastname@example.org.
If anyone participated in the Dow Corning Removal Assistance Program from 1992 – 1995 and had a Dow Corning tissue expander removed, please contact us at email@example.com.
If you have any comments about the Explant Assistance Program and the ability to have your implants removed by the June 1, 2006 deadline, please send us an email describing the problems at firstname.lastname@example.org. We attached numerous emails (with names redacted) to our Motion for Extension and Reply brief and would like to share other correspondence with the Court.
11. 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.
||Type of Deadline
|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
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