Sybil Niden Goldrich
Ernest Hornsby, Esq.
Dianna Pendleton-Dominguez, Esq.
CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Volume 5, No. 4, April 29, 2008
This is the 44th e-newsletter (Vol. 5, 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
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 866-874-6099. The Claimants’ Advisory Committee does not have access to individual claimant files to answer these kinds of questions.
FORMER MDL 926 JUDGE SAM C. POINTER, JR. PASSED AWAY MARCH 15, 2008
Judge Sam C. Pointer, Jr., the federal judge who presided over MDL 926 from its inception in 1992 until his retirement in 2000, passed away March 15, 2008. He was highly regarded by the attorneys who practiced before him in this litigation – particularly by the members of the CAC -- for his intelligence, wit and humor, all of which served him well in steering this complex and difficult litigation through the global settlement and the Revised Settlement Program. He will be greatly missed.
When Judge Pointer retired, he joined the law firm of Lightfoot, Franklin & White, LLC in Birmingham, Alabama. The following is a post from the Lightfoot Franklin website concerning his career:
Sam C. Pointer, Jr., former federal judge, died on March 15, 2008, at age 73. A Phi Beta Kappa graduate of Vanderbilt University, Judge Pointer graduated first in his class from the University of Alabama Law School and received an LLM from New York University in 1958.
Judge Pointer was appointed U.S. District Judge in 1970 (at that time the youngest federal judge in the country) and served in that capacity until his retirement from the bench in 2000. For seventeen years he was Chief Judge of the Northern District of Alabama and during his time as federal judge, he presided over the most complex cases in the court system, including the Cast Iron Pipe Antitrust Litigation, the Plywood Antitrust Litigation and the Silicone Gel Breast Implant Litigation (the latter involving 26,000 cases). He chaired the Advisory Committee on Civil Rules and was the principal author of the Manual for Complex Litigation.
It was in the area of civil rights that Judge Pointer made his greatest contribution. In the turbulent seventies, his courageous decisions on school desegregation, employment discrimination and prison conditions recognized the rights and dignity of all our citizens, but caused him to be ostracized to the point of requiring around the clock U.S. Marshal protection for himself and his family. “ Sam Pointer stood in the eye of the civil rights storm for more than a decade and never wavered from the oath he took as a judge,” said Warren Lightfoot. “When the roll is called for the heroes of the twentieth century, for the giants who moved this country forward, Sam Pointer’s name will be at the top of the list.” Because of his contributions to this nation, he received numerous awards, including the prestigious Gates Award from the American College of Trial Lawyers.
1. URGENT REMINDER FOR CERTAIN PRIMARY SJOGREN’S SYNDROME (PSS), MIXED CONNECTIVE TISSUE DISEASE (MCTD) AND OVERLAP SYNDROME (OS) CLAIMANTS – FINAL Cure Deadline OF MAY 2, 2008
This is an URGENT REMINDER for all claimants who submitted a claim for either Primary Sjogren’s Syndrome (PSS), Mixed Connective Tissue Disease (MCTD) or Overlap Syndrome (OS), AND who received a Notification of Status letter from the Settlement Facility – Dow Corning Trust (SF-DCT) that the claim was deficient, AND whose Cure Deadline has or will run on or before May 1, 2008: THE FINAL Cure Deadline TO ADDRESS ANY DEFICIENCIES IN YOUR CLAIM IS MAY 2, 2008. This Cure Deadline does NOT apply to anyone who has not filed a disease claim yet or who has received a Notification of Status letter that sets a Cure Deadline later than May 2, 2008.. Claimants who have not submitted a disease claim can still apply for any of these diseases until June 3, 2019.
Information on Primary Sjogren’s Syndrome, Mixed Connective Tissue Disease and Overlap Syndrome claims criteria and processing is posted on the CAC website (www.tortcomm.org) under the navigator tab entitled “Disease Claims” and is also available on the SF-DCT website (www.dcsettlement.com or www.sfdct.com). Information is also posted for Scleroderma, Polymyositis and Dermatomyositis.
2. SF-DCT POSTS CLAIMS CRITERIA AND PROCESSING INFORMATION ON GENERAL CONNECTIVE TISSUE SYMPTOMS (GCTS)
The SF-DCT will release information on claims criteria and processing for General Connective Tissue Symptoms (GCTS) on or before May 1, 2008. The CAC will also post this information on its website: www.tortcomm.org under the left navigator tab entitled, “Disease Claims.” Claimants who intend to file a claim for GCTS should read this document carefully before submitting their claim.
