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PERSONAL COMMENTARY - 5/10/06
It has been over one year since my last commentary, and a lot has happened in that one year in the Dow Corning Class Action. We have a new Claims Administrator, a major legal battle will be coming to a head before Judge Hood as it pertains to the denial of Level A claims, some deadlines have been extended once again, claims are being denied, claims are being paid, and claimants who have been waiting for their settlements over 13 years have been dying.
2005 was a strange year for the Dow Class Action. Many good things happened that made sense, and also many bad things happened that made no sense. The Dow Corning Class Action is the only realistic forum for Dow Corning claimants to be compensated for her damages that have been caused by her breast implants. However, the Class Action is far from perfect and the way the Plan has been put together by its formulators, is sometimes so out of touch with the realities of what is happening to women who are suffering from the effects of having silicone breast implants. I would like to discuss some of the good and bad things about the Dow Corning Class Action.
GOOD THING. The Claims Board has somewhat loosened the definition of what is an acceptable rupture claim, when they have agreed in certain instances that when a surgeon states the implants have a “leakage”, that this is an acceptable proof of a rupture. Previously, the Claims Board was basically denying any rupture claim when the word “leakage” was used. Our office took issue with the way the rupture claims were being denied when the word leakage was being used, especially when the surgeon had to use sponges to soak up the free silicone, and the human tissues were embedded with silicone.
The Claimant Advisory Committee has actively been working with the SFDCT in relation to this matter. The CAC has asserted that, “to have leakage, there must be a hole or other opening form which the fluid leaks out. Because the Plan’s definition is similar, according to the CAC, “leakage” in Rupture Claims should now be accepted.” We have now received notices from the Claims Board where they have reversed their previous position, and have now accepted the rupture claim.
BAD THING. Prior to June 1, 2004 (Effective Date of the Dow Plan), the Claims Board would send to Dow Corning any post 1971 Cronin implant claim, for their approval. The rules of the Dow Plan state that Cronin implants past 1971 are not acceptable. This rule makes no sense, since there never was any other breast implant manufacturer, other than Dow Corning, that manufactured the implant referred to as “Cronin.” The Cronin implant was developed by Dr. Thomas Cronin, who worked for Dow Corning. This implant had a very distinctive feature that other implants did not have, and that was the “Dacron patches.” Dow Corning knows that there has never been any other company that has manufactured the Cronin implant, the Claims Administrator knows this, the CAC knows this, and almost all surgeons know this. The vast majority of the post 1971 Cronin claims we submitted to the Claims Board (who submitted them directly to Dow Corning) prior to June 1, 2004, were accepted.
Since June 1, 2004, the vast majority of all post 1971 Cronin implant claims have been denied by Dow Corning. The Claims Board is aware of this, but has taken the position that there is nothing they can do about this because these are the rules that were agreed upon by the formulators of the Dow Plan, and only Dow Corning can agree to change the rules of when a post 1971 Cronin implant will be accepted. The CAC is also aware that Dow Corning has suddenly changed their position of accepting post 1971 Cronin implants after the Effective Date of the Dow Plan. As noted above, this rule makes no sense and is unfair, especially to the women who received Cronin (Dow Corning) implants after 1971. Even though their surgery report documents they received a Cronin implant, which were manufactured by Dow Corning with the money that were paid for the implants, going to Dow Corning, their claim is still being denied.
GOOD THING. The Claims Administrator, David Austern, in my opinion is an honorable person who tries to do the right thing. I believe Mr. Austern is aware of most of the unfair aspects of the Dow Plan and will try to right a wrong when it is within his authority to do so. I believe there are a lot of unfair aspects of the Dow Plan that he is unable to change, but I do feel that he is doing his best.
BAD THING. According to the Claims Board, 95 % of all Level A claims have been denied. The Claims Board has taken the position that the proper criteria for a Level A disability is where a claimant can perform few or none of her normal activities of vocation AND self care. The Claimant Advisory Committee has taken the position that the proper criteria for a Level A disability are where a claimant can perform few or none of her normal activities of vocation OR self care.
A Motion is pending before Judge Hood on this issue and oral arguments have been re-set for June 20, 2006 according to the CAC. Judge Hood will eventually make a decision that will either agree with the Claims Board’s definition of Level A disability or the CAC’s definition of Level A disability. At the present time, the criterion for Level A disability is where a claimant cannot be working and cannot take care of her house and is able to perform few or none of her normal self care activities. After I have reviewed several Level A rejected claims, it appears to me that for a Level A claim to be approved, the claimant has to be an invalid who is under the constant care or supervision of someone else. This is not a realistic definition of a Level A disability, since so many women, who are completely disabled because of their symptoms, have no choice but to work, or they would be out in the streets. Many of these women do not qualify for government assistance and do not have spouses that provide support. Many of these women simply cannot afford to pay for a caregiver, but according to the Claims Board, they do not qualify for a Level A disability. This definition of Level A disability is unrealistic of what a true disability is in the real world.
