CLAIMANTS' ADVISORY COMMITTEE E-NEWSLETTER
Dow Corning Bankruptcy Settlement
Volume 11, No. 10, August 13, 2014
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 115th e-newsletter (Vol. 11, 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. To contact the CAC, use the email address: info@tortcomm.org or dpend440@aol.com. You can also contact the CAC directly at 419-394-0717.
_____________________________________________________________________________________________
COURT OF APPEALS AFFIRMS DISTRICT COURT'S RULING THAT TISSUE EXPANDERS ARE “BREAST IMPLANTS” ELIGIBLE FOR BENEFITS FROM THE SETTLEMENT PLAN
The CAC is very happy to report that the Court of Appeals issued an Order approving the District Court's earlier ruling that tissue expanders are “Breast Implants” eligible for benefits from the Settlement Plan. This resolves a decades-long dispute and litigation over this issue and a ruling in favor of the CAC's position. The SF-DCT is now processing these claims and expects to issue Notification of Status letters and payments promptly. To read a copy of the Order, visit the CAC's website at www.tortcomm.org.
COURT OF APPEALS SETS DATE FOR ORAL ARGUMENT ON PREMIUM PAYMENT APPEAL BY DOW CORNING
Dow Corning continues to pursue its appeal of the ruling that partial Premium Payments can be made to claimants. The court has set October 7, 2014 to hear oral argument. The court had ruled earlier that Dow Corning could not prevent the partial Premium Payments from being issued while the appeal was going forward. We do not believe the appeal will delay or stop any partial Premium Payments since the SF-DCT has indicated that it expects to issue all payments by early 2015.
STATUS OF PREMIUM PAYMENTS
The Settlement Facility reported that they have increased the processing of Premium Payment checks and expect to conclude the mailing either by the end of 2014 or early 2015. They are now issuing approximately 6,600 letters and checks to approved Rupture and/or Disease claimants in Classes 5, 6.1, and 6.2 (Dow Corning breast implant recipients) each month, totaling about $15 million a month. As of July 31, 2014, the SF-DCT has issued $16.65 million in Rupture Premium Payments and $5.5 million in Disease Premium Payments on over 10,000 approved claims.
We have received a number of questions from both claimants and attorneys about the partial Premium Payments, so we are including our Q&A's from a prior newsletter and several new Q&A's below:
1. What is the order for the Settlement Facility to mail partial Premium Payments?
ANSWER: Partial Premium Payments will be mailed in the order that the Base Payment was approved. This means that claims approved in 2004 will be paid first, followed by 2005, 2006, etc. until all checks have been mailed. Please note that the largest majority of approved Rupture and Disease claims occurred from 2004 – 2008 so it will take awhile to process claims for these years.
2. How much is the partial Premium Payment?
ANSWER: The District Court approved a 50% Premium Payment at this time. If you had an approved Rupture claim, your partial Premium Payment will be $2,500 (Class 5). If you had an approved Disease claim, your partial Premium Payment will be 10% of your Disease payment. For example, if you were approved at ACTD Level C for $10,000, then your partial Premium Payment is 10% of $10,000, or $1,000.
3. How much will I receive?
ANSWER: The CAC does not have access to your claimant files, so we cannot tell you how much your partial Premium Payment will be. You can contact the Settlement Facility for this information; however, we urge you to be patient and wait for your award letter. If the Settlement Facility is overwhelmed responding to calls about how much each individual claimant will receive, then they are not able to work on actually getting the award letters and checks mailed. We realize everyone wants to know how much they will receive, but you can calculate this yourself based on your approved claim(s). (See Question 2 above)
4. When will I receive the rest of the Premium Payment?
ANSWER: We do not have a date when the remainder of the Premium Payment will be made. It is likely that it will be made closer to the end of the Settlement Plan in 2019.
5. My Disease and/or Rupture payment was reduced by 50% already because I had a silicone gel breast implant from both Dow Corning and either Bristol, Baxter, and/or 3M. Will my partial Premium Payment be reduced by 50% as well? If so, how can I recover the other 50%?
