ONE MORE THING YOU CAN DO
Forward this information by preparing an email as shown in the box below, and send it to YOUR ATTORNEY, the Office of the Plaintiffs’ Liaison Counsel, and the Claimants’ Advisory Committee (CAC) that you are making a:
REQUEST FOR A MOTION TO PRESERVE OUR RIGHTS DUE TO PENDING MOTIONS REGARDING CLAIMS ISSUES
TO RULE ON THREE PENDING MOTIONS
To: (insert YOUR attorney's address here) , info@tortcomm.org, contact@oplc.org
The Claimants' Advisory Committee, and Office of Plaintiffs' Liaison Counsel
Subject:
REQUEST FOR A MOTION TO PRESERVE OUR RIGHTS
DUE TO PENDING MOTIONS REGARDING CLAIMS ISSUES
___________________________________________________________________________________
Dear Attorneys:
I am writing you to plead for the Claimants Advisory Committee to please file a Motion in an effort to compel Judge Hood to rule on several PENDING MOTIONS, one of which has not been ruled on for TWO YEARS. Plan procedures indicate that Judge Hood is expected to rule within 30 days regarding such claims interpretation and procedure issues:
1) Option 1, Level A Disability
[First motion submitted by CAC 1-1/2 years ago. Submissions completed June 29, 2006]
2) Option 2, Tolling of the "24 month / 5 year" timeframe in which medical evidence is required
[Judge Hood has not ruled on this for 2 years since last submissions to her]
3) Tissue Expanders [Judge Hood has not ruled on this for 2 years either]
First (only as a thought), the lack of a motion for two years on one of these issues, while the judge knows claims are being processed as Dow Corning wishes, could be interpreted to mean, in effect, that Judge Hood has ruled by not ruling. Technically, the lack of a ruling could be something to appeal because it did not occur within 30 days … one of them for so long, not for two years....
But, we claimants, and some attorneys as well, believe there is a better way to ASK the Judge to Rule now. We propose that the Claimants' Advisory Committee submit a Motion to Judge Hood:
This motion would, of course, bring up the issue of how much time has elapsed on both motions and ask for an immediate ruling. But, particularly, this motion would include an option if the judge determines that she will not immediately rule on both matters, that she would make an order to, at least, provide that all claims, which are affected by these motions shall be held in abeyance/suspended as long as the claimant wishes to wait for the ruling regarding her desired disease category.
This motion would also include a request that the judge allowreconsideration on all claims, which were processed adversely in these two categories.
We would not want to offend Judge Hood, but we believe that, after so much time has elapsed beyond the 30 day provision for her to rule, that her lack of a ruling is, in effect, a ruling because she is aware that claims are being processed as Dow Corning wishes. If Judge Hood does not rule, even on this motion, then it seems right that Appeals would be filed.
Will you please refer to the following web pages in order to understand what I am asking you for:
www.BreastImplantAwareness.org/judgehood5.htm for more background information.
www.BreastImplantAwareness.org/judgehood2.htm -- Please read this letter regarding DISABILITY LEVEL A for some high-impact points made from claimants’ perspectives. Please HEAR US. After all, this is why two judges overseeing this implant issue have required that claimants are included on the various plaintiffs’ committees. Although we have sent the LETTER as a PETITION, these points have not, officially, been made to Judge Hood by attorneys. We hope you will manage to include some of these points while preparing a motion for a ruling, or include them in any other occasion that may arise in the legal process over this.
ATTORNEYS, please, we believe THERE IS SOMETHING YOU CAN DO, besides waiting any longer, for all the reasons described.
We claimants are counting on you to take action and speak to the Claimants Advisory Committee on our behalf.
Thank you
(sign your name) |
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BACKGROUND INFORMATION___________________
THE FOLLOWING INFORMATION ARE EXCERPTS TAKEN FROM THE NEWSLETTERS AND WEBSITE OF THE CLAIMANTS ADVISORY COMMITTEE REGARDING THESE PENDING MOTIONS
NOTE: After the newsletter dated January 5, 2005 (1-1/2 years ago), CAC does not mention again to us the status of the Disease Option 2 Tolling 24-months/5year, when Judge Hood was supposed to rule within 30 days of the September 9, 2004 hearing.
PER CAC ELECTRONIC NEWSLETTER – July 7, 2006 there is an update of Pending Motions, including this one about DISABILITY LEVELS –
5. STATUS OF DISABILITY A MOTIONS
On June 9, 2006, the Claims Administrator issued a Memorandum to the parties, at their request, detailing the history of the Disability A claims processing by the MDL and SF-DCT. The Memorandum confirmed that 99% of all Current Disease claims in the Revised Settlement Program had their Disability A claims processed under the standard of "vocation or self-care." The CAC filed the Memorandum with the Court in advance of oral argument on June 20, 2006, and Dow Corning filed a Response and Objection asking the Court to disregard the Memorandum from the Claims Administrator. Despite all evidence to the contrary including the plain language used in the definition itself, Dow Corning asserts that the standard for Disability A should be "vocation and self-care."
