UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
In re: )
SILICONE GEL BREAST IMPLANT ) Master File No. CV 92-P-10000-S
PRODUCTS LIABILITY LITIGATION )
(MDL 926) )
HEIDI LINDSEY, et al., )
Plaintiffs; )
-vs.- ) Civil Action No. CV 94-P-11558-S
)
DOW CORNING CORPORATION, et al., )
Defendants. )
ORDER NO. 27
(APPROVAL OF REVISED SETTLEMENT PROGRAM AND INJUNCTIONS)
It is hereby ORDERED as follows:
1. Attached to this order is the "Bristol, Baxter, 3M, McGhan & Union
Carbide Revised Settlement Program," which has been submitted to the Court by
such defendants in accordance with paragraph 18 of the notice that described
the settlement which was approved on September 1, 1994 ("the Settlement").
(a) The Court concludes that, for eligible participants, this revised
settlement program reduces the amount of "ratcheting" that would otherwise
occur under terms of the Settlement and that, for persons not eligible to
participate, it preserves their rights under the Settlement to opt out and,
indeed, by providing some options to continue and extend the suspension of
statutes of limitation and repose, it partially enhances those rights.
Acting under its reserved general supervisory powers to administer the terms
of the Settlement, the Court approves this program (except where inconsistent
with the provisions contained in the attached Notice) as a revision in
benefits authorized under paragraph 18 of the notice previously sent
regarding the Settlement.
(b) Also attached to this order are the primary components of a new
Notice package that, pursuant to terms of the Settlement, shall, as soon as
printed, be sent to all persons who have registered with the Claims Office.
It will also be sent to all other persons who, although not having registered
with the Claims Office, nevertheless have given their names and addresses to
the Court or to the Claims Office as possibly being breast-implant
recipients, including those who have previously opted out. The provisions of
the attached Notice are adopted as part of this order and, in the event of
inconsistencies, the provisions of the attached Notice supersede and modify
those in the revised settlement program.
(1) Where class members have indicated that they have an
attorney and have asked that further information be sent only to such
attorney, the Claims Office will endeavor to send the Notice package only to
the attorney.
(2) Where class members have indicated they have an attorney
but have not specifically requested that further information be sent
only to their attorney, the Claims Office will endeavor to send the Notice
package both to the class member and to the attorney.
(3) Where class members have not indicated they have an attorney,
the Claims Office will endeavor to send the Notice package to the class
member.
(4) Although the foregoing notice program is in accord with the
requirements of the Settlement and satisfies due process requirements, if any
of the settling defendants want to give further additional notice to class
members regarding the revised settlement program beyond the written notice
and the explanatory television program, regional orientation meetings, and
national telephone conference described in the Notice package, they may do
so, but must first obtain the Court's prior approval as to the method and
contents of such additional notice.
(c) In a subsequent order, the Court will approve a Question and Answer
Booklet and Schedule G, which are to be mailed as part of the Notice
package to Lindsey class members and others identified as possibly being
breast-implant recipients. The Court reserves the right to make grammatical,
typographical, and other non-substantive changes in the Notice package during
the printing process.
(d) Class members should not use copies of the forms contained in the
attached Notice package to make elections regarding their rights and options.
Rather, they should wait until these forms--with identifying name, address,
social security (or MDL registration) number, and date of birth information
preprinted on the Election Forms to assist in electronic "scanning" of the
Election Forms--are, with the Question and Answer Booklet and Schedule G,
mailed to class members.
2. The injunction contained in the Settlement enjoining Lindsey class
members from instituting, asserting, or prosecuting claims against any of the
entities and persons named in Exhibit B to the Settlement as Settling
Defendants or Released Parties for personal injury or death allegedly due in
whole or part to any breast implant remains in effect, except as follows:
(a) Such persons--whether or not they elect to opt out of the Lindsey
class or to accept or reject the terms of the revised settlement
program--may, subject to the automatic stay provided by bankruptcy law, now
file and pursue claims against Dow Corning under and pursuant to procedures
for presenting claims against Dow Corning as set by the Bankruptcy Court for
the United States District Court for the Eastern District of Michigan. Any
suspension of the running of statutes of limitation and repose following the
filing of bankruptcy proceedings by Dow Corning is governed by applicable
provisions of bankruptcy law.
(b) Such persons--whether or not they elect to opt out of the Lindsey
class or to accept or reject
the terms of the revised settlement program--are, as a result of earlier
bankruptcy proceedings, barred from proceeding with claims against the
Bioplasty defendants. Their claims against the Bioplasty defendants will be
resolved under the terms of the previously-approved Settlement by this Court
and in conjunction with orders of the Bankruptcy Court for the United States
District Court for the District of Minnesota.
(c) Such persons--whether or not they elect to opt out of the Lindsey
class or to accept or reject the terms of the revised settlement
program--are, as a result of an earlier mandatory non-opt-out class
settlement which became final on September 10, 1993, barred from proceeding
with claims against the Mentor defendants relating to breast implants
implanted before June 1, 1993. Their claims against the Mentor defendants
relating to such implants will be resolved under the terms of the
previously-approved mandatory class settlement.
(d) Such persons may, upon opting out of the Lindsey class before
being sent the Notification of Status letter by the Claims Office, file and
pursue claims against such Settling Defendants and Released Parties (other
than as described in (a) - (c) above), with the running of statutes of
limitation and repose with respect to such entities and persons resuming 30
days after the Claims Office receives such opt-out election.