The schedule for the release of additional information for ANDS, SLE and ACTD is:
Atypical Neurological Disease Syndrome (ANDS) – claims processing information will be released on June 2, 2008, and the final Cure Deadline for those persons whose Cure Deadline will run on or before November 30, 2008 is December 1, 2008.
Systemic Lupus Erythematosus (SLE) – claims processing information will be released on July 14, 2008, and the final Cure Deadline for those persons whose Cure Deadline will run on or before January 13, 2009 is January 14, 2009.
Atyical Connective Tissue Disease (ACTD) – claims processing information will be released by September 2, 2008, and the final Cure Deadline for those persons whose Cure Deadline will run on or by March 1, 2009 is March 2, 2009.
If you have any question about what deadline applies to your disease claim, please contact the Settlement Facility toll free at 1-866-874-6099.
3. SETTLEMENT FACILITY PAYMENTS TOTAL OVER $995 MILLION THROUGH MARCH 2008
The Settlement Facility has released information about the status of claims processing and payments through March 31, 2008, The information is summarized below:
Through MARCH 31, 2008, the SF-DCT has received 75,126 Proof of Manufacturer claim forms in Classes 5, 6.1 and 6.2 (Dow Corning Breast Implant Claims). Of this number, 61,546 or 81.92% have acceptable proof of at least one Dow Corning breast implant. Of the 61,546 Dow Corning breast implant claimants with acceptable proof of manufacturer, almost 34% (one-third) or 20,803 women have been approved for a Rupture claim for their Dow Corning silicone gel breast implant.
|CLASS 5, 6.1 AND 6.2 (EXCLUSIVE OF NOI PAYMENTS)
(DOW CORNING BREAST IMPLANT CLAIMS)
||NUMBER OF CLAIMS PAID THROUGH MAR 31, 2008
||PERCENTAGE OF CLAIMS APPROVED CLASS 5 | CLASS 6
||TOTAL $$ PAID IN CATEGORY THROUGH MAR 31, 2008
||71% | 45%
||99% | 94%
||90% | 50%
|INCREASED EXPLANT (6.2 ONLY)
||N/A | 88%
||90% | 73%
|DISEASE OPTION 1
||82%* | 51%
|DISEASE OPTION 2
||20%* | 5%
* The approval percentage includes “MDL pass-through” claims, i.e., claims that were reviewed and approved by the MDL 926 Claims Office in the Revised Settlement Program and, because the claimant also had a Dow Corning breast implant, the claim “passes through” automatically for the remaining 50% payment by the SF-DCT. Excluding the MDL pass-through claims, the approval rate for Disease Option 1 in Class 5 is 80%. For Disease Option 2, the approval rate excluding MDL pass-through claims is 15%.
Disease Claim Review:
Most claimants have sought and been approved for Atypical Connective Tissue Disease (ACTD), a claim in Disease Option 1 (18,752 claims approved). The SF-DCT is essentially current in processing Disease Option 1 claims. Disease Option 2, however, still has a substantial backlog of claims to review.
Class 7 – Silicone Gel Material Claims
Approximately 12,271 claimants in Class 7 – Silicone Gel Material Claims – have been approved for either an Expedited Release Payment ($600) or a Disease Cash-Out Offer ($3,000). Total payments to date from the Class 7 Fund are approximately $16.9 million. The total fund is $57.5 million NPV. The Settlement Facility continues to review Proof of Manufacturer claims in Class 7 and expects to complete all Proof of Manufacturer reviews in June 2008.
The SF-DCT has begun to review the 912 Class 7 disease claims currently on file and is sending out Notification of Status letters on deficient Class 7 claims. Once the disease claims are reviewed, the Claims Administrator will determine if claims can be paid at the maximum 40% of the disease grid.
Marshalling Issue for Class 7 Claims
There are a number of pending appeals before the Claims Administrator and Appeals Judge regarding the marshaling requirement for certain Class 7 claimants. No decision has been made on these appeals. We will update you on this as soon as information is available.
