Breaking News 08/07 - Dow Corning Litigation - Breast Lawyers

BREAKING NEWS UPDATE 08/10/07

The areas that will be covered in this newest update are as follows:

A		New Cure deadlines for Disease and Rupture claims;
B		Conditional Claimants may be entitled to Explant and Rupture Benefits
C		When Premium Payments will be paid;
D		Breast Implants linked to higher suicide risks
E		Deficiencies in Disease Claims Deficiencies in Disease Claims

(A)

New Cure deadlines for Disease and Rupture claims;

On June 15, 2007, the District Court entered an Agreed Order Resetting Disease Cure Deadlines. A copy of the Order is being posted on the CAC website and should be available for viewing or download ASAP (www.tortcomm.org) click on "Court Orders."

As it pertains to Polymyositis (PM) and Dermatomyositis (DM) claims, claimants who have received a Notification of Status letter from the SF-DCT stating the SF-DCT reviewed their claim for PM and/or DM and that it was deficient AND whose cure deadline has or will run on or BEFORE April 1, 2008, will receive a new cure deadline of April 1, 2008.

As it pertains to Primary Sjogren's Syndrome (PSS), Mixed Connective Tissue Disease (MCTD), and Overlap Syndrome (OS) claims, claimants who received a Notification of Status letter from the SF-DCT stating that the SF-DCT reviewed their claim for PSS, MCTD and/or OS and it was deficient AND whose cure deadline has or will run on or BEFORE May 1, 2008, will receive a new cure deadline of May 2, 2008 for the PSS, MCTD and/or OS claim.

As it pertains to Systemic Sclerosis (SS) and Systemic Lupus Erythematosis (SLE) claims, claimants who received a Notification of Status letter from the SF-DCT stating that the SF-DCT reviewed their claim for SS and/or SLE and it was deficient AND whose cure deadline has or will run on or BEFORE June 3, 2008, will receive a new cure deadline of June 4, 2008 for their SS and/or SLE claim.

As it pertains to General Connective Tissue Symptoms (GCTS), Atypical Neurological Disease Syndrome (ANDS) and Atypical Connective Tissue Disease (ACTD/NAC/ARS) claims, claimants who received a Notification of Status letter from the SF-DCT stating that the SF-DCT reviewed their claim for GCTS, ANDS and/or ACTD and it was deficient AND whose cure deadline has or will run on or BEFORE July 1, 2008, will receive a new cure deadline of July 2, 2008 for their GCTS, ANDS and/or ACTD claim.

(B)

Conditional Claimants may be entitled to Explant and Rupture Benefits

The following proposed settlement applies only to "Notice of Intent" ("Conditional") claimants. A "Notice of Intent" claimant is someone who filed a Notice of Intent (NOI) or Proof of Claim (POC) form in the Dow Corning bankruptcy case that was received AFTER November 30, 1999 (the date the bankruptcy court confirmed or approved the Joint Plan of Reorganization of Dow Corning) and BEFORE August 30, 2004 (the deadline to file a Notice of Intent form

In 2004 – several months prior to the Effective Date of June 1, 2004 – Dow Corning filed a motion with the U.S. District Court in Detroit disputing that certain "Notice of Intent" claimants were eligible for Explant, Rupture, Disease and Expedited Release claims. After a series of lengthy negotiations, Dow Corning agreed in 2005 that the Plan allowed Notice of Intent claimants to recover for Disease claims (and only disease claims) and, since that time, these claims have and continue to be reviewed and paid.

The CAC continued its efforts to allow Notice of Intent claimants to be eligible for Explant, Rupture and Expedited Release. The CAC is pleased to announce that they reached an agreement with Dow Corning that will allow Notice of Intent claimants who accepted the settlement to recover these benefits. The CAC and Dow Corning filed a joint request that the Court enter a "Consent Order" that would resolve Dow Corning's objections. A copy of the proposed Consent Order is available on the CAC website at www.tortcomm.org under the tab of "NOI Claims." The proposed Consent Order is still subject to approval by the Court, and the settlement will not be implemented unless the Court approves it.

There are many reasons why the CAC recommends that Notice of Intent claimants accept this settlement. It allows them to recover for Explant (removal of a Dow Corning breast implant) and Rupture, and also allows them to possibly receive a Premium Payment if these payments are approved for other non-NOI Claimants and if sufficient funds are available. It also allows NOI Claimants to have their claim processed and paid now without any further delay caused by the NOI Motions and continued litigation of the motions.

