Opinion
Case No. 00-CV-00005-DT (Settlement Facility Matters).
July 29, 2005
Deborah E. Greenspan, Esq., Dickstein Shapire Morin Oshinsky LLP, Washington, DC, On Behalf of Debtor's Representatives.
Dianna Pendleton-Dominguez, Esq., Law Office of Dianna Pendleton, St. Marys, Ohio, On Behalf of Claimants' Advisory Committee.
STIPULATION AND AGREED ORDER REGARDING PRE-1971 BREAST IMPLANT IDENTIFICATION PROTOCOL
On February 9, 2005, the Claimants' Advisory Committee ("CAC") filed a Motion to Amend Annex A To The Settlement Facility and Fund Distribution Agreement To Adopt An Additional Proof of Manufacturer Protocol ("the Motion of the CAC"). Dow Corning filed a Response and the motion was heard by the Court on April 7, 2005. Subsequent to the hearing, the Claimants' Advisory Committee and Dow Corning ("the parties") continued their discussions to resolve the dispute and have now reached resolution of the issues raised in the Motion. The parties agree that:
1. Pursuant to Q5-18 of the Class 5 Claimant Information Guide, claimants who received breast implants before 1971 may reliably establish what kind of implant they received by presenting to the Settlement Facility information that satisfies the "Criteria for Pre-1971 Implants" set forth below.
2. This is not a Plan modification. It creates no precedent for other situations, and only applies to the discrete issue of Proof of Manufacturer for pre-1971 breast implants.
3. This resolves the Motion of CAC to Amend Annex A to the Settlement Facility and Fund Distribution Agreement to Adopt an Additional Proof of Manufacturer Protocol, filed on February 9, 2005, and the motion filed by the Houssiere, Durant Houssiere LLP law firm — Motion to Deem Pre-1971 Silicone Gel Breast Implants [as] Dow ("the Houssiere Motion"), filed on January 5, 2005.
4. Through the Individual Review Process, Dow Corning will continue to review any implants that do not satisfy the criteria set forth below at the Settlement Facility, and will make good-faith efforts to approve claims that provide any other reliable indications that implants are Dow Corning.
5. The CAC and the Debtor's Representative will be available to assist the Settlement Facility in implementing this Stipulation and Agreed Order.
Criteria For Pre-1971 Implants
1. Date of implantation either (a) from November 1963 through December 1970, inclusive, or (b) from January 1962 through October 1963 (but only, for this time period, if the implanting doctor was Dr. Thomas Cronin, Dr. Frank Gerow, Dr. Robert Balme, Dr. C.M. Bovard, Dr. T. Ray Broadbent, Dr. E.R. Dykes, Dr. Bromley Freeman, Dr. F.A. Garcia, Dr. Sanford Glanz, Dr. J.W. Hubly, Dr. Hugh Johnson, Dr. James Johnson, Dr. Mark Lemmon, Dr. John R. Lewis, Jr., Dr. Verner Lindgren, Dr. Maurey Parkes, Dr. Gilbert Snyder, Dr. Melvin Spira, Dr. James Sullivan, Dr. William Taylor, or Dr. R.W. Vincent).
— AND —
2. Records deemed acceptable under the Plan that:
(a) state that the claimant was implanted with silicone breast implant(s) that
(1) were made by Dow Corning, or
(2) are described as Cronin, or
(3) contain silicone or contain gel, or
(4) are described as having Dacron, a Dacron patch, or Posterior patch
— AND —
(b) do not mention contradictory information such as:
(1) a competitor's model (e.g., Cox-Uphoff, Simaplast)
(2) polyurethane foam or foam
(3) inflatable or saline, or
(4) silicone sheeting, elastomer or envelope with a non-silicone filler.
WHEREFORE, the Court hereby approves the Stipulation and Agreed Order and denies the Motion of the CAC and the Houssiere Motion as moot. The Claims Administrator shall use his discretion to decide how to implement the terms of the Stipulation and Agreed Order to re-review Proof of Manufacturer submissions that were previously denied but which may be affected by the terms of this Stipulation and Agreed Order. Claimants may also request re-review of their Proof of Manufacturer status at any time.