Following oral argument, the Court took the matter under advisement. The CAC filed a Reply brief on June 29, 2006 responding to Dow Corning' Objection that the Claims Administrator's report should not be considered. A copy of the Reply brief (which has a good summary of the issue) is available on the CAC website ( www.tortcomm.org ) under "Pending Motions." [However, as of August 21, 2006, the briefs are not posted at the website]
Pending Motions can be seen at http://www.tortcomm.org/pendingmotions.shtml
CAC Motion regarding Tolling of 24 Month/5 Year Requirement for Disease Option 2 claims
MORE EXCERPTS FROM CAC NEWSLETTERS –
NEWSLETTER July 1, 2004 – Announcement of Motion Submitted
7. Pending Plan Interpretations. There are two Plan interpretations which have been presented to the Claims Administrator for a decision. They are:
- Whether Dow Corning tissue expanders implanted in the breast are eligible as Class 5, 6.1 or 6.2 Breast Implant Claimants or whether they are considered not-Covered Other Products in Class 9, 10.1 or 10.2. The CAC believes that they should be considered as Breast Implants and eligible for compensation. Dow Corning has objected to this proposed interpretation;
- Whether the 24 month /5 year period requirement for Disease Option 2 claims is tolled during the pendency of the bankruptcy (May 15, 1995 to June 1, 2004) or whether the tolling only applies to the "5 year" requirement. The CAC believes that the tolling applies to the 24 month/5 year period. Dow Corning has objected to this proposed interpretation.
NEWSLETTER July 13, 2004 – Claims Administrator will not decide, so CAC must now file a motion with Judge Hood by July 19 -à
5. Tissue Expander and Tolling Plan Interpretations Update. As reported in the July 1, 2004 e-newsletter, two Plan interpretation disputes - whether tissue expanders are breast implants and the applicability of the tolling language in Disease Option 2 claims -- were briefed and argued to the Claims Administrator at a hearing on June 22, 2004. On June 28, the Claims Administrator issued a statement that "she does not intend to issue a decision" on either of these matters. Accordingly, the CAC must now file a motion with Judge Hood by July 19 for a determination . We intend to file a motion on both issues. We are also working with the Debtor's Representatives to resolve this issue as quickly as possible so that these claims will not be on hold any longer.
Newsletter July 27, 2004 -- The Settlement Facility will keep "REVIEWING" the Disease Option 2 claims even though there is NO DECISION FROM HOOD (but they'll NOT REVIEW Tissue Expanders until Hood Rules.
9. Tissue Expander and Tolling Plan Interpretations Update. The Claimants' Advisory Committee and Dow Corning both filed cross motions with the District Court on July 19, 2004 on the pending Plan interpretation disputes involving tissue expanders and the tolling language in Disease Option 2. You may read a copy of the motions on the CAC website. We are preparing responses to Dow Corning's motions which are due August 9, 2004 . Until these issues are resolved, the Settlement Facility is not processing tissue expander claims. They have advised us, however, that they are reviewing Disease Option 2 claims.
Newsletter August 17, 2004 indicated September 2004 Hearing --- CAC filed response to Dow Corning
- Tissue Expander and Tolling Plan Interpretation Update. The CAC filed responses to Dow Corning's motions regarding whether tissue expanders implanted in the breast are eligible as breast implants and whether the tolling language in Disease Option 2 applies to the "24 month/5 year" criteria. The responses are available on the CAC website under "Other Downloads." The Court has set a hearing for September 9th on both motions.
Newsletter September 21, 2004 – Hearing was held Sept. 9, Judge Hood should rule in 30 days from the date of the Hearing according to Plan Procedures.
- Update on Pending Plan Interpretation Issues: Tissue Expander Eligibility and Tolling of "24 month/5 year" time frame for Disease Option 2 Claims. Oral argument for the two Plan interpretation disputes was held in Detroit on September 9th before U.S. District Court Judge Denise Page Hood. Under the Plan interpretation procedures, rulings on both motions are expected within 30 days of oral argument. For more information about what these Plan interpretation disputes involve we urge you to read the motions that have been filed. They are available on the CAC website under "Other Downloads."
Newsletter October 29, 2004 –
- Tissue Expanders and Tolling Plan Interpretation Disputes
These Plan interpretation disputes have been briefed and argued to the Court; they are pending with the Court for a determination. As soon as we receive information about the Court's decision, we will post it on the CAC website and include it in the CAC newsletter. (You can read a copy of the briefs submitted by the CAC on the CAC website under "Other Downloads.")
Newsletter December 14, 2004 –
9. UPDATES ON PENDING MATTERS
- Tissue Expanders and Tolling Plan Interpretation Disputes
These Plan interpretation disputes remain pending with the Court. As soon as we receive an order from the court, we will post it on the CAC website and include it in the next CAC newsletter. (You can read a copy of the briefs submitted by the CAC on the CAC website under "Other Downloads.")
Newsletter January 5, 2005 –
3. MOTIONS FILED WITH THE DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
- Tissue Expanders and Tolling - these motions remain pending with the District Court.