There are some settlement risks that should be considered. Under the settlement, the maximum amount available to pay all unmatched NOI Claimants for Explant and Rupture claims is $30 million. Based on the data the CAC has seen and the analyses that they have done, they believe this amount is sufficient to pay all unmatched NOI claims for Explant and Rupture in full. However, if it is not sufficient, then Explant and Rupture claims by NOI Claimants may be reduced pro rata just like claims can be reduced pro rata for non-NOI Claimants if there is a funding shortfall. This means there is a possibility, however slight, such a claimant would not be paid in full for Explant and/or Rupture claims under the settlement.

RUPTURE DEADLINES RESET FOR NOI CLAIMANTS. NOI Claimants (and only NOI Claimants) will also be allowed to submit a claim for Rupture anytime within the year following receipt of the NOI settlement package. There is not an exact deadline for this now, but it will likely be sometime in August 2008. As soon as CAC has an exact deadline, they will send out another newsletter. The deadline will also be included in the package that NOI Claimants will be sent. Under the settlement, NOI Claimants can have their Dow Corning breast implants removed now and, if they are ruptured, you can still be eligible for a Rupture payment as long as the supporting proof meets the Plan criteria and is received before the one year deadline.

It is important to point out that this extension of the Rupture deadline does NOT apply to timely filed claimants. The CAC has a separate motion pending with the Court to extend the Rupture deadline for certain groups of timely filed claimants, and they are continuing to negotiate with Dow Corning to try and resolve that motion. Dow Corning agreed to extend the Rupture deadline for NOI Claimants only as part of the disputed NOI motion and because these claimants had been informed in the past that they were ineligible to qualify for Explant, Explant Assistance and Rupture. As a result, many NOI claimants did not submit a claim for these benefits by June 1, 2006. Again, unless you are a Notice of Intent claimant, the one year extension for Rupture does not apply to you. If you have any question about whether you are a Notice of Intent deadline, call the Settlement Facility at 1-866-874-6099.

EXPLANT DEADLINE SHORTENED FOR NOI CLAIMANTS. NOI Claimants (and only NOI Claimants) will have a shortened deadline to apply for Explant (implant removal). Unlike the deadline in the Plan, NOI Claimants will have only one year following receipt of the NOI settlement package to have their Dow Corning breast implant removed and to submit a claim for Explant. The Explant Assistance Program is available to assist claimants who cannot afford to pay for the surgery themselves. The deadline for timely filed claimants to submit an Explant claim is June 2, 2014, but for NOI claimants it will only be one year from the date noted in the NOI settlement package.

The CAC recommends that NOI Claimants accept the settlement. If, however, an NOI Claimant wishes to reject the settlement, then she must litigate the NOI Motions on her own because the CAC will support the settlement and will not assist you in opposing the NOI Motions. It is the CAC’s position that continuing to litigate the NOI Motions will result in significant additional delays and carries with it the risks that are inherent in any litigated matter, including the possibility that the Court will deny your eligibility for an Explant or Rupture claim. The CAC urges NOI Claimants to consider this carefully and, if represented by counsel, to consult with that attorney.

(C)

When Premium Payments will be paid;

Many claimants have asked about when "Premium Payments" may be made. Under the Dow Plan (Section 7.03 (a) of the SFA) states that the Finance Committee must start the process for paying Premium Payments by filing a recommendation and motion with the District Court requesting authorization.

To assist the Finance Committee, the Plan provides that an "Independent Assessor" shall be appointed to oversee and make recommendations concerning the development of projected funding requirements and the assessment of the availability or adequacy of assets. The Finance Committee's recommendation and motion must be accompanied by a detailed accounting of the status of claim payments and distributions under both the Settlement and Litigation Facilities.

Thereafter, the parties (Debtor's Representatives and CAC) have an opportunity to be heard on the matter. Section 7.03(a) further provides that before Premium Payments may be allowed, the court must determine that all Allowed and allowable First Priority Claims and all Allowed and allowable Litigation Payments have been paid or that adequate provision has been made to assure such payment (along with administrative costs) based on the available assets.