|Class 7 – Silicone Gel Material Claims
|# Class 7 Forms Filed
|# of claims that are NOT eligible based on POM review
|Foreign Gel Claims Approved & Paid $600
|Expedited Release Claims Approved & Paid $600
|# of Disease Cash-Out Offers of $3,000
|TOTAL # OF PAYMENTS OR CASH-OUT OFFERS
|TOTAL # of Claims Paid (excluding those who rejected the Cash-Out Offer)
|TOTAL AMT PAID as of 3/31/2008
Class 9 and 10 – Dow Corning Covered Other Products
Processing of claims in Classes 9 and 10 – the Covered Other Products Fund – is substantially completed. Below is a chart showing the total number of Class 9 and 10 claims filed and paid to date:
CLASS 9, 10.1 AND 10.2
DCC "COVERED" OTHER PRODUCTS
NUMBER OF FORMS FILED
NUMBER OF CLAIMS REVIEWED
NUMBER OF CLAIMS APPROVED
# CLAIMS PAID 1ST PAYMENT
# CLAIMS PAID PREMIUM PAYMENT
PERCENTAGE OF CLAIMS APPROVED FOR 1ST PAYMENT
$ AMOUNT PAID 1ST PAYMENT
$ AMOUNT PAID PREMIUM PAYMENT
|PROOF OF MANUFACTURER
|INFLAMMATORY FOREIGN BODY RESP. (TMJ, finger, wrist, toe, knee & hip)
|IMPLANT FAILURE (TMJ, finger wrist, toe knee, hip & testicular)
Processing and Payment for Notice of Intent (NOI) or Conditional Claimants:
The SF-DCT continues its review of Notice of Intent (NOI) or Conditional Claimants. To date, $6.67 million has been paid for Rupture and Explant Claims out of a capped $30 million fund (Note: Disease and Expedited Release payments to NOI claimants do NOT count towards the $30 million cap). At this time, the SF-DCT is issuing 100% payment on Explant claims to NOI claimants, and is paying Rupture claimants in two installment payments. The first Rupture payment is $10,000 (Class 5). The amount of the second Rupture installment payment to NOI Claimants will be determined once all claims have been reviewed and the allowable amount can be determined.
Currently, the SF-DCT has approved 487 of 792 Rupture claims it has reviewed for NOI claimants, or 61.5%, and approved 596 of 680 Explant claims, or 87.6%. Review of Explant and Rupture claims for NOI claimants should be current in approximately 60 days.
Reminder: The deadline for NOI claimants to file a claim for Explant and/or Rupture is October 20, 2008. We urge NOI claimants to submit their forms and documents for Explant and Rupture as soon as possible.
|CLASS 5, 6.1 AND 6.2
||TOTAL FORMS FILED
||FORMS FILED WITH POM
|| # CLAIMS PAID
|| TOTAL AMT PAID
4. RECENT RULINGS BY DISTRICT COURT
a. Appeals of Denied Rupture Claims by Individuals: On March 31, 2008, the District Court entered Orders in several individual claimant appeal cases concerning the claimant’s denied rupture claim. The rulings (with names of the claimants removed) are posted on the CAC website (www.tortcomm.org) under the left navigator tab entitled “Court Orders.” A summary of the rulings is found below in a quote from one of the Orders. The Court stated:
The Plan provides that “[t]he decision of the Appeals Judge is final and binding on both Reorganized Dow Corning and the claimant.” (SFA, Annex A, § 6.02(vi)) The Plan provides no right to appeal to the Court and expressly sets forth that the decision of the Appeals Judge is final and binding on both the Reorganized Dow Corning and the claimants. Allowing the appeal to go forward and to direct the Claims Administrator to pay a denied rupture claim would be a modification of the Plan language. The Plan’s language is clear and unambiguous that the decision of the Appeals Judge is final and binding on the claimants and the Reorganized Dow Corning. [The law firm in question] has not shown that the Court has any authority to modify this language. At the hearing in this matter, [the law firm] agrees that an appeal to the Appeal’s Judge is final and non-appealable, therefore, [the law firm] chose to raise this issue before the Court by way of the instant motion. Although bankruptcy courts have broad equitable powers that extend to approving plans of reorganization, these equitable powers are limited by the role of the bankruptcy court, which is to “guide the division of a pie that is too small to allow each creditor to get the slice for which he originally contracted.” In re Dow Corning, 456 F.3d at 677-78 (quoting In re Chicago, 791 F.2d 524, 528 (7th Cir.1986)). “A bankruptcy court’s exercise of its equitable powers is cabined by the provisions of the Bankruptcy Code.” Id. at 678 (citing In re Highland Superstores, Inc., 154 F.3d 573, 578-79 (6th Cir.1998)).
