A

MDL-926 Class Action will be closing on 12/15/10

B

What is Deadline in which to file a Disease Claim?

C

MDL-926 CLASS ACTION WILL BE CLOSING ON 12/15/10

The MDL-926 Class Action will be closing permanently on 12/15/10. If you received a Bristol, Baxter or 3M implant before June 1, 1993 and have not registered in the MDL-926 Class Action, it is still not too late to register. If you received a McGhan implant between 8/3/84 and 12/31/91 and have not registered in the MDL-926 Class Action, it also is not too late to register.

If you are not sure if you are registered, you should contact the Claims Board at (800)600-0311. Your social security number would be your Registration Number. In order to qualify for any benefits, a claimant must have acceptable proof of their implant brand.

If you find out that you are registered and do not remember if you have received any settlement money, you should ask the Claims Board if you received a $1,000 or $5,000 Advance Payment? If the Claims Board informs you that you previously received a $5,000 Advance Payment, then you are classified as a Current Claimant, and you have valuable rights that will be lost if your claim is not settled before 12/15/10.

If the Claims Board informs you that you previously received a $1,000 Advance Payment, then you are classified as an Other Registrant, and you also have valuable rights that will be lost if your claim is not settled before 12/15/10. The rights of Current Claimants, Other Registrants and Late Registrants will be discussed further in this update.

WHAT IS THE DEADLINE IN WHICH
TO FILE A DISEASE CLAIM?

At this point, no one knows when the deadline is in which to file a Disease Claim. On April 5, 2008, Federal District Judge U.W. Clemon had a meeting with the principal parties of the MDL-926 Class Action. Pursuant to my conversation with one of the representatives who attended this meeting, there was going to be a discussion as to setting a deadline in which a claimant could submit their final documents in support of their Disease Claim.

This is the deadline “before” the 12/15/10 deadline when the MDL-926 Class Action ends. When such a deadline is set and known, I will post this information on my web sites.

CLAIMANTS WHO HAVE AN APPROVED RUPTURE CLAIM, WHICH WILL DOUBLE THEIR DISEASE CLAIM SETTLEMENT UNDER THE FIXED AMOUNT BENEFIT SCHEDULE, WILL LOSE THIS BENEFIT IF THEIR DISEASE CLAIM IS NOT SETTLED PRIOR TO 12/15/10

When it comes to Rupture Claims, the MDL-926 Class Action is structured differently than the Dow Corning Class Action. In the Dow Corning Class Action, Rupture Benefits are a separate and distinct benefit, and can be received whether or not a claimant files a Disease Claim.

In the MDL-926 Class Action, a claimant who has an Approved Rupture Claim will only receive their Rupture Benefit when their Disease Claim is settled. The deadline to file a Rupture Claim in the MDL-926 Class Action was 12/16/96. However, if a claimant (a)  filed their Rupture Claim before 12/16/96 ; (b) has an Approved Rupture Claim; (c) has not settled their Disease Claim, it is still not too late to file and settle their Disease Claim.

Only Current Claimants are entitled to receive Rupture Benefits. A Current Claimant is a claimant, who under the terms of the Global Settlement, mailed to the Claims Office by 9/16/94 a signed Registration Form and mailed to the Claims Board by 10/17/94 a completed Current Disease Compensation Form with sufficient medical documents, so as to be classified by the Claims Office as a Current Claimant.

Current Claimants can only receive their Approved Rupture Benefits if their Disease Claim is settled under the Fixed Amount Benefit Schedule. An Approved Rupture Claim “DOUBLES” a Current Claimants Disease Claim. Under the Fixed Amount Benefit Schedule, a Level C settlement is $10,000.00. With an Approved Rupture Claim, the $10,000.00 Level C settlement becomes $25,000.00.

CLAIMANTS WHO HAVE RECEIVED ONLY $5,000 AND ALSO HAVE A DOW CORNING IMPLANT, CANNOT RECEIVE A SETTLEMENT FOR THEIR DISEASE CLAIM IN THE DOW CORNING CLASS ACTION, UNTIL THEIR DISEASE CLAIM IS SETTLED FIRST IN THE MDL-926 CLASS ACTION

Claimants who have had one or more Dow Corning implant, in addition to a Bristol, Baxter or 3M implant, may be eligible for benefits in the MDL-926 Class Action, but will have their Disease Claim benefits reduced by 50%.

