CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER

Volume 6, No. 10, September 30, 2009

Contact the CAC at: info@tortcomm.org or

by phone at: (419) 394-0717

 

Sybil Niden Goldrich

Ernest Hornsby, Esq

Dianna Pendleton-Dominguez, Esq.

 

 

This is the 64th e-newsletter (Vol. 6, No. 10) 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.                 BRIEFING SCHEDULE SET FOR APPEALS TO 6TH CIRCUIT ON DISABILITY A AND TISSUE EXPANDER ISSUES

 

The Court of Appeals for the Sixth Circuit has established briefing schedules for the two appeals concerning whether tissue expanders implanted in the breast are "Breast Implants" as defined in the Dow Corning Plan and concerning the interpretation of the language in Disability "A" disease claims. The schedule is:

 

Tissue Expanders Dow Corning's brief is due October 14, 2009

CAC's Response brief is due November 13, 2009

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

 

Disability A 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

 

We will post copies of all briefs on our website under the navigational tab entitled "Appeals to the 6th Circuit" as they are filed with the court.

 

 

2.                 CLAIMS ADMINISTRATOR UPDATE

 

This is the most recent update posted by the Claims Administrator on the Settlement Facility website:

 

Claims Administrator's Desk  
Last Updated: 09/18/2009 @ 7:17 AM

Claims Administrator's Desk Last Updated: 09/18/2009



Processing Changes



Some of you may have already received written or verbal communication about the processing changes for Review of Additional Information and Option 2 Discretionary reviews. Please read the statements below carefully as these processing changes will affect how your claim is reviewed.



Review of Additional Information RAI reviews



Pursuant to Annex A 7.09biii of the Settlement Agreement, the Claims Office may establish regulations relating to the submission of medical documentation and set reasonable periods during which to conduct the evaluation or reevaluation of a Claimant's eligibility and benefits based on supplemental submissions and for submission of supplemental documentation after notice of deficiencies. Generally, the Claims Office will not review a Claimant's submissions in response to a deficiency notice more than twice however, the Claims Administrator may conduct a third review after the completion of the review of all other Claims for Disease.



In order to manage the volume of requests for additional claim reviews, the Settlement Facility will only review submissions of additional information twice. If you submit duplicate information or information that does not address the deficiencies in your claim, on the second re-review, we will 1 not review your claim again, and 2 we will process your claim for the payment you are eligible for at the time of the second review, even though your cure deadline may not have expired. Therefore, we encourage you to read your notification of Status letter carefully and make sure you understand the deficiencies in your claim. If you do not understand your deficiencies, we strongly encourage you to call Claims Assistance and make an appointment to speak with the Disease Call Specialist. You should also review the Disease Guidelines posted on the SFDCT website to assist you in fixing the problems with your claim. To avoid any confusion and possibly another review of your claim before you are ready, please do not send your records until you are sure you understand the deficiencies in your claim and you have collected all of the documentation needed to cure the deficiencies in your claim.



Discretionary Reviews



In an effort to expedite processing Option 2 claims and to allow your Option 2 and ACTD Discretionary reviews their own cure deadline dates, these reviews will no longer be done at the same time. If you are unable to cure your Option 2 deficiencies by the one year cure deadline date, and your claim was not approved for any level of compensation, or you did not request a lower level payment, we will automatically place your ACTD claim in line for review. You will have one year from the date of the ACTD Notification of Status letter to cure the deficiencies in your claim. However, you may request an ACTD review at any time while your Option 2 review is in progress. If you choose this option, you will have two cure deadline dates running that could expire at or around the same time.



1. As a reminder, checks issued by the SFDCT are valid for only 180 days from the date on the check. The SFDCT will automatically place a stop pay on all checks that are uncashed after the check expiration date. If you have an uncashed check that is more than 180 days past the check date, you will need to contact us in order to receive a new check. If you receive Class 7 cash out check and want to return it for a full disease review, you must return the check within 180 days from the date on the check. Failure to return the cash out offer check by the deadline will result in denying your disease review, we will, of course, return your check.



If you are an attorney who represents both claimants in the MDL926 Revised Settlement Program RSP and the SFDCT and recently received the Important Notice from the MDL926 Claims Office, the deadline to negotiate RSP checks is different than the SFDCT policy stated above. Please remember that the SFDCT and the MDL926 operate under very different protocols. This means that certain policies developed by one facility are not necessarily implemented by the other facility.



2. Documents that are submitted to the United States District Court are filed and will become public record. This means that anyone may be able to see the information you have submitted. Any information you do not want shared with the public should be redacted or removed from the document prior to sending it in. Before filing, you may want to visit the website of the District Court for more information regarding privacy.



3. If you have received a disease NOS letter, please remember to submit your documents prior to the cure deadline listed in your letter. Documents received after the applicable cure deadline will not be considered.