ANSWER: Yes, it will be reduced by 50% because of the multiple manufacturer reduction. The other manufacturers in the Revised Settlement Program did not provide a Premium Payment, so you will not be able to recover the other 50% of your Premium Payment from them.
6. Are there Premium Payments for Class 7 claims?
ANSWER: No. The Plan that was approved by the bankruptcy court did not provide for Premium Payments to Class 7 (Silicone Gel Claimants).
7. When will Class 7 approved Disease claims be paid?
ANSWER: It is our goal to have these payments issued in 2014. We cannot provide an exact date at this time. We realize this issue is very important to those who are waiting for their payment, and we are working to finalize and prioritize these payments.
8. What is the value of all the Premium Payments that will be paid now?
ANSWER: The motion filed by the Finance Committee projected that paying partial Premium Payments now would cost approximately $110 million.
9. Can my attorney take a fee from my partial Premium Payment?
ANSWER: Yes, if you were represented by that attorney at the time your claim was processed and approved then the attorney is entitled to be paid a fee. This is because the Premium Payment is part of the overall award that your attorney obtained on your behalf. The partial Premium Payment is a delayed installment of that award.
10. How much in attorney fees can be deducted from my partial Premium Payment?
ANSWER: The Plan sets attorney fee limits as follows:
10% of the first $10,000
22.5% of the next $40,000
30% of any amount over $50,000
Please note that the attorney who represented you at the time your Rupture and/or Disease payment was approved can add these payment amounts together if applicable to calculate their fee. For example, if you received a $20,000 Rupture payment and a $10,000 Disease payment, these 2 payments total $30,000. The attorney's fee would be 22.5% of your partial Premium Payment.
Attorneys may NOT include the Expedited Payment or the Explant Payment in determining attorney fees on your partial Premium Payment.
11. What happens to my partial Premium Payment if my attorney no longer represents me now?
ANSWER: If you are no longer represented by counsel, the partial Premium Payment check will be sent to you directly. However, simply dismissing your attorney will not mean that the Premium Payment check will automatically be sent to you. If you dismiss your attorney now, and the attorney had done the work necessary to entitle you to a Premium Payment, then your attorney may file a lien on the Premium Payment. If that happens, you will be notified of the process to resolve the lien. This will delay your partial Premium Payment. If your attorney does not file a lien, then the payment will be sent directly to you.
12. Will the remaining partial Premium Payment be made? If so, when?
ANSWER: Yes, we believe that sufficient funds will be available to make the remaining Premium Payment. In fact, the CAC requested the Finance Committee to approve a 100% Premium Payment. They decided to approve 50% now, and to consider paying the remaining portion between now and the end of the Plan in 2019. We will continue to urge them to make the remaining Premium Payment as soon as possible.
13. I am an attorney and represent a number of claimants who received a partial Premium Payment. Do I need to keep my files open for these claimants any longer?
ANSWER: Yes, it is very likely that the remaining Premium Payment will be approved in the next several years. Please keep the address and contact information for your clients current to avoid any delays in issuing payments.
14. How can I update my address to make sure the partial Premium Payment reaches me?
ANSWER: To update your address, you can call, email, or send a letter to the Settlement Facility providing your full name, claim number, old address, and new address. Send all address updates to:
Email: info@sfdct.com
Call: 1-866-874-6099
Regular or Overnight mail: SF-DCT
P.O. Box 52429
Houston, TX 77052-2429
15. Can a surviving spouse or child / heir of a claimant receive the partial Premium Payment?
ANSWER: If a claimant has passed away, her estate can still receive the partial Premium Payment. The legal representative of the estate – such as the Executor/ Executrix – must contact the Settlement Facility in writing and provide documentation that he/she is the legal representative. For more information, contact the Settlement Facility directly to determine how you need to proceed.
16. Do I need to file anything to get the partial Premium Payment?
ANSWER: No. The Settlement Facility has identified claimants who have an approved Rupture and/or Disease claim. You do need to keep your contact information and address current with the Settlement Facility.
