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

IMPORTANT DEADLINE INFORMATION ON NOI SETTLEMENTS 

As reported in the last update, a settlement has been reached which allows NOI Claimants to have their claims for Explant, Rupture and Expedited Release processed and if, eligible, paid. If a NOI claimant has already filed an Explant, Rupture or Expedited Release, they do not need to do anything to accept the NOI Settlement.

The Claims Board has sent out an “Acceptance of NOI Settlement” form to all eligible NOI claimants. You can also download a copy of this form on the Claimant Advisory Committee’s web site. If you want the Claims Board to expedite the review and payment of your claim, you will need to complete the “Acceptance of NOI Settlement” form and mail it to the SF-DCT. When the SF-DCT receives the form, they will review your claim, and if approved, will issue payment in accordance with the Consent Order and the Plan.

Please note that your acceptance of the NOI Settlement is final and cannot be changed. You will be deemed to have accepted the NOI Settlement if you do not reject the NOI Settlement by the deadline, which will be listed below. The sooner a claimant returns the Acceptance Form, the sooner their claim will be placed in line for a review for Explant and/or Rupture (assuming that the claimant has already filed their Explant and/or Rupture claim with the SF-DCT.

Important Deadline information for Explant or Rupture claims. For Explant claim, the deadline to submit your Explant Claim Forms to the SF-DCT is October 20, 2008. This means that you must have your Dow Corning breast implants removed and your Explant Claim form sent to the SF-DCT no later than October 20, 2008 to qualify for this benefit.

Please note that this is a “shorter” deadline than the Explant deadline for non-NOI Claimants, which is June 2, 2014. The Explant Assistance Program is also available to assist claimants.

Although the Rupture deadline expired on June 1, 2006 for all non-NOI Claimants, under the terms of the NOI Settlement, the rupture deadline for NOI Claimants to submit their rupture claim to the SF-DCT is October 20, 2008. You must have your Dow Corning implant removed and your claim forms for Explant and Rupture filed by the same deadline of October 20, 2008, to be eligible for these benefits. Please note that the extension of the rupture eligibility requirement and filing deadline does NOT apply to non-NOI Claimants. 

For those NOI claimants who intend on having the Explant Surgery within the next year and intend on filing a Rupture claim if their implants are ruptured, are still required to file a Pathology Report (if one was prepared) and an Affidavit from the Surgeon stating that he or she did not rupture the implant upon removal, with the SF-DCT.

There are still many Plastic Surgeons who refuse to participate in the Explant Assistance Program and claimants are having a hard time finding Plastic Surgeons who are willing to participate in the Explant Assistance Program. Please remember that the Explant Assistance Program will only pay $5,000 for your implant removal, as long as you do not receive Silicone Replacement implants. However, if a claimant intends to have saline replacement surgery, the estimate cost for the surgery is from $6,800 to $9,000. The claimant is expected to be responsible for the additional costs in receiving new implants.

WHEN PREMIUM PAYMENTS WILL BE PAID

As reported in my 8/10/07 update, 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.

The Finance Committee recently posted a Memorandum from the Independent Assessor regarding the second quarter of 2007 on its web site. A copy of this Memorandum is also available on the Claimant Advisory Committee Web site (www.tortcomm.org) The Memorandum states in part that: “The Independent Assessor of the Settlement Facility-Dow Corning Trust (SF-DCT) reviewed the liabilities and assets of the facility as of the end of the second quarter of 2007 and estimated that the facility would remain solvent under each of a range of liability and asset assumptions tested. Until patterns of filing and claims acceptance become more certain, use of the current estimates for the purpose of determining whether premium payments can be made is premature.”

This means that Premium Payments are most likely not going to be paid until “such time” as Judge Hood renders a ruling on the motion pending before her regarding the proper definition and criteria for Level A disability under Disease Option One. If the Court rules in favor of the Claimant Advisory Committee and the new definition of a Level A disability reads that a claimant can perform few or none of her normal activities of vocation OR self care, the Claims Board will most likely be required to re-review all Level A claims that were denied on this self care issue, even those claims where the claimant decided to accept the offer of Level B disability when their Level A claim was denied.

This could result in a huge influx and payment of Level A claims. This could in turn affect when and if Premium Payments will be made.

CLASS 7-SILICONE GEL MATERIAL CLAIMS

11,000 claimants have been approved for either an Expedited Release Payment of $600.00 or a Disease Cash-Out Offer of $3,000.00. Total payments to date from the Class 7 Fund are $15.5 million. The total fund is $57.5 million NPV.

The Settlement Facility is still reviewing Proof of Manufacturer Claims in Class 7 and is expected to complete all Proof of Manufacturer reviews within the next year. As Proof of Manufacturer claims are approved, the Settlement Facility will send either the Expedited Release Payment to claimants who selected this option or a Disease Cash-Out Offer of $3,000 to claimants who selected the disease review.

The SF-DCT has stated that 54,535 Class 7 claims have been filed. From this amount, 29,301 claims were determined to be ineligible. This would mean that there are approximately 25,233 claims that are eligible.  The SF-DCT has also stated that 9,160 claims have been paid, which would indicate that there are approximately 16,073 outstanding claims that have not been resolved. From this amount, I am sure there will be quite a bit more claims that will be determined to be ineligible.

Presently, there is $42,060,180 left in the Class 7 Fund ($15,439,820 paid out) with 16,073 outstanding claims. For those claimants who are wondering whether to accept the $3,000 cash-out offer or pursue their disease claims, you should do the math. I believe you will see that if you pursue your disease claim, the likelihood of receiving $3,000 or more on your disease claim is going to be slim. I wish and hope I am wrong on this point.