In this case, the plan of reorganization has been approved and the Court must now interpret any plan language pursuant to law governing contract interpretation. [The law firm] has not shown that the Court has the authority to exercise its equitable powers outside the unambiguous Plan language. The Court has no authority to review the SF-DCT’s decision denying any rupture claim by way of an appeal from the Appeals Judge’s decision or by way of a motion before the Court.
b. Order Dismissing Settling Late Claims: On Mach 31, 2008, the court entered orders dismissing the cases of all late claimants who accepted the settlement offer. The dismissal order closes each of the individual cases that were opened when the late claim request was received by the court. Settling Late Claimants are still eligible for the benefits described in the settlement offer and Order dated December 12, 2007 (a copy of which is available on the CAC website – www.tortcomm.org – under Court Orders).
If you are a Settling Late Claimant (the names of all eligible claimants are listed as an Exhibit to the December 12, 2007 Order), you should have received your claim forms and letter from the Settlement Facility. If you have not received your forms, please contact the Settlement Facility immediately at its toll free number: 866-874-6099 or by email at: firstname.lastname@example.org.
Reminder: the deadline for Settling Late Claimants in Class 7 (Silicone Gel claims) and Classes 9 and 10 (Covered DCC Other Products) to submit all claim forms and supporting documents is July 21, 2008.
The deadline for Settling Late Claimants in Classes 5 and 6 (DCC breast implant claimants) to submit all claim forms and supporting documents is January 21, 2009.
c. Order on Motion For Relief From Previous Order: On April 18, 2008, the MDL 926 Court entered an order in an individual case regarding a 1995 State Remand Order in MDL 926 that dismissed the claim of the claimant with prejudice. The claimant alleged that her inclusion in the order was a clerical error and that she did not intend to dismiss her claim against Dow Corning. Dow Corning argued that the State Remand Order was binding and that it barred the claimant from participating in the Dow Corning Settlement Facility because she was a “released claimant.” The MDL 926 Court ruled that the claimant’s claims against Dow Corning were inadvertently dismissed and granted her relief pursuant to Federal Rule 60(b). As a result of the ruling, the claimant is now eligible to participate in the Settlement Facility. A copy of the ruling will be posted on the CAC’s website under the navigator tab of “Court Orders.”
d. Order Granting Summary Judgment to the Litigation Facility / Dow Corning: The District Court granted summary judgment to the Litigation Facility / Dow Corning in 22 cases in which Dow Corning did not manufacture or supply any of the components used in the plaintiffs’ McGhan Medical breast implants. A copy of the order is available on the CAC’s website (www.tortcomm.org) under Court Orders. This ruling does not have any effect on claims in the Settlement Facility.
Pending Motions: The following motions are pending before the court: the CAC’s motion concerning application of the Disability A standard (the and/or dispute), the CAC’s motion concerning whether tissue expanders are breast implants eligible for the SF-DCT, the CAC’s motion concerning the 24 month/5 year tolling for Disease Option 2 claims, the CAC’s motion concerning the validity of the “Receipt and Release” documents DCC obtained as part of its Explant Assistance program from 1992 – 1995, the CAC’s motion for an extension of the June 1, 2006 Rupture Deadline, and whether the MDL 926 Claims Office can assert a lien against settling claimants in the Dow Corning case. We will update our website as soon as any rulings are issued.
5. CONFIDENTIALITY OF CLAIMANTS’ NAMES AND MEDICAL INFORMATION
The Plan provides that claimants’ names and other information will be kept confidential by the Settlement Facility. However, if you send a letter to the court about your claim, it may be considered a motion and an individual case number may be established and the letter electronically docketed. This is also true for claimants who appeal a ruling by the Lien Judge. If you wish to keep your name and any information contained in documents that are sent to the court confidential (i.e., your Social Security Number, personal medical information, etc.), you must comply with the court’s CM-ECF case filing procedures policies, specifically, Rule 20, along with administrative order 07-AO-030 (copies of these procedures and administrative order will be posted to the CAC website). It is the parties' responsibility to redact the documents submitted to the court. The clerk's office will not review documents as they come in. The E-Government Act provides that parties are able to submit redacted documents but that it is their responsibility to ensure the information they submit to the court is appropriately redacted if they don't want it as part of the public record. We would like to emphasize the need for claimants to be careful with the personal information they submit to the court.
6. QUESTIONS REGARDING PREMIUM PAYMENTS FOR CLASSES 5 AND 6 DOW CORNING BREAST IMPLANT CLAIMANTS
We continue to receive a number of questions from claimants asking when they may expect to receive their Premium Payment on their approved Rupture and/or Disease claim.