17. Can I file a claim for Increased Severity?
ANSWER: Yes, you can send in documentation showing that you are eligible for an Increased Severity claim as that is defined in the Plan. If your Disease claim was approved in Option 1 (such as ACTD), you can qualify for Increased Severity if your condition worsens such that you qualify for Disability Level A. There is a cap of $15 million on total payments available to all claimants in Option 1 for Increased Severity.
If your Disease claim was approved in Option 2, you can qualify for Increased Severity if your condition worsens to any other higher paying disease or disability level. There is no cap on the amount that can be paid to Increased Severity in Disease Option 2.
The CAC has posted detailed information about qualifying for Disease payments, including Disability A, on our website – www.tortcomm.org, under “Disease Claims.”
18. Are the partial premium payments subject to Medicare liens for medical treatment provided to the claimant subsequent to the settlement back in late 2002? Do attorneys for these claimants have any reporting requirement or withholding requirement for these payments.
ANSWER: First, a disclaimer: The CAC is prohibited from offering or rendering legal advice generally or specifically, so any response herein is for information only, based on our understanding of events, and any decision on the legal effect or requirements, such as reporting or withholding funds, is strictly the responsibility of the claimant's attorney and not the CAC or its members.
The intent of the Settlement Agreement with the U.S. Government was to free claimants and their attorneys from any concern over, and liability for, Medicare liens against benefits paid by the SF-DCT arising from Medicare payments to medical providers for treatment claimants received related to their covered implants, meaning implants that were eligible and approved by the SF-DCT for benefit payments, including Medicare payments already made or “…made in the future.” Settlement Agreement, page 1, paragraph B and page 3, paragraph 5. The Settlement Agreement covers Medicare “payments made (or to be made in the future) and medical services provided (or to be provided in the future) …” under the Medicare Acts. All these claims, as to payments received or to be received in the future from the SF for covered implants, are released as well as the released parties, which are defined as “…the Personal Injury Claimants…” and “…each of their respective attorneys, employees and officers, heirs, executors, estates, guardians or administrators.”
The Medicare settlement with the US Government does not cover “non-covered implants”, nor does it cover state Medicaid claims, or subrogation claims from those medical insurance companies not part of that separate group settlement made years ago.
19. Are Premium Payments available for Explant payments or Expedited Release payments?
ANSWER: No.
STATUS OF CLAIMS PROCESSING AND PAYMENTS
Settlement Facility has released information about the status of claims processing and payments through
JULY 31, 2014, The information is summarized below:
Through JULY 31, 2014, the SF-DCT has received 81,841 Proof of Manufacturer claim forms in Classes 5, 6.1 and 6.2 (Dow Corning Breast Implant Claims). Of this number, 66,708 or 82% have acceptable proof of at least one Dow Corning breast implant. Of the 66,708 Dow Corning breast implant claimants with acceptable proof of manufacturer, almost 33% (one-third) or 21,961 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) |