In order to collect the remaining 50% in the Dow Corning Class Action, a claimant must “first” settle their Disease Claim in the MDL-926 Class Action. Once the Disease Claim is settled first in the MDL-926 Class Action, the claimant can now file their Disease Claim in the Dow Corning Class Action, assuming they are timely registered and have proof of their Dow Corning implant.

The claimant does not have to resubmit their medical records again when making a Disease Claim in the Dow Corning Class Action. The Disease Claim will be treated as a “MDL-926 Pass Through”, and the Dow Claims Board will automatically pay the remaining 50%.  If such a claimant does not settle their Disease Claim in the MDL-926 Class Action prior to the deadline of 12/15/10, they will lose 50% of their Disease Claim benefits.

CLAIMANTS WHO HAVE AN APPROVED RUPTURE CLAIM, AND ALSO A DOW CORNING IMPLANT, WILL ONLY RECEIVE 50% OF THEIR RUPTURE BENEFITS IN THE MDL-926 AND “WILL NOT” RECEIVE THE OTHER 50% IN THE DOW CORNING CLASS ACTION.

Due to what I would call a “glitch” in the formation of the MDL-926 Class Action, claimants who have an Approved Rupture claim in the MDL-926 Class Action and also received a Dow Corning implant, will only receive 50% of their Rupture Benefits in the MDL-926 Class Action, and “will not” receive the other 50% of their Rupture Benefit in the Dow Corning Class Action.

Let me give you an example. A claimant received a $5,000 Advance Payment in the MDL-926 Class Action, so she is classified as a Current Claimant. Current Claimants are the only claimants eligible to receive Rupture Benefits in the MDL-926 Class Action. This claimant also received a Dow Corning implant, so automatically her benefits in the MDL-926 Class Action will be reduced by 50%.

This claimant now settles her Disease Claim in the MDL-926 Class Action for Level B under the Fixed Amount Benefit Schedule. Normally a Level B settlement would be $20,000.00, but with an Approved Rupture claim, the settlement now becomes $50,000.

Because this claimant also received a Dow Corning implant, the MDL-926 reduces the entire award of $50,000.00, so the claimant will receive $25,000.00.

You would think that this claimant can now go to the Dow Corning Class Action and receive the other 50% of her settlement, which would be $25,000.00. The Dow Corning Claims Board will “ignore” the fact that you had an Approved Rupture claim in the MDL-926 Class Action, as they will solely focus on the fact that your claim was settled in the MDL-926 Class Action for $20,000.00. The Dow Claims Board will only pay this claimant 50% of a Level B settlement, which would be $10,000.00.

This claimant now receives $25,000.00 from the MDL-926 Class Action and $10,000.00 from the Dow Corning Class Action, making the settlement a total of $35,000.00. Where is the other $15,000.00 the claimant should have received to make her combined settlement $50,000.00?

It is Gone, Gone, Gone! The claimant’s Disease claim and Rupture claim were lumped together and reduced by 50%, and the claimant can only recover 50% of her Disease claim and not her Rupture claim. If this same client has a rupture of her Dow Corning Implant, she can receive 100% of her Rupture claim in the Dow Corning Class Action, assuming she filed her Rupture Claim by the appropriate deadline.

WHAT ARE THE RIGHTS OF CURRENT CLAIMANTS, OTHER REGISTRANTS AND LATE REGISTRANTS?

As noted above, a Current Claimant is a claimant, who under the terms of the Global Settlement, mailed to the Claims Office by 9/16/94 a signed Registration Form and mailed to the Claims Board by 10/17/94 a completed Current Disease Compensation Form with sufficient medical documents, so as to be classified by the Claims Office as a Current Claimant.

