CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER

Volume 6, No. 11, October 29, 2009

Contact the CAC at:  info@tortcomm.org or

phone: (419) 394-0717

fax:  (419) 394-1748

 

 

Sybil Niden Goldrich

Ernest Hornsby, Esq

Dianna Pendleton-Dominguez, Esq.

 

 

This is the 65th e-newsletter (Vol. 6, No. 11) 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.             DOW CORNING FILES APPELLATE BRIEF REGARDING THE  ELIGIBILITY OF TISSUE EXANDERS AS "BREAST IMPLANTS"

 

On October 14, 2009, Dow Corning filed its appellate brief regarding the eligiblity of tissue expanders as "breast implants" in the Dow Corning Plan.  A copy of the brief is available on the CAC's website (www.tortcomm.org) under "Appeals to the 6th Circuit."  The response brief of the CAC will be filed on  November 13, 2009.  Dow Corning's reply brief is due 17 days thereafter.

 

The briefing schedule for the "Disability A" issue is:

 

                        Dow Corning's brief is due ...           November 5, 2009

                        CAC's Response brief is due ...        December 8, 2009

                        Dow Corning's reply brief is due ...  17 days after CAC brief is filed

 

 

2.             COURT ENTERS AGREED ORDER ALLOWING TISSUE EXPANDER CLAIMS AND DISABILITY A CLAIMS TO BE PROCESSED PENDING APPEAL

 

The Court entered a Stipulation and Agreed Order that allows the Settlement Facility to continue processing all tissue expander and disease claims that qualify for Disability A based on the Court's Order of June 10, 2009 (100% disabled based on self-care or vocation).  If the appeals are resolved in favor of the CAC (claimants), then the Settlement Facility will be prepared to promptly issue payment.  A copy of the Stipulation and Agreed Order is posted on the CAC website (www.tortcomm.org).

 

 

3.             SETTLEMENT FACILITY UPDATES ITS WEBSITE

 

The Settlement Facility recently updated its website with a new design.  The website address remains the same:  www.sfdct.com or www.dcsettlement.com.  If you have any comments about the website (postive or negative), please let us know at info@tortcomm.org. 

 

 

4.             UPDATE ON PREMIUM PAYMENTS

 

We know many of you are anxious to receive a "Premium Payment."  (Premium Payments are available only to approved Disease claimants and approved Rupture claimants.)  We are continuing our efforts with the Finance Committee urging them to recommend that these payments be made and then for the District Court to approve them.  The issue is still under discussion and consideration by the Finance Committee.   We are working with them and the Independent Assessor to make sure they correctly analyze the existing claims, project future claims, and, significantly, to ensure that sufficient funds are available to pay all claims.  The Plan requires that this analysis be done quarterly as well as annually.  As soon as we know anything more, we will update our website and newsletter.

 

5.             ALERT:  NEW FEDERAL STATUTE REGARDING MEDICARE AND MEDICAID REIMBURSEMENT

 

A recent federal statute requires that certain entities that pay claims arising from illness or injury report all such payments to the Centers for Medicare and Medicaid Servcies (CMS), the agency that administers Medicare and Medicaid.  The statute required these entities to register by September 30, 2009.  While we do not believe that the Settlement Facility is required to report any payments based on our global settlement with the U.S. Government for Medicare and Medicaid payments to claimants, the Settlement Facility did register – out of an abundance of caution that the statute might apply to it since the financial penalties for failing to register can be severe -- as a "responsible reporting entity" by the deadline. 

 

The new statute has mandatory reporting requirements where entities must report payments for claims arising from illness or injury to the CMS so that the agency can make an appropriate determination concerning coordination of benefits including any applicable recovery claim. 

 

The effect of the new statute on the Settlement Facility and on claimants and law firms is not known at this time.  We are working with the Claims Administrator and others regarding this issue and will report more in future newsletters.  In the meantime, if any attorney or law firm receives a notice or other correspondence with the Centers for Medicare and Medicaid Services about a payment received from the SF-DCT, please let the CAC know by writing us at info@tortcomm.org.

 

6.             INFORMATION ON FILING A CLAIM ON BEHALF OF A DECEASED CLAIMANT

 

Women who have or had a Dow Corning breast implant and submitted acceptable Proof of Manufacturer to the SF-DCT are eligible to receive compensation from the SF-DCT even though they have passed away.  Legal representatives or Executors of the deceased claimant should notify the SF-DCT of the claimant's death, and the SF-DCT will inform you of the necessary papers you must submit to them to receive the claimant's compensation.  Contact the SF-DCT toll free at 1-866-874-6099 or by email at info@sfdct.com for more information.

