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

(A)		Class 7- Should I accept the $3,000 settlement offer?
(B)		Class 7- I received a letter saying I am not eligible because I did not file a Benefit Schedule Option Form in the MDL-926 Class Action
(C)		Waiting time for Claims Processing and Payments
(D)		EXTENSION OF THE JANUARY 17, 2007 CURE DEADLINE
(E)		Claimants in the MDL-926 Class Action who have been denied benefits because they signed a Release before 1994
(F)		Denial of Rupture claims in Dow Class Action

(A)

CLASS 7- SHOULD I ACCEPT THE $3,000 SETTLEMENT OFFER?

The Settlement Facility-Dow Corning Trust (SF-DCT) has extended to all eligible Class 7 claimants who have had received Mentor, Cox-Uphoff or Bioplasty breast implants, a chance to settle their claim early.  A check in the amount of $3,000.00 was mailed to all eligible Class 7 claimants with the settlement offer from the SF-DCT.

Please note that this offer of settlement is good until 03/31/2007.  If you want to reject this settlement offer, you must return the check before 03/31/2007 in order to make an effective rejection of this offer. 

As the letter from the SF-DCT states, there have been over 54,000 claims filed in Class 7.  The SF-DCT has calculated that based upon this number of claims that it could take “up to three years to review and process these claims.”  The Class 7 Fund is a fixed fund of $57.5 million and out of that fixed fund will come out the costs of the SF-DCT to process these 54,000 claims. 

I would estimate that approximately 50% of these claims are Expedited settlement claimants who will receive $600.00, leaving approximately 25,000+ disease claims to be processed.  I have been informed by the SF-DCT that based upon information provided to them by the MDL-926 Claims Board, that approximately 40% of the 54,000 claims that have been filed will not be eligible for payment for one reason or another.  Also, the Class 7 fund is currently over $66,000,000.

While the whole process and understanding the statistics and economics of this capped fund is complicated and convoluted, the most important thing at this point that you need to consider is if you do not accept this offer and you wait two to three years before your disease claim is reviewed, are you willing to take the risk that funds will be there to pay your claim if it is approved?  I have underlined the word “approved” for a very important reason, in that there is no guarantee that when your Disease claim is reviewed that it will be found to be acceptable.

At the present time 95% of all Level A claims under Disease Option One have been found to be deficient upon an initial review.  Many Level A claims which are rejected are then re-categorized at Level B.  Most Level B claims that have been filed have been accepted but there have been many that have been found deficient upon initial review.  Most Level C claims that were submitted were found to be acceptable, but there were some that were also found to be deficient.

In most cases, curing the deficient claim involves having the claimant see a Qualified Medical Doctor for a new medical report that will cure the deficiencies noted by the SF-DCT.  The cost to see a Qualified Medical Doctor varies from state to state. If you have an attorney, and the attorney advances this cost, this amount would be ultimately be deducted from your settlement.

The way Class 7 is structured is that claimants can receive “up to 40% of what a Class 5 claimant can receive in the SF-DCT.”  Please note that when it states that claimants can receive “up to 40%”, that there is no guarantee that a claimant will receive 40%.  In fact, a claimant’s settlement could be substantially less depending on how many claimants will be fighting for the remaining money left of the $57.5 million after the $3,000.00 and $600.00 earlier settlers have taken their money.

If your disease claim is ultimately approved at Level A, the most you could receive if the claim was paid at the maximum of 40% is $20,000.00. If you have a very solid Level A claim, then it may be to your advantage to not accept the $3,000 offer. If your claim is ultimately approved at Level B, the most you could receive if the claim was paid at the maximum of 40% is $8,000.00.  You have to ask yourself, do you want to wait 3 years for a maximum of $5,000 more dollars? If your disease claim is ultimately approved at Level C, the most you could receive if the claim was paid at the maximum of 40% is $4,000.00. In such an event, it is probably better to accept the $3,000 settlement offer now instead of waiting 3 more years to receive “possibly” $1,000 more, and maybe even less.

At this point you must make a decision as to what is in your best interest.  Is it in your best interest to receive a $3,000.00 payment that is a sure thing?  Or, are you willing to wait several more years, fight any potential deficiencies in your claim and hope that there will be enough money left to pay your claim? 