(e) Such persons may, upon opting out within 45 days after being sent
the Notification of Status letter by the Claims Office, file and pursue
claims against such Settling Defendants and Released Parties (other than as
described in (a) - (c) above), with the running of statutes of limitation and
repose with respect to such entities and persons resuming 6 months after the
Claims Office receives such opt-out election.
(f) Such persons who waive their opt-out rights under PARA 7 of the
attached Notice or do not exercise such opt-out rights within 45 days after
being sent the Notification of Status letter by the Claims Office--
(1) may, upon such rights being waived or expiring, file and pursue
claims against such Settling Defendants and Released Parties (other than the
entities and persons described in Exhibit B1 of the Notice and other than as
described in (a) - (c) above), with the running of statutes of limitation and
repose with respect to such entities and persons resuming 30 days after the
Claims Office receives such waiver or after such 45-day period expires; and,
(2) if they later have and exercise a right to opt-out under
PARA 20(e) of the attached Notice, may at that time file and pursue claims
(other than for punitive or multiple statutory damages) against the entities
and persons identified in Schedule B1 of the attached Notice, with the
running of statutes of limitation and repose with respect to such entities
and persons resuming 30 days after the Claims Office receives such subsequent
opt-out election.
(g) Foreign claimants--whether or not they elect to opt out of the
Lindsey class--may now file and pursue claims in the administrative or
judicial tribunals of their own ocuntry. Such foreign
claimants also, subject to potential objections based on "forum non
conveniens"--
(1) may now file and pursue claims in courts of the United States
against such Settling Defendants and Released Parties (other than the
entities and persons described in Exhibit B1 of the Notice and other than as
described in (a) - (c) above), with any suspension of statutes of limitation
and repose terminating 30 days after being sent the attached Notice; and
(2) may, upon filing an Election to Opt Out with the Claims Office
no later than 45 days after being sent the Notification of Status letter by
the Claims Office, file and pursue claims in the courts of the United States
against the entities and persons identified in Schedule B1 of the attached
Notice, with any suspension of statutes of limitation and repose terminating
30 days after the Claims Office receives such opt-out election.
(h) Children of breast-implant recipients may now file and pursue
claims against such Settling Defendants and Released Parties (other than as
described in (a) - (c) above) respecting their own personal injury or death
allegedly due in whole or part to their mother's having had a breast implant.
As described in PARA 19 of the attached Notice, statutes of limitation or
repose with respect to such entities and persons are suspended until December
15, 1997, or, if later, in accordance with applicable state law. Persons who,
having previously opted out of the Lindsey class, elect to rejoin the class
in order to participate in the revised settlement program will, upon filing
the Election Form, be enjoined from instituting, asserting, or prosecuting
claims against any of the entities and persons named in Exhibit B1 to the
attached Notice for personal injury or death allegedly due in whole or part
to any breast implant. If such persons later have and exercise a right to opt
out under PARA 20(e) of the attached Notice, they may at that time file and
pursue claims (other than for punitive or multiple statutory damages) against
such entities and persons, with statutes of limitation and repose deemed to
have been suspended from the time such persons file their Election to rejoin
the class until 30 days after such subsequent Opt-Out election is filed with
the Claims Office.
3. The Settling Defendants identified in Schedule B1 of the attached
Notice are hereby enjoined, pending further order of the Court, from engaging
in settlement negotiations and discussions relating to possible resolution of
claims by persons who have previously opted out of the Lindsey class or who
may hereafter opt out of the Lindsey class except on a case-by-case,
individual-claimant basis in cases that were brought by persons who earlier
opted out of the Settlement or that may be specifically set for trial or
court-sponsored mediation or arbitration. With respect to any such
settlement negotiations and discussions that are permitted, the Settling
Defendants and such claimants and their counsel are alerted to the provisions
of Order No. 13 and PARA 28(b) of the attached Notice.
4. As with the Settlement approved on September 1, 1994, the court,
under Fed. R. Civ. P. 54(b), expressly determines that there is no just
reason for delay and expressly directs that this order, upon filing in CV
94-P-11558-S, be deemed as a final judgment.
5. Without deferring or delaying the finality of this order, this court
retains exclusive, general, and
continuing jurisdiction as needed or appropriate in order to administer,
supervise, implement, interpret, or enforce the Settlement, including the
investment, conservation, protection, allocation, and distribution of the
settlement funds under the revised settlement program.
This the 22nd day of December, 1995.
/s/ Sam C. Pointer, Jr.
---------------------------------
Chief Judge
BRISTOL, BAXTER, 3M, MCGHAN & UNION CARBIDE REVISED SETTLEMENT PROGRAM
A. ELIGIBLE PARTICIPANTS: A non-foreign class member, as defined in the global
settlement, who has or had at
least one implant manufactured or distributed by one of the settling defendants
(or their predecessors and
subsidiaries): Bristol/MEC, Baxter/Heyer-Schulte, 3M,(1). or McGhan. (2)
1. Proof of eligibility is to be provided as specified in I1 below.
2. Persons who would otherwise be eligible to participate but for having
previously opted out from the global settlement may participate under the
program for "Other Registrants" if, before 12/16/96 and before proceeding to
trial against a settling defendant, they withdraw their exclusion and
register with the Claims Office.
3. Persons are not eligible to participate if their claims against each
of the settling manufacturers from which they have received implants have
been released by settlement or resolved by final judgment.(3) (If their claims
against a settling defendant have been released or resolved by final judgment
but they also have an implant from another settling manufacturer, they may
participate and be eligible for prorated benefits