At this time, neither the Independent Assessor nor the Finance Committee has made any decisions regarding the payment of Premium Payments. A decision on this issue is not expected this year. Please note that the CAC cannot request that the court order Premium Payments to be made, as only the Finance Committee has this authority under the Plan.

(D)

Breast Implants linked to higher suicide risks

As noted in my January 12, 2007 Commentary, I have had many of my client’s pass away before they received their Settlement Awards, and many others who committed suicide. Subsequent to my Commentary, I have had another two clients who have committed suicide.

Although I cannot say with any reasonable certainty that these clients committed suicide because of the problems with their breast implants, the families of these deceased clients certainty feel that their loved one’s breast implants were a main factor in their decision to take their own lives.

Several clients that I have spoken to prior to the time they committed suicide told me they were simply tired of being sick all the time and sick and tired of the doctors not knowing what was wrong with them. They felt the doctors did not believe them when they said that they were healthy before they received their implants and since they received their implants their health has never been the same.

This has affected me deeply as I felt helpless so I would always listen and give these clients the one thing they needed and deserved, which was to simply listen to their grievances and let them know it is not their fault for being sick and they did not do anything wrong. At the time these women received their implants, their doctors told them the implants were safe (they were approved by the FDA) and would last a lifetime.

I am attaching below a recent article that states women who have breast implants are nearly three times as likely to commit suicide as other women.

The study was recently published in the Annals of Plastic Surgery that reinforces other studies that have shown women who have breast implants have higher suicide risks. Loren Lipworth of the Vanderbilt University Medical Center in Tennessee and colleagues followed up on 3,527 Swedish women who had cosmetic breast implant surgery between 1965 and 1993. They looked at death certificates to analyze causes of death among women with breast implants.

Only 24 of the women had committed suicide after an average of 19 years, but this worked out to three times the risk compared to the average population, they reported. Doctors who perform cosmetic breast surgery may want to monitor patients closely or screen them for suicide risk, Lipworth said. “The increased risk of suicide was not apparent until 10 years after implantation,” the researchers wrote.

Lipworth said she believes that some women who get implants may have psychiatric problems to start with, perhaps linked with lower self esteem or body image disorders. “I think we don’t even know how big of a problem it is because we cannot even pinpoint what proportion of women have psychiatric disorders, “ Lipworth said in a telephone interview.

"There could be a whole lot of different disorders. "Women with breast implants also had a tripled risk of death from alcohol and drug use. "Thus, at least 38 deaths (22 percent of all deaths) in this implant cohort were associated with suicide, psychological disorders and/or drug and alcohol abuse/dependence," the researchers wrote.

NO RISE IN CANCER DEATH RISK

They found no increase in the risk of death from cancer, including breast cancer. Women with implants were more likely to die from lung cancer and respiratory diseases, such as emphysema, but this is probably because they were more likely to smoke, the researchers said.

Last year, Canadian scientists also found a higher risk of suicide among women who got breast implants, although they had lower rates of other diseases, including cancer.

In November, the U.S. Food and Drug Administration okayed the sale of silicone breast implants for the first time in 14 years, after years of hearings on their safety.

The FDA said independent research over the past decade has found no convincing evidence that breast implants were associated with connective tissue diseases or cancer.

While silicone implants were banned, women could only use saline-filled breast implants. Plastic surgeons say women prefer the silicone ones, and Lipworth said most of the women in her study had silicone implants.

In 2006, 383,886 U.S. women had breast augmentation, according to the American Society for Aesthetic Plastic Surgery. It was the second-most common surgical cosmetic procedure, after liposuction.

(E)

Deficiencies in Disease Claims Deficiencies in Disease Claims

The motion the CAC filed with the Court regarding the SF-DCT interpretation of the Level A disability criteria was heard and argued last year before Judge Denise Page Hood. The motion was pending before the Court. Dow Corning subsequently filed a motion to strike certain submissions and arguments of the CAC and plaintiff’s counsel regarding the Disability “A” motion. A hearing on the motion to strike was set for July 26, 2007. If any new developments arise, I will include this information on my next update.

The cure deadline for disease claims has been extended as noted above. If your disease claim has deficiencies that you do not understand and you do not know how to cure the deficiencies, please feel free to contact our office. If we are able to assist you with your claim, we will do so. If you do not feel like fighting the Claims Board anymore and want proper legal representation, please feel free to contact our office.