I can relay an experience I had several years ago, while representing McGhan claimants in the MDL-926 Class Action Settlement.  The parent company of McGhan, Inamed, did not fulfill their financial responsibility to the funding of the MDL-926 Class Action.  The other three co-defendants (Bristol, Baxter and 3M) contributed extra money and the Claims Board paid the McGhan claims at 80% and did not pay any Advance Payment, Explant or Rupture benefits to McGhan claimants.

Many of my clients’ claims were settled at Level A which was supposed to be a $50,000.00 settlement, and the client received $40,000.00 and was owed $10,000.00.  Other clients who settled for a Level B, which were supposed to be $20,000.00, received a $16,000.00 settlement, while Level C, which were supposed to be $10,000.00, received a $8,000 settlement. 

Inamed then formed their own limited class action which was funded with approximately $33 million, which was supposed to pay for the 20% the McGhan claimants did not receive, and was also supposed to pay money to Cox-Uphoff claimants who received silicone gel manufactured by Inamed.

Approximately 40,000 claimants’ claims were filed, and the end result was that the Inamed Class Action paid each claimant $725.00 regardless of what was owed to them.  I hope that this does not occur to the Category 7 Fund, but it is a real possibility that it could happen and this is something that you should seriously think about when you make your decision on whether to accept this $3,000.00 settlement or not.

I cannot tell you whether or not to accept the $3,000 settlement offer. I can only provide you with as much background information as possible, so you can make a decision that is best suited to your individual situation.

(B)

Class 7- I received a letter saying I am not eligible because I did not file a Benefit Schedule Option Form in the MDL-926 Class Action

If you received this letter, you most likely received an implant manufactured by Bristol or Baxter. Dow Corning supplied the silicone gel for these implants from 1976 to 1991. Your primary rights are in the MDL-926 Class Action as either an Other Registrant if you received a $1,000 Advance Payment or Late Registrant if you did not receive an Advance Payment.

Other Registrants and Late Registrants are not entitled to rupture benefits and cannot make a disease claim under the lower paying, easier to qualify for Fixed Amount Benefit Schedule (Settlement Range-$10,000 to $50,000). However, they can make a disease claim under the higher paying, harder to qualify for, Long Term Benefit Schedule, which has a settlement range from $75,000 to $250,000.

Because Dow Corning also provided the silicone gel for these implants, a claimant is "eligible" to make a claim under Class 7 in the Dow Class Action, although there is no guarantee that the claimant would actually receive a settlement. Class 7 is a very small fund of $57.5 million dollars, with 54,000 claimants filing claims. Any settlement money a claimant receives in the MDL Class Action will be deducted from any potential settlement they may receive in the Dow Class Action. Class 7 settlements are going to be very small, most likely well under $10,000.

As noted above, your primary rights are in the MDL-926 Class Action. However, if a claimant wanted to make a claim in the Dow Corning Class Action, in order to qualify for a claim under Class 7, they would have to "waive their rights" in the MDL-926 Class Action (mainly because they do not qualify for one of the more serious diseases listed under the Long Term Benefit Schedule). To do this, they would have had to file a "Marshal" form, and this "Marshal" form had to be filed with the Dow Claims Board no later than June 1, 2006.

If you did not file your "Marshal" form by June 1, 2006, then you did not fulfill the Marshaling requirements under Class 7, and you cannot proceed with your claim in the Dow Corning Class Action. You can proceed with your claim in the MDL-926 Class Action, only under the Long Term Benefit Schedule.

If you did file a Marshal form with the Dow Claims Board by June 1, 2006, then you need to respond to the letter you received from the Dow Corning Claims Administrator by the deadline date listed on the letter, and send him a copy of the Marshal form. If you do not, then you will waive your rights.  I know this sounds confusing, but I did not make the rules.

(C)

WAITING TIME FOR CLAIMS PROCESSING AND PAYMENTS

Presently, the SF-DCT is evaluating Disease Claims that were filed in June of 2005. If you file your Disease Claim now, the wait is 12 to 18 months. If you receive a Deficiency Notice on your Disease Claim and file a Request for Review, the approximate wait time is at least 9 months.

(D)

EXTENSION OF THE JANUARY 17, 2007 CURE DEADLINE

For Explant Claims in Classes 5, 6.1 and 6.2, where claimants received a Notification of Status letter from the SF-DCT stating their Explant claim was deficient with a cure deadline on or before March 18, 2007, shall receive a new cure deadline of March 19, 2007. This is a final cure deadline. If you do not cure your Explant deficiency on or by March 19, 2007, your Explant claim will be permanently denied.

