Opinion
Civil Action No. 00-CV-00001, Master Docket (Litigation Facility Matters).
February 18, 2005
CASE MANAGEMENT ORDER NO. 3
This Court previously entered Case Management Orders ("CMO") No. 1 and CMO No. 2 pursuant to the Amended Joint Plan of Reorganization (the "Plan"). This CMO No. 3, agreed to by the parties, is entered to clarify the applicability of CMO No. 1 and CMO No. 2 to Children Direct Claims.
Children Direct Claims are defined under the Plan as "Personal Injury Claims asserted by or on behalf of children of Breast Implant Users, Other Products Users and Non-Dow Corning Breast Implant Users alleging that such Claims arose from exposure to the mother's Breast Implants, Other Product, Non-Dow Corning Breast Implants, or the component parts thereof." (Plan, Art. 1.26) Children Direct Claims are exempt from the provision of CMO No. 2 that requires Opt-Out Claimants to commence a Claim by completing, executing under oath and serving the DCC Litigation Facility with a Notice of Intent to Litigate/Claimant Questionnaire on or before February 28, 2005. (CMO No. 2, Para. 1) Children Direct Claims may later be required to complete such Questionnaires on a different timetable to be set by the Court.
Children Direct Claims continue to be subject to the provisions of CMO No. 1, including Paragraph 5(f) and Paragraph 5(a) as it is modified below. Paragraph 5(f) of CMO No. 1 provides:
Each Opt-Out Claimant who is a minor on the Effective Date shall have until the earlier of (i) the date that is one hundred and eighty days after such claimant's eighteenth birthday or (ii) the fifteenth anniversary of the Effective Date to initiate an action in the manner set forth in subparagraph 5(a) of this order. Each Opt-Out Claimant who has not yet manifested injury on the Effective Date shall have until the earlier of (x) the date that is one hundred and eighty days after such claimant's illness or symptoms (of sufficient severity to support a disease payment) have become manifest or (y) the fifteenth anniversary of the Effective Date to initiate an action in the manner set forth in subparagraph 5(a) of this order.
Paragraph 5(a) of CMO No. 1 provides:
Opt-Out Claimants who already have actions pending shall have individual case files established or amended in this Court, as provided in subparagraph (b) below. Subject to subparagraph (f) below, Opt-Out Claimants who do not have a previous action pending against Dow Corning or its Shareholders and affiliates shall commence an action against the Facility by filing a complaint within 60 days of opting out. The answer (or other responsive pleading) by the Facility shall be filed at the time and pursuant to the procedures described in paragraph 6(b) hereof.
The terms of Paragraph 5(a) are hereby modified insofar as they apply to Children Direct Claims to eliminate any requirement that such claimant must "opt out" of the Settlement Program by returning a completed Participation Form or by any means other than by bringing a timely lawsuit in accordance with this Order. Accordingly, the provisions of Paragraph 5(a) of CMO No. 1 are modified for Children Direct Claimants as follows: any such claimants who do not have a previous action pending against Dow Corning or its Shareholders and affiliates shall commence an action against the DCC Litigation Facility by filing a complaint within the period allowed by the applicable statute of limitations, as modified by 11 U.S.C. § 108(c) if applicable, and within the time periods prescribed by Paragraph 5(f) of CMO No. 1. Within 120 days of filing her or his complaint, a Children Direct Claimant shall complete the Questionnaire described in CMO No. 2 and submit the Questionnaire to the DCC Litigation Facility.
ORDERED.