On June 10, 2009, the Court entered an Order ruling in favor of the CAC on the pending motion interpreting the “Disability A” dispute. Previously, the SF-DCT interpretation of a Level A claim (complete disability) would be the claimant would have to be disabled in the area of “vocation” AND “self care. The CAC pursued a motion before Judge Hood, taking the position that a claimant who filed a Level A claim (complete disability) stating that a claimant must document their Level A disability in the area of “vocation” OR “self care”, which is a much easier standard in which to prevail on a Level A claim.

On June 19, 2009, Dow Corning filed Notices of Appeal for the two Court Orders that were entered on June 10, 2009 with regard to the Disability A (and/or) dispute and the ruling that tissue expanders are breast implants. You can read a copy of both Notices on the CAC website at www.tortcomm.org under the heading "Appeals."

In addition, Dow Corning filed a Motion to Stay implementation of both orders claiming that implementation of the orders would "significantly impact" Dow Corning and the Trust and would cause irreparable harm because "every dollar paid by the Trust to claimants that may ultimately prove ineligible, should Dow Corning prevail on appeal, is a dollar out of Dow Corning's pocket."

In short, Dow Corning has asked the court to prevent any claimants who qualify for Level A disability based solely on vocation or based solely on self-care, as well as claimants with Dow Corning tissue expanders, from qualifying for payment until the Court of Appeals for the Sixth Circuit rules on the appeals.

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

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 liability 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.

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.
 

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.

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