For Rupture Claims in Classes 5, 6.1 and 6.2, new cure deadlines will be set at different stages so there will not be one cure deadline that applies to all deficient Rupture claims. The SF-DCT will notify claimants in each of the following categories and will send a notice of the applicable deadline to each individual claimant that is affected. Rupture claims will be divided into the following categories:

Category A.  These are claimants who received a Notification of Status letter from the SF-DCT stating that either their rupture claim was deficient because they did not submit the operative or pathology report, or they did not have their Dow Corning implants removed AND whose cure deadline has or will run on or before March 18, 2007.  All Category A claimants shall have their cure deadline reset to March 19, 2007. If you do not cure your deficiency on or before March 18, 2007 your Rupture claim will be permanently denied.

Category B. All Rupture claimants who are not Category A claimants and who have a cure deadline of either January 17, 2007 or a date on or before May 6, 2007 are Category B claimants. Such claimants will receive notice of a new and final cure deadline according to the procedures set forth below. The Claims Administrator will identify groups of claimant to establish a final cure deadline for Category B claimants. Category B claimants shall receive at least 90 days notice of the final cure deadline. The first group of claimants with Category B will be identified by February 1, 2007, and the final cure deadline for this first group will be May 7, 2007. Thereafter, on a monthly basis, the Claims Administrator will send notices to the next group of claimants and identify a final cure deadline that is at least 90 days after the date of the notice until all Category B claimants received a notification.

For Disease Claims in Classes 5, 6.1 and 6.2, claimants with a disease claim whose cure deadline has or will run or before June 17, 2007 shall have a new cure deadline of June 18, 2007. The Claims Administrator and the parties shall continue to work to finalizing a document suitable for distribution to claimants concerning the disease and disability criteria guidelines. After distribution of such documents, the Claims Administrator will establish a schedule for final cure deadlines for disease claims in Classes 5, 6.1 and 6.2. The Claims Administrator shall notify all disease claimants in Classes 5, 6.1 and 6.2 of the applicable final cure deadline.

For Claims in Classes 9, 10.1 and 10.2 (Covered Other Products Fund), whose cure deadline has or will run prior to February 19, 2007 will have their cure deadline re-set to February 20, 2007. This is a final extension of cure deadline for claimants in Classes 9, 10.1 and 10.2. Claimants in this group who do not submit the required documentation on or by February 20, 2007 will have their claim permanently denied.

(E)

Claimants in the MDL-926 Class Action who have been denied benefits because they signed a Release before 1994

Any claimants in the MDL-926 Class Action who received Bristol, Baxter or 3M implants, and are being denied benefits because they signed a release before 1994 in order to have the Implant Manufacturer pay for the costs to have their implants removed, should contact my office ASAP.

Prior the Effective Date of the Revised Settlement Program, many claimants were required to sign “RELEASES” that released the Implant Manufacturer from any and all future liability. Many of these Releases were obtained unfairly and the claimant was not aware that by signing this Release, they would not be able to participate in the MDL-926 Class Action.

The Release these claimants were required to sign, should have only been limited to claims arising out of the “costs of the corrective surgery” and should not have been intended to deprive a claimant of their rights to receive Rupture Benefits and the right to make a Disease Claim under the Fixed Amount Benefit Schedule (settlement range -$10,000 to $50,000) or the Long Term Benefit Schedule (settlement range-$75,000 to $250,000).

In most cases the amount that was paid was only a few thousand dollars, and almost all of the time, the entire amount paid for the “RELEASE” went to the Explanting surgeon. The Claimant received no money or other compensation for her injuries. In almost all cases, the claimant would not have signed the RELEASE if she had understood that she would be barred from additional compensation in the MDL-926 Class Action..

In the Dow Corning Class Action, it has been agreed by all parties that any Releases that Dow Corning had claimants sign before the Effective Date of the Dow Plan, pertaining to the removal of Dow Corning implants, “would not” bar a claimant from participating in the Dow Corning Class Action. A Class 5 claimant who is eligible for the $5,000 Explant Benefit, and has previously signed a “release” to have her Dow Corning implants removed before the Effective date of the Dow Plan, will have the amount of the settlement payment deducted from her $5,000 Explant Benefit.