4. It is very important that you keep the SFDCT informed when you move. Failure to provide us with your new address can delay your claim processing, may cause your benefit check to be returned, or may prevent you from receiving a premium payment.



David Austern

 

3. UPDATE ON INDEPENDENT ASSESSOR REPORT REGARDING PREMIUM PAYMENTS

 

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 2009 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.

 

This means that Premium Payments are not authorized at this time. We do not know when the Finance Committee will recommend that Premium Payments should be made.

 

 

4.     SETTLEMENT FACILITY PAYMENTS TO CLAIMANTS - $1.127 BILLION

 

As of August 31, 2009, the Settlement Facility - Dow Corning Trust reports that it has issued checks to claimants in the Dow Corning Settlement Fund totalling approximately $1.127 billion dollars.

 

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

 

As a result of the increased focus on bringing re-reviews more current, the SF-DCT issued approximately $7.678 million in payments to Claimants in Classes 5 and 6 during the month of August, of which almost $7 million consisted of disease payments.

 

To date, checks totalling approximately $432.888 million have been issued to 22,387 approved rupture claimants.

 

Checks totalling $139.826 million have been issued to 28,864 claimants for an approved Explant claim, and another $726,000 has been paid to 242 claimants in Class 6.2 who elected the Increased Explant Payment. Approximately $2.941 million has been paid to 595 claimants in the Explant Assistance Program for explantation.

 

Approximately 24,701 approved disease claimants have been issued checks totalling approximately $475.797 million. In addition, the SF-DCT has issued 32,950 checks totalling $56.908 million for Expedited Release.

 

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 August 31, 2009 by class and benefit type is listed below:

 

 

Cumulative Payments to All Classes (including NOI claims)

June 1, 2004 - August 31, 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

 

$418,012,893.22

 

$135,616,992.09s

 

n/a

 

$2,932,927.10

 

$31,343,571.89

 

$470,444,143.78

 

n/a

 

n/a

 

$1,058,350,528.08

Class 6.1

 

$ 13,125,750.51

 

$ 4,080,362.44

 

n/a

 

$ 9,000.00

 

$ 2,557,218.51

 

$ 4,906,618.48

 

n/a

 

n/a

 

$ 24,678,949.94

Class 6.2

 

$ 1,750,000.00

 

$ 129,000.00

 

$726,000.00

 

$ 0.00

 

$ 51,100.00

 

$ 446,250.00

 

n/a

 

n/a

 

$ 3,102,350.00

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

 

$ 127,800.00

 

n/a

 

n/a

 

n/a

 

$ 127,800.00

Class 7

 

n/a

 

n/a

 

n/a

 

n/a

 

$20,840,049.01

 

n/a

 

n/a

 

n/a

 

$ 20,840,049.01

Class 9

 

$ 125,000.00

 

n/a

 

n/a

 

n/a

 

$ 1,750,145.10

 

n/a

 

$2,850,000

 

$14,057,500

 

$ 18,782,645.10

Class 10.1/2

 

$ 6,000.00

 

n/a

 

n/a

 

n/a

 

$ 151,650.00

 

n/a

 

$ 216,625

 

$ 1,035,875

 

$ 1,410,150.00

 

Total

 

$433,019,643.73

 

$139,826,354.53

 

$726,000.00

 

$2,941,927.10

 

$56,908,434.51

 

$475,797,012.26

 

$3,066,625

 

$15,093,375

 

$1,127,379,372.13

 

 

 

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. Of this number, 80% have cashed the check and accepted the payment, 15% have returned the check and asked for a full disease review, and 4% 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 (865) and, of this number, 665 reviews have been completed. No claims in Disease Option 2 for Class 7 have been reviewed. In addition, there are 700 claims in Class 7 Disease Option 1 and 571 claims in Class 7 Disease Option 2 who were not eligible for the cash-out offer and whose claim is in line for a disease review.

 

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.

 

The total payout of cashed checks from the capped $57.5 million NPV fund through August 31, 2009 is $20,840,049.01.

 

 

Class 7 - Silicone Gel Material Claims

# Class 7 Forms Filed

54,721

# of claims that are NOT eligible based on POM review

8,353

# of claims that failed marshalling

29,111

Foreign Gel Claims Approved & Paid $600

624

Expedited Release Claims Approved & Paid $600

6,983

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

7,362

TOTAL PAYMENTS OR CASH-OUT OFFERS

14,969

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

13,779

TOTAL AMT PAID as of 8-31-09

$20,840,049.01

 

 

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

945

$18,885,850.00

Explant

1,012

$ 5,049,200.00

Explant Assistance Program

36

$ 175,200.00

Total

1,993

$24,110,250.00

 

 

5. 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.