CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER

Volume 5, No. 14, November 25, 2008

Sybil Niden Goldrich

Ernest Hornsby, Esq.

Dianna Pendleton-Dominguez, Esq.

This is the 54th e-newsletter (Vol. 5, No. 14) from the Claimants' Advisory Committee (CAC) in the Dow Corning bankruptcy Settlement Plan.  You were sent a copy of the newsletter because our records show that you requested to be on the mailing list.  If you wish to unsubscribe, click here 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.

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 866-874-6099.  The Claimants' Advisory Committee does not have access to individual claimant files to answer these kinds of questions.

1.     URGENT DEADLINE REMINDER TO SETTLING LATE CLAIMANTS:  JANUARY 21, 2009 IS THE DEADLINE TO SUBMIT ALL CLAIM FORMS

            NOTE:  This reminder applies only to "Settling Late Claimants."  It does not apply to any other claimants in the Dow Corning case. 

            If you are a Settling Late Claimant covered by the Court's Order of December 12, 2007 (Agreed Order Allowing Late Claimants Limited Rights to Participate in the Plan's Settlement Facility), then you must submit all claim forms and documents supporting your claims for Explant, Rupture and Disease or Expedited Release by January 21, 2009.  If you have questions about your claim, contact the Settlement Facility at their toll-free number:  866-874-6099 or contact them by email at:  info@sfdct.com.  If you need legal assistance with your claim, you can contact the Claimants' Advisory Committee at info@tortcomm.org.

2.     SECOND RUPTURE PAYMENT AUTHORIZED FOR NOI CLAIMANTS

            NOTE:  This section applies only to NOI Claimants.  If does not apply to any other claimants in the Dow Corning case.

            The Claims Adminstrator has authorized NOI Claimants who have an approved Rupture claim to receive their second installment payment of $10,000 (Class 5).  Payments will be mailed beginning at the end of November 2008.

3.     PAYMENTS CONTINUE TO BE MAILED TO CLAIMANTS WHO WERE SUBJECT TO THE MDL LIENS

            As we reported earlier, the Claims Administrator began issuing payments to claimants whose claims were previously on hold because of a lien asserted by the MDL-926 Claims Office.  The Court ruled on August 8, 2008 that the MDL-926 Claims Office did not have standing to assert the liens against claimants in the Settlement Facility.  The first batch of payments was issued in October 2008 and the Settlement Facility continues to issue payments.  If you believe your claim was covered by the Order of August 8, 2008 and you have not received your payment by the end of 2008, please contact the Claimants' Advisory Committee at info@tortcomm.org.

            We are aware that some claims remain on hold based on a Quality Control audit.  We are working through these claims.  If you have been notified that your claim is on hold because of Quality Control issues and you had a claim in the MDL-926 Claims Office, please contact us.

4.     ATTORNEY ASSISTANCE AVAILABLE

            If you are unrepresented and are considering filing a disease claim and think you may want legal representation, please contact the Claimants' Advisory Committee at info@tortcomm.org.  We will share with you the names of attorneys and law firms who have indicated that they are willing to represent claimants with disease claims.  This may be especially urgent for women who have a final disease cure deadline that will expire or for any claimant considering filing a Disease claim.  You can also contact us by phone at 419-394-0717.

5.      INDEPENDENT ASSESSOR EXECUTIVE REPORT POSTED ONLINE

            The Independent Assessor appointed by the Court has issued its required quarterly report on the projections of likely amounts of funds to satisfy claim payments.  A copy is posted on the CAC website www.tortcomm.org.  The summary report states:

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 second quarter of 2008 and estimated that the facility would remain solvent under each of a range of liablity and asset assumptions tested.  Until patterns of filing and claims acceptance become more certain, use of the current estimates for the purpose of determining whether premium payments can be made is premature.

6.     POST PAYMENT AUDIT LETTERS MAILED BY THE SF-DCT

            We were recently informed by the Settlement Facility that it had mailed "post payment audit letters" to law firms who represent claimants whose recent mailing address was outdated.  The Settlement Facility asks that law firms provide a copy of the Settlement Sheet sent to claimants and a copy of the front and back of the cancelled checks sent to claimants for payment of their SF-DCT award.  The CAC  has expressed our concern that the audit seeks documents protected by the attorney-client privilege (the Settlement Sheet), and that we do not believe law firms are required to provide this information.  However, we do urge all law firms to provide the SF-DCT with a current address for their clients.  We believe this should satisfy the SF-DCT.  If you have any questions about the post payment audit letters or any other audit letters, please contact us at info@tortcomm.org.

7.  PROOF OF MANUFACTURER ISSUES

      If you have an implant that you are trying to identify based on the following criteria and your POM was denied by the Settlement Facility, please contact us at info@tortcomm.org:

size 200 cc, style round and no fixation patch, and implanted between January 1975 and December 1977

Dow Corning has agreed to re-review these implant descriptions in the "Individual Review Process" (or IRP) and "approve POM in some situations where the above indications are present."  The Settlement Facility is attempting to locate medical records that have this type of description for POM as well.

