BAD NEWS RESULTS FROM THE 6TH CIRCUIT

MDL-926 CLASS ACTION IS NOW CLOSED

 

 

The MDL-926 Class Action closed on December 15, 2010. Many claimants have informed me they have filed a disease claim with the MDL-926 Claims Board before the deadline. The Claims Board sent a Notification of Status letter before the deadline, which stated that the claim has a deficiency and was not approved. These claimants wanted to know can they now file supplemental documents to cure the deficiencies?  The answer is no. However, you could contact the Claims Board at (800)600-0311 to see if they would make an exception on your claim. It does not hurt to ask.

 

Pass Through: If a claimant received a Dow Corning implant and one of the other implant is covered under the MDL-926 Class Action, and assuming they are timely registered, once their disease claim is approved by the MDL-926 Claims Board, the claimant would receive 50% of their settlement from the Dow Corning Class Action. They then can fill out a Disease Claim Form, without sending in any documents, to the Dow Claims Board (SF-DCT), and their disease claim will not be reviewed again. They will automatically receive the other 50% of their settlement from the Dow Corning Class Action.

 

However, if the disease claim in the MDL-926 Class Action is not settled after December 15, 2010, the claimant will not receive a settlement, and can only file a disease claim with the Dow Corning Class Action. If the disease claim is approved in the Dow Corning Class Action, the claimant will only receive 50% of their settlement.

BAD NEWS RESULTS FROM THE 6TH CIRCUIT

 

From the time the Dow Corning Class Action started, there were two issues in dispute. Issue Number One was whether "tissue expanders" were "breast implants". Dow Corning and the CAC filed motions with the Federal District Court. After hearing oral arguments and reviewing the documents filed by both sides, the Federal District Court ruled that tissue expander are breast implants, and would be entitled to benefits in the Dow Corning Class Action. Dow Corning appealed this ruling to the 6th Circuit, who now issued an order vacating the District Court's ruling.

 

The 6th Circuit court ruled that the meaning of breast implants was ambiguous and because there was no other evidence that would shed light on this issue, the court did not agree with the District Court's interpretation. The 6th Circuit court ordered the District Court to consider the "relevant extrinsic evidence". The Court further stated that once the District Court considers the relevant extrinsic evidence, the Court expects to defer to its decision.

 

Issue Number Two: There was also a dispute as to which was the proper meaning of Disability Level A. The CAC took the position that Disability Level A required the claimant to be 100% disabled in "vocation" OR "self care". Dow Corning had taken the position the Disability Level A required the claimant to be 100% disabled in both "vocation" AND "self care.'

 

The CAC and Dow Corning filed motions with the District Court. The District Court ruled that Disablity Level A required the claimant to be 100% disabled in "vocation" OR "self care." Dow Corning then appealed the District Court's ruling. The 6th Circuit Court ruled that Dow Corning's reading of Cambridge Grammar of the English Language 1298 was correct, and reversed the District Court's decision. The 6th Circuit ruled that the standard to apply for a Disability A claim is that a claimant must be 100% disabled in both "vocation" AND "self care".

This means that it will be much harder for the claimant to receive a Level A disease claims award, unless they are 100% disabled in both vocation and self care.  To make matters more difficult for a claimant to be approved at Disability Level A, if their medical records that the claimant filed with the Claims Board to support a Level A claim, and if these records contains any symptoms that are not covered under the Dow Plan and contribute to the Level A disability, the Claims Board will not approve the Level A claim.

 

I feel bad for all the claimants that are going to be affected by this ruling. All the timely filed claimants who had tissue expanders (which carried many of the same risks of breast implants) are not going to qualify for any benefits, after waiting all these years. I also feel bad for claimants who are truly 100% disabled (and also fulfilled the strict standard of disability for State and Federal Disability Acts), but will not qualify for a Level A settlement. The standard for Level A is so strict, that a claimant has to be almost a complete "Invalid" in order to qualify for a Level A settlement.