We do not know when they will be approved by the Finance Committee and District Court. Section 7.03(a) of the Settlement Facility Agreement provides that the Finance Committee initiates the process for paying Premium Payments by filing a recommendation and motion with the District Court requesting authorization. To assist the Finance Committee, the Plan provides that an “Independent Assessor” shall be appointed to oversee and make recommendations concerning the development of projected funding requirements and the assessment of the availability or adequacy of assets. The Finance Committee’s recommendation and motion must be accompanied by a detailed accounting of the status of claim payments and distributions under both the Settlement and Litigation Facilities. Thereafter, the parties (Debtor’s Representatives and CAC) have an opportunity to be heard on the matter. Section 7.03(a) further provides that before Premium Payments may be allowed, the court must determine that all Allowed and allowable First Priority Claims and all Allowed and allowable Litigation Payments have been paid or that adequate provision has been made to assure such payment (along with administrative costs) based on the available assets.
At this time, neither the Independent Assessor nor the Finance Committee has recommended that Premium Payments be paid.
7. REMINDER TO KEEP YOUR ADDRESS UPDATED WITH THE SF-DCT
It is very important that you keep your address and contact information updated with the Settlement Facility. The Settlement Facility reports that it receives hundreds of letters returned to it as undeliverable because the claimant and/or attorney has moved and failed to give the Settlement Facility a forwarding address. To update your name or address with the SFDCT, write a letter to them with your new contact information.
Law firms that represent claimants who have received a Rupture and/or Disease payment need to make sure to keep an updated address for your clients who are eligible to receive Premium Payments – if and when they are authorized to be paid. Premium Payments will be mailed to the claimant or, if they are represented, to the attorney of record.
8. DEADLINE REMINDERS!
Please mark your calendar with the following claim submission deadlines. Note that different deadlines apply to Notice of Intent (NOI) Claimants and Late Claimants. Please note that most of these deadlines mean that your claim forms and materials must be received by the SF-DCT 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
|May 2, 2008
||Cure Deadline for certain claimants who previously filed a claim for Primary Sjogren’s Syndrome (PSS), Mixed Connective Tissue Disease (MCTD) or Overlap Syndrome (OS) (consult the SF-DCT about your specific Cure Deadline)
|July 21, 2008
|| LATE CLAIM DEADLINE FOR CLASS 7, THE SILICONE MATERIAL CLAIMANT FUND and LATE CLAIM DEADLINE FOR CLASSES 9 AND 10, COVERED OTHER PRODUCTS FUND. This deadline only applies to Class 7, 9 and 10 Late Claimants listed in the Court’s Order of December 12, 2007.
|August 1, 2008
|| Deadline for Other Product Claimants to submit documents to cure any deficiencies in their Proof of Manufacturer.
|August 18, 2008
|| Cure Deadline for certain claimants who previously filed a claim for Systemic Sclerosis / Scleroderma (consult the SF-DCT about your specific Cure Deadline)
|October 20, 2008
|| NOI CLAIMANTS’ Deadline to submit Explant and/or Rupture claims – Classes 5, 6.1 and 6.2 (this deadline only applies to NOI claimants; it does NOT apply to timely filed claimants)
|November 3, 2008
|| Cure Deadline for certain claimants who previously filed a claim for General Connective Tissue Symptoms (consult the SF-DCT about your specific Cure Deadline)
|December 1, 2008
|| Cure Deadline for certain claimants who previously filed a claim for Atypical Neurological Disease Syndrome (ANDS) (consult the SF-DCT about your specific Cure Deadline)
|January 14, 2009
|| Cure Deadline for certain claimants who previously filed a claim for Systemic Lupus Erythematosus (SLE) (consult the SF-DCT about your specific Cure Deadline)
|January 21, 2009
|| FILING DEADLINE for LATE CLAIMANTS in CLASS 5 AND 6 to submit all claim forms and supporting documents. This deadline only applies to LATE CLAIMANTS in Class 5 and 6.
|March 2, 2009
|| Cure Deadline for certain claimants who previously filed a claim for Atypical Connective Tissue Disease (ACTD) (consult the SF-DCT about your specific Cure Deadline)
|June 2, 2014
|| Explant Claims submission deadline for timely filed claimants in Classes 5, 6.1 and 6.2 (NOTE: this deadline does NOT apply to NOI claimants or Late Claimants)
|June 3, 2019
|| Disease or Expedited Release Claim submission deadline for all claims in Classes 5, 6.1 and 6.2 (this deadline does NOT apply to Late Claimants)
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 Post Office Box address for the CAC at:
Claimants’ Advisory Committee
P.O. Box 665
St. Marys, Ohio 45885
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.