8.  CLAIMS PROCESSING UDPATES

            The Claims Administrator recently reported that processing for claims in Disease Option 1 (Classes 5 and 6) is essentially current.  If you have a Disease Option 1 claim that is ready to submit, now would be a good time to submit it because the wait time is minimal.  The Settlement Facility is currently reviewing Requests for Additional Information (RAI's) (documents submitted to cure a deficiency) that were submitted in June 2008.

            The Settlement Facility is processing GCTS claims submitted in March 2006, and Requests for Additional Information for GCTS claims submitted in February 2008.

            The Settlement Facility is processing SLE claims submitted in June 2007, and Requests for Additional Information for SLE claims submitted in March 2008.

            The Settlement Facility is essentially current in reviewing claims for Polymyositis, Dermatomyositis and Scleroderma.

9.                 OTHER CLAIM ISSUES

          There are approximately $3.9 million in stale checks issued to 950 claimants.  These checks were not cashed because in many cases claimants had moved and did not provide a current address to the Settlement Facility.  It is extremely important to keep your address and contact information current with the Settlement Facility and your attorney if you are represented.  If you move, let the Settlement Facility know by sending them a letter with your current address and contact information.

            Another reason why there are so many uncashed checks is because sadly claimants have died and their families do not know about the claim or do not know that they can still pursue a claim.  Benefits can be paid to a claimant's estate and heirs.  For information about this, contact the Settlement Facility at info@sfdct.com or at 866-874-6099 or the Claimants' Advisory Committee at info@tortcomm.org.

10.            RECENT COURT ORDERS

            The Court recently entered orders on individual claimant appeals on their denied rupture claims.  Consistent with its earlier rulings, the Court stated that:

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 Court has no authority to modify this language.

As a result, the Court stated that it could not consider claimants' requests to review the Appeals Judge's decisions.  This means that you cannot challenge the Appeals Judge's ruling on your individual claim by filing a motion to the Court.

If you have a denied rupture claim that has gone through Error Correction and Re-review but you believe the claim should have been approved based on the language in the Operative and/or Pathology Report(s), contact the Claimants' Advisory Committee at info@tortcomm.org.  If your rupture claim was based on an expert's review of your implant, please do not send these claims to us at this time.  There is a separate motion that is pending that pertains to these claims.

            The Court has not ruled on the other pending motions such as tissue expanders and the Disabilty A dispute.  As soon as we receive any ruling, we will notify you via this newsletter and by posting the order on our website.

11.            UPDATE ON MDL-926 CLAIMS OFFICE MAILINGS

            The MDL-926 Claims Office is continuing to mail letters to claimants in the Revised Settlement Program who may be affected by the closing of that office in December 2010.  Only claims in the MDL settlement and not claims in the Dow Corning settlement are affected by the December 2010 deadline.  If you have any questions about your claim in the MDL-926 settlement, contact the Claims Office for the Revised Settlement Program at:  1-800-600-0311 or at claimsoffice926@aol.com.

12.            SETTLEMENT FACILITY PAYMENTS TO CLAIMANTS

As of October 31, 2008, the Settlement Facility – Dow Corning Trust reports that it has issued checks to claimants in the Dow Corning Settlement Fund totalling $1.046 billion dollars. 

Classes 5, 6.1 and 6.2 – Dow Corning Breast Implant Claimants

Checks totalling over $418.3 million dollars have been issued to 21,971 approved rupture claimants.  In addition, approximately 22,589 approved disease claimants have been issued checks totalling approximately $414.8 million. The approval rate for Proof of Manufacturer (POM) continues to remain at approximately 82% for Dow Corning breast implant claims.  A breakdown of the payments cashed from June 1, 2004 through October 31, 2008 by class and benefit type is listed below:

Cumulative Cashed Checks for Payments to All Classes (including NOI claims)

June 1, 2004 – October 31, 2008

Class 7 – Silicone Gel Material Claims

POM Review:  The remaining claims to be reviewed are primarily foreign claims that require translation.

Disease Cash-Out Offers:  A total of 7,221 claimants in Class 7 have been sent the $3,000 Disease Cash-Out offer.  Of this number, 71% have cashed the check and accepted the payment, 14% have returned the check and asked for a full disease review, and 15% are pending (they have not cashed the check or returned it to the SF-DCT).  Most of the claimants who rejected the offer have applied for a Disease Option 1 claim (729) and, of this number, 580 reviews have been completed.  No claims in Disease Option  for Class 7 have been done.  The Settlement Facility has begun issuing Notification of Status letters; however, no Class 7 disease claims can be paid until all disease claims have been reviewed and the one-year time deadline to cure deficiencies has expired.  This will take at least another year or more to complete.

The total payout of cashed checks from the capped $57.5 million NPV fund through October 31, 2008 is $20,368,033.34. 

13.            OTHER 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.

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 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.