 

7.             REMINDER:  THE REVISED SETTLEMENT PROGRAM ("RSP") WILL CLOSE TO ALL CLAIMS ON DECEMBER 15, 2010

 

This is a reminder to anyone who has or had an implant made by Baxter (Heyer-Schulte, American Hospital Supply, etc.), Bristol (Natural Y, Surgitek, MEC, Replicon, etc.) and/or 3M / McGhan that the deadline to file any and all claims in that settlement is December 15,2 010.  (A complete list of eligible products for the RSP is on the CAC website (www.tortcomm.org) under the tab "MDL 926 Claims Office – Revised Settlement Program."

 

Please note that this deadline applies only to the Revised Settlement Program.  It does NOT apply to claims in the Dow Corning Settlement Facility.

 

8.             REMINDER:  THE DEADLINE TO APPLY FOR EXPEDITED RELEASE BENEFITS FOR DOW CORNING IMPLANT CLAIMANTS (CLASSES 5, 6.1 AND 6.2) HAS BEEN EXTENDED TO JUNE 3, 2019

 

The Settlement Facility originally established a deadline of 3 years from the Effective Date – or until June 1, 2007 – to apply for an Expedited Release Payment.  The Plan, however, allowed the Claims Administrator to extend this deadline – and this was done.  Any Dow Corning Breast Implant Claimant who has submitted acceptable proof that they had or have a Dow Corning Breast Implant can receive an Expedited Release Payment of:  $2,000 for Class 5 claimants (U.S. women), $1,200 for Class 6.1 claimants (foreign claims in UK, Germany, and other countries) or $$700 for Class 6.2 claimants (Brazil, Korea, etc.)  For more information, contact the Settlement Facility at the toll free number:  1-866-874-6099 or by email:  info@sfdct.com.

 

9.             STATUS OF DISEASE CLAIMS PROCESSING

 

As we reported previously, the Settlement Facility received a large volume of submissions in response to the July 9, 2009 cure deadline that applied to many ACTD claimants.  As a result, there is a significant backlog of Re-Review requests pending for Option 1.  We are working with the Claims Administrator to determine what can be done to expedite the re-reviews.

 

Listed below is an update on the status of "new" disease claim reviews: 

 

            Option 1 – there are 264 claims with acceptable proof of a Dow Corning breast implant waiting a 1st review in Class 5. 

 

            Option 2 – there are 364 claims with acceptable proof of a Dow Corning breast implant waiting a first review in Class 5 and 6.  SLE claims were being reviewed that were submitted in February 2008;  GCTS claims were being reviewed that were submitted in February 2007; and Scleroderma claims were being reviewed that were submitted in December 2007.

 

Class 7:   The CAC is working with the Claims Administrator on processing of Class 7 disease claims for those claimants who rejected the Cash-Out Offer.  If you previously rejected the Cash-Out Offer and now would like to accept it, please contact the Settlement Facility.

 

10.         SETTLEMENT FACILITY PAYMENTS TO CLAIMANTS –  $1.135.5 BILLION

 

As of Sepember 30, 2009, the Settlement Facility – Dow Corning Trust reports that it has issued checks to claimants in the Dow Corning Settlement Fund totalling approximately $1.135.5 billion dollars.

 

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

 

The SF-DCT issued approximately $8 million in payments to Claimants in Classes 5 and 6 during the month of August, of which almost $7.5 million consisted of disease payments. 

 

To date, checks totalling approximately $433.29 million have been issued to 22,414 approved rupture claimants in Classes 5 and 6.

 

Checks totalling $139.993 million have been issued to 28,899 claimants for an approved Explant claim, and another $768,000 has been paid to 256 claimants in Class 6.2 who elected the Increased Explant Payment.  Approximately $2.956 million has been paid to 598 claimants in the Explant Assistance Program for explantation.

 

Approximately 24,951 approved disease claimants have been issued checks totalling approximately $483.185 million.  In addition, the SF-DCT has issued 33,047 checks totalling $57.064 million for Expedited Release.

 

There are currently 834 checks that have been issued totaling over $3.386 million that are "stale", i.e., have not been cashed within 180 days of issuance.  Most of these checks have not been cashed because claimants have moved and did not provide a forwarding address to the Settlement Facility.  The Settlement Facility spends a significant amount of time searching various sources to try and locate claimants who have moved.  We again remind all claimants and law firms to keep your contact information updated with the Settlement Facility so that correspondence and payment can be sent to you without delay. Even if you have already received a disease or rupture payment you still need to keep your address current in the event Premium Payments are approved.  To update your address with the Settlement Facility, contact them at their toll free number:  866-874-6099.