Current Claimants have the most rights of all claimants in the MDL-926 Class Action. They are eligible to receive (a) a $5,000.00 Advance Payment (which is deducted from their Disease Claim settlement), (b) a $3,000.00 Explant Benefit if their Bristol, Baxter or 3M implant was removed “after” 4/1/94 and the claimant did not receive “silicone” replacement implants, (c) eligible to receive Rupture Benefits if their Rupture claim was filed by 12/16/06, (d) the right to “either” make a Disease Claim under the Fixed Amount Benefit Schedule (easier-to-qualify for and lower-paying, with settlement range from $10,000.00 to $50,000.00) “or” the Long Term Benefit Schedule (harder-to-qualify for and higher-paying, with settlement range from $75,000.00 to $250,000.00)

If a Current Claimant has an Approved Rupture Claim and makes a Disease Claim under the Long Term Benefit Schedule, they “will not” be paid their Rupture Benefits. In the Dow Corning Class Action, a claimant can be paid their Rupture Benefits and also make and settle their Disease Claim under the Long Term Benefit Schedule (called Option Two in the Dow Corning Class Action).

Other Registrants are those claimants who registered with the Claims Office by 3/1/95 or previously opted out of the Global Class Action and withdrew their exclusion and registered with the Claims Office by 12/16/96.

Other Registrants are eligible to receive (a) a $1,000.00 Advance Payment (which is deducted from their Disease Claim settlement), (b) a $3,000 Explant Benefit if their Bristol, Baxter or 3M implant was removed “after” 4/1/94 and the claimant did not receive “silicone” replacement implants, (c) the right to “only” make a Disease Claim under the Long Term Benefit Schedule (harder-to-qualify for and higher-paying, with settlement range from $75,000 to $250,000.00). Other Registrants are not eligible for Rupture Benefits nor are they eligible to make a Disease Claim under the Fixed Amount Benefit Schedule.

Late Registrants are all other eligible claimants who are neither Current Claimants nor Other Registrants. There is no deadline for Late Registrants to register at the present time, other than the deadline for the MDL-926 Class Action to end on 12/15/10.

Late Registrants are only eligible to make a Disease Claim under the Long Term Benefit Schedule. Late Registrants are not eligible to receive Advance Payments, Explant Benefits or Rupture Benefits. Late Registrants are not eligible to make a Disease Claim under the Fixed Amount Benefit Schedule.

When the RSP was being formulated, certain safeguards were put in place that would prevent a claimant from obtaining a “double recovery”, if they had a Bristol, Baxter or 3M implant “and” a Dow Corning implant. The rule that was implemented basically stated that such a claimant would have their disease claim reduced by 50% by reason of having a Dow Corning implant.

But what happens if a claimant’s disease claim in the MDL is reduced by 50% because they “allegedly” had a Dow Corning implant, but their Proof of Manufacturer claim in the Dow Corning Class Action is denied? Can the claimant go back to the MDL Claims Board and ask for the remaining 50%?

The ways it stands right now, the MDL Claims Board will take the position that they cannot change the rules, and will not pay the remaining 50%, even though they are aware that the claimant’s Proof of Manufacturer claim was denied by the Dow Corning Claims Board.

To prevent a situation such as this, the CAC and OPLC worked to create a statement that a claimant could send to the MDL that relinquished their claim in the Dow Coring Class Action. This statement was approved by Federal District Judge Denise Page Hood in April of 2003.

In approximately 2004, the CAC asked Federal District Judge U.W. Clemon to substitute the Dow Claims Board’s definition of what is an acceptable Dow Corning implant for the definition of what is an acceptable Dow Corning implant listed in Exhibit G of the Revised Settlement Program. This would have the effect of requiring the MDL Claims Board to make a 100% award in the situation listed above.

The CAC was also under the assumption this issue was resolved, especially when the statement was approved by Federal District Judge Hood, who is the presiding Judge over the Dow Corning Class Action. Recently, the MDL Claims Administrator denied an Appeal filed by a claimant whose MDL Claim was reduced by 50% while her Dow Claim was denied. The claimant filed an Appeal to the Court, and Judge Frank Andrews also denied the Appeal.