GOOD THING. The Claims Administrator has indicated that if the claimant accepts the Level B award and the Court rejects the SFDCT’s current “self care” interpretation, there is no risk in accepting the Level B award. The SFDCT has stated that in such an event, they would pay the difference between the Level A and Level B claim. This would account for an additional $30,000. There is no guarantee that a claimant will receive the additional $30,000 if they are deficient in an area outside of self care.
BAD THING. It is very difficult to qualify for a settlement under Disease Option Two. According to the information provided by the CAC, 9,478 Option One claims have been approved, while only 237 Option Two claims have been approved. Our experience with the Claims Board on Option Two claims has not been pleasant, and it is my opinion that the Claims Personnel has taken the interpretation of the criteria for Option Two claims to an extreme. To give you an example, a symptom under the diseases GCTS is called Sicca, which is dry eyes. In order to qualify for this symptom, a claimant must undergo an objective test called a “Schirmer’s Test”. If the test results are positive, the doctor must provide certain exclusionary statements, otherwise the symptom will not be credited. We have encountered situations where the claimant went to the doctor to take a test for dry eyes (Schirmer’s Test), the claimant was administered the test and the test results were positive and the doctor provided the exclusionary statements, yet the symptom was denied. The reason? The doctor did not put in his report the patient had complaints of dry eyes. This symptom was denied for this reason even though the test results were positive. Is this realistic?
There is another symptom under GCTS that is called “Polyarthritis”. This symptom has to do with joint swelling. The criterion says the claimant has to have tenderness and swelling in three or more joints in two different joint groups. We have had this symptom denied for claimants when the doctor stated the claimant had during the examination “swelling and pain” for three or more joints in two different joint groups. The reason the claim was denied? Because the word “tender” was not used. Our position is that if a claimant has joints that are painful and swollen, how could they not be “tender?” Can you imagine squeezing hard the swollen joint of such a claimant, and hear them yelp “Ouch, this really hurts, but it is not tender? The reasons for these denials are not realistic in my opinion, and when I have to explain to my clients (the ones who do have dry eyes and swollen and painful joints) that their disease claim was denied, they are shocked beyond belief when I have to explain the reasons. This is when they start to give up hope, which brings me to my conclusion.
VERY BAD THING I have been representing many of my Dow Corning clients for over 12 years. Can you imagine having a case being unsettled for that long? During this time period, I have gotten to know some of my clients pretty well. I have spoken to many clients that have gotten better when their implants were removed, and many more that did not get better. The health of many of my clients has deteriorated these last 12 years, and they do not know if this is a result of receiving breast implants or the natural progression of aging. What they do know is that they were in good health “before” they received their implants, and their health was never the same “after” they received their implants.
The one common complaint from many of my clients was during the time they became sick with these strange unaccounted for symptoms, the medical doctors they saw, did not feel that their implants were a cause of the symptoms, and in many cases, did not want to treat them once they found out they were registered as claimants in the breast implant class action. For the patient, this feeling of not being “validated” by their doctor, only reinforced their negative beliefs towards the medical establishment and big businesses, in that their surgeons and Dow Corning and the FDA did not warn them beforehand about the true dangers of breast implants and silicone. You cannot imagine how many of my clients truly believe in a “conspiracy theory”.
During these 12 years, I have listened to my clients concerns and complaints about their failing health. I have listened when they have had major health scares and went to the hospital. I have listened when their loved ones have passed away. I have basically listened, because there was no one else willing to listen. These clients needed to be “validated”. They were not making up their symptoms and pain. They did not feel good about themselves and felt let down by the people they trusted the most.
I have had many clients die during these last 12 years, and now recently I have had several of my clients end their suffering by committing suicide. This has really affected me on a personal level because I have talked to these clients and knew of their suffering, but was helpless to do anything about it, other than what I could do through the Class Action. While I realize it is not realistic for a claimant to blame their whole life’s problems on Dow Corning, the claimant who is suffering does not think or feel that way. Although we are now starting to settle a good majority of our cases, I dread to have to inform a claimant that their claim was denied and there will be a further delay before they receiving their “just compensation.”
To all my clients and other Dow Corning claimants throughout the United States (and the rest of the world), please try to hang in there a bit longer, since you have waited for 12 years already. Although no one can feel your pain and know what you are going through, and while no amount of Dow Corning settlement money will bring back the years of good health you may have lost, at least a settlement will mean that someone has accepted some corporate responsibility (whether they wanted to or not) when you deposit your settlement check into the bank. While you may not get the type of validation one would receive when a jury of your peers renders a verdict against a big multi billon dollar corporation, this settlement is a validation. And when you think about it, who doesn’t need to feel validated these days?
PAST COMMENTARY BY STEPHEN FRAILICH
In 1997, The Mayo Clinic found one in four women with implants will need surgery within five years for ruptures or other disfiguring complications.
What effect does silicone have on the enzyme system, cell membranes, DNA damage, interference with repair mechanisms and the effect on energy production?
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