 

The approval rate for Proof of Manufacturer (POM) for claimants who passed the pre-screening process (i.e., eligibility to participate in the settlement) remains at 90% for Dow Corning breast implant claims in Class 5, 78% for Class 6.1, and 59% for Class 6.2.

 

A breakdown of the payments made from June 1, 2004 through September 30, 2009 by class and benefit type is listed below:

 

 

Cumulative Payments to All Classes (including NOI claims)

June 1, 2004 – September 30, 2009

 

 

 

 

Class

 

 

 

Rupture

 

 

 

Explant

 

 

Increased Explant

 

Explant Assistance Program

 

 

Expedited Release

 

 

 

Disease

Medical Conditions in Class 9/10

Other

 Products Premium Payment

 

 

 

Total

Class 5

 

$418,332,893.22

 

$135,774,492.09

 

n/a

 

$2,947,927.10

 

$31,456,771.89

 

$477,564,143.78

 

n/a

 

n/a

 

$1,066,076,228.08

Class 6.1

 

$  13,137,750.51

 

$    4,086,362.44

 

n/a

 

$       9,000.00

 

$  2,563,218.51

 

$   5,122,618.48

 

n/a

 

n/a

 

$  24,918,949.94

Class 6.2

 

$    1,820,000.00

 

$       132,500.00

 

$768,000.00

 

$              0.00

 

$       51,100.00

 

$      498,750.00

 

n/a

 

n/a

 

$    3,270,350.00

Class 6.2: 2

 

n/a

 

n/a

 

n/a

 

n/a

 

$       86,900.00

 

n/a

 

n/a

 

n/a

 

$         86,900.00

Class 6.2: 3

 

n/a

 

n/a

 

n/a

 

n/a

 

$     129,000.00

 

n/a

 

n/a

 

n/a

 

$       129,000.00

Class 7

 

n/a

 

n/a

 

n/a

 

n/a

 

$20,871,249.01

 

n/a

 

n/a

 

n/a

 

$  20,871,249.01

Class 9

 

$      125,000.00

 

n/a

 

n/a

 

n/a

 

$  1,751,145.10

 

n/a

 

$2,850,000

 

$14,057,500

 

$  18,783,645.10

Class 10.1/2

 

$          6,000.00

 

n/a

 

n/a

 

n/a

 

$    154,650.00

 

n/a

 

$   219,625

 

$ 1,035,875

 

$    1,416,150.00

 

Total

 

$433,421,643.73

 

$139,993,354.53

 

$768,000.00

 

$2,956,927.10

 

$57,064,034.51

 

$483,185,512.26

 

$3,069,625

 

$15,093,375

 

$1,135,552,472.13

 

 

 

Class 7 – Silicone Gel Material Claims

 

Disease Cash-Out Offers:  A total of 7,362 claimants in Class 7 have been sent the $3,000 Disease Cash-Out offer.  The Settlement Facility has begun issuing Notification of Status letters.  The CAC is working with the Claims Administrator to have payment issued to approved Class 7 disease claimants and to expedite processing of the remaining disease claims.

 

 

Class 7 – Silicone Gel Material Claims

# Class 7 Forms Filed

54,727

# of claims that are NOT eligible based on POM review

 8,346

# of claims that failed marshalling

29,116

Foreign Gel Claims Approved & Paid $600

   622

Expedited Release Claims Approved & Paid $600

6,985

# of Disease Cash-Out Offers of $3,000

7,367

TOTAL PAYMENTS OR CASH-OUT OFFERS

       14,974

TOTAL # of Claims Paid (excluding those who rejected the Cash-Out Offer)

       13,368

TOTAL AMT PAID as of 8-31-09

$20,871,249.01

 

 

Notice of Intent (NOI) Claims Processing

 

The Settlement Facility has paid a total of $24,110,250 in Explant and Rupture payments to Notice of Intent (NOI) claimants.  The SF-DCT is current in processing Proof of Manufacturer, Explant and Rupture claims for NOI claimants.

 

 

Type of Claim

Total Claims Paid

Amount

Rupture

 1,057

$19,972,850.00

Explant

1,147

$  5,451,317.70

Explant Assistance Program

    36

$     175,200.00

Total

2,240

$25,599,367.70

 

 

11.         DEADINE 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.

 

 

Deadline Date

Type of 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:  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

 

Phone Number:  (419) 394-0717

Fax Number:  (419) 394-1748

Email:  info@tortcomm.org

 

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.