|
|
|
|
CLAIM CATEGORY |
NUMBER OF CLAIMS PAID THROUGH JULY 31, 2014 |
PERCENTAGE OF CLAIMS APPROVED CLASS 5 | CLASS 6 |
TOTAL $$ PAID IN CATEGORY THROUGH JULY 31, 2014 |
|
RUPTURE |
21,961 |
71% | 40% |
$ 422,585,523.94 |
|
EXPLANT |
29,906 |
99% | 96% |
$ 144,805,336.91 |
|
EXPLANT ASSISTANCE |
812 |
95% | 83% |
$ 3,010,544.30 |
|
INCREASED EXPLANT (6.2 ONLY) |
299 |
N/A | 92% |
$ 897,000.00 |
|
EXPEDITED RELEASE |
24,946 |
92% | 88% |
$ 45,846,925.39 |
|
DISEASE OPTION 1 |
28,667 |
83% | 69% |
$ 422,578,123.34 |
|
DISEASE OPTION 2 |
1,475 |
31% | 18% |
$ 189,142,998.75 |
|
TOTAL |
108,066 |
N/A |
$ 1,228,866,452.63 |
TOTAL CLAIMS PAYMENTS FROM EFFECTIVE DATE – PRESENT
|
7/31/2014 |
|
|
|
|
|
|
|
|
|
|
INCLUDES NOI PAYMENTS (DOES NOT INCLUDE STALE CHECKS) |
|
|
|
|
|
|
|||
|
|
RUPTURE |
EXPLANT |
INCREASED EXPLANT |
EXPLANT ASSISTANCE (EAP) |
EXPEDITED |
DISEASE |
MEDICAL CONDITIONS (IFBR, TMJ, IMPLANT FAILURE) |
OTHER PRODUCTS PREMIUM PAYMENT |
TOTAL |
|
CLASS 5 |
$426,720,547.19 |
$145,493,434.71 |
N/A |
$4,158,744.30 |
$42,032,741.54 |
$600,656,353.61 |
N/A |
N/A |
$1,219,061,821.35 |
|
CLASS 6.1 |
$14,037,750.51 |
$4,497,969.90 |
N/A |
$12,000.00 |
$3,119,043.85 |
$8,568,218.48 |
N/A |
N/A |
$30,234,982.74 |
|
CLASS 6.2 |
$3,640,000.00 |
$244,500.00 |
$1,233,000.00 |
$15,000.00 |
$154,000.00 |
$2,496,550.00 |
N/A |
N/A |
$7,783,050.00 |
|
CLASS 6.2 2 |
N/A |
N/A |
N/A |
N/A |
$118,600.00 |
N/A |
N/A |
N/A |
$118,600.00 |
|
CLASS 6.2 3 |
N/A |
N/A |
N/A |
N/A |
$516,000.00 |
N/A |
N/A |
N/A |
$516,000.00 |
|
CLASS 7 |
N/A |
N/A |
N/A |
N/A |
$22,880,366.79 |
$0.00 |
N/A |
N/A |
$22,880,366.79 |
|
CLASS 9 |
$130,000.00 |
N/A |
N/A |
N/A |
$1,762,145.10 |
N/A |
$2,866,500.00 |
$14,215,000.00 |
$18,973,645.10 |
|
CLASS 10.2 / 10.2 |
$6,000.00 |
N/A |
N/A |
N/A |
$155,850.00 |
N/A |
$219,625.00 |
$1,050,875.00 |
$1,432,350.00 |
|
TOTAL |
$444,534,297.70 |
$150,235,904.61 |
$1,233,000.00 |
$4,185,744.30 |
$70,738,747.28 |
$611,721,122.09 |
$3,086,125.00 |
$15,265,875.00 |
$1,301,000,815.98 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RUPTURE |
EXPLANT |
INCREASED EXPLANT |
EXPLANT ASSISTANCE (EAP) |
EXPEDITED |
DISEASE |
MEDICAL CONDITIONS (IFBR, TMJ, IMPLANT FAILURE) |
TOTAL |
|
|
CLASS 5 |
21,480 |
29,402 |
N/A |
839 |
21,236 |
28,720 |
N/A |
N/A |
101,677 |
|
CLASS 6.1 |
1,173 |
1,517 |
N/A |
4 |
2,609 |
807 |
N/A |
N/A |
6,110 |
|
CLASS 6.2 |
520 |
134 |
411 |
5 |
220 |
615 |
N/A |
N/A |
1,905 |
|
CLASS 6.2 2 |
N/A |
N/A |
N/A |
N/A |
100 |
N/A |
N/A |
N/A |
100 |
|
CLASS 6.2 3 |
N/A |
N/A |
N/A |
N/A |
860 |
N/A |
N/A |
N/A |
860 |
|
CLASS 7 |
N/A |
N/A |
N/A |
N/A |
13,909 |
0 |
N/A |
N/A |
13,909 |
|
CLASS 9 |
26 |
N/A |
N/A |
N/A |
1,763 |
N/A |
476 |
498 |
2,763 |
|
CLASS 10.2 / 10.2 |
2 |
N/A |
N/A |
N/A |
261 |
N/A |
64 |
64 |
391 |
|
TOTAL |
23,201 |
31,053 |
411 |
848 |
40,958 |
30,142 |
540 |
562 |
127,715 |
DEADLINE REMINDERS
Please mark your calendar with the following claim submission deadlines. Please note that 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.
|
Deadline Date |
Type of Deadline |
|
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.