If you have received a letter from the MDL Claims Administrator denying your claim because you signed one of the RELEASES described above, please contact my office.

(F)

DENIAL OF RUPTURE CLAIMS IN THE DOW CLASS ACTION

I still receive a large number of complaints from claimants stating that their Rupture claims have been unfairly denied. Such claimants have submitted their rupture claims to the SF-DCT which were denied, with the SF-DCT asserting that the medical records did not document a rupture. These claimants would then file to participate in the Reorganized Dow Corning Individual Review Process (IRP), and their claims most times would be denied again. Request for Reviews, Error and Corrections, Appeals to the Claims Administrator and finally an Appeal to the Appellate Court would also be denied.

Why are so many rupture claims being denied? First, the formulators of the Dow Plan have created the set criterion for what is and what is not acceptable proof of a rupture. This criterion is listed in Annex A of the Settlement Facility and Fund Distribution. This printed information has been available for several years. On paper, the criterion for what is acceptable rupture proof listed in Annex A does not look that bad. However, once this criterion is utilized in the claims review process, the end result ends up being very bad many times!

The Claims Board feels duty bound to stay within the strict confines of the interpretation of what is acceptable proof of a rupture as stated in Annex A. The Claims Administrator does have some leeway to interpret the rules, but as stated in my prior updates, it is my opinion that his authority in interpreting and swaying from the rules are limited, especially if Dow Corning is looking over his shoulder. 

However, Rupture claims are being denied, even when the Explant reports report loose silicone outside of the implant that has to be “sponged up”, or one of the implants is reported to be missing a noticeable amount of silicone. The standard letter of denial a claimant will receive from the SF-DCT will state “Rupture, is defined as the failure of the elastomer envelope surrounding a silicone gel implant to contain the gel resulting in contact of the gel with the body, not solely the result of “gel bleed”, but due to a tear or other opening in the envelope after implantation and prior to the explant procedure.”

What does this exactly mean?  This means unless the surgeon or pathologist states in the operative or pathology report that he or she sees a tear or other opening in the envelope of the implant, or at least uses the magic word “ruptured”, the rupture claim will be denied. Is this fair? What happens when the surgeon is able to remove the whole implant while it is encased in the “human tissue capsule”? In such an event, the surgeon then continues on with the surgery and is not able to confirm “visual confirmation of a breach in the elastomer envelope” if the implant is still encased inside the human tissue capsule.

Unless the pathologist is going to carefully cut open the human tissue capsule and examine the implants closely for a tear or other opening, the pathology report many times will say that there is no gross evidence of implant rupture. For awhile, the SF-DCT was placing more importance on the Pathology Report than the Explant Report when deciding if an implant was ruptured. The Pathology Report being the “Trump” card has now changed within the evaluation guidelines of the SFDCT. Or has it?

Pathologists are not really trained to analyze prosthetic devices. They are trained instead to evaluate human tissue samples. If the pathologist states the implant has no evidence of a gross rupture, is he or she really examining the implant closely to see if there is a small hole or defect in the implant shell which would account for why silicone had to be “sponged up” or one implant missing a considerable amount of silicone volume? 

When a pathologist states that he or she sees no gross rupture of the implant, but examines the human tissue and finds chronic inflammation with foreign body giant cell reaction, what does this mean? This means that silicone has come into contact with the tissue. This is the one of the worst fear of every woman who has her implants removed, that the silicone has leaked out of her implant and has come into contact with her body.  Yet the Rupture Claim will still be denied, even when all the evidence points to the logical conclusion that this amount of loose silicone could not have come out of the implant unless their was a leak or rupture. Common sense would dictate that “gel bleed”, which is really microscopic beads of silicone gel, could not account for silicone gel that has to be “sponged up.”

The end result is Rupture Claims are being denied, when the implant is really ruptured, as the Explant Report or Pathology Report does not fulfill the rupture criteria set forth in Annex A. Although you may not agree with me, the Claims Board and the Claims Administrator are not the party at fault here, although I personally do not agree with many of their rupture denial rulings. Unless the criterion is amended in Annex A, or Judge Denise Page Hood makes a ruling that would change the criterion of what is an acceptable rupture, decisions such as the ones described above, will not change.

Now that the Rupture Deadline has passed, in a few years from now, no one is going to remember this issue anymore, except those claimants whose implants were truly ruptured with silicone coming into contact with their tissue, yet they were denied the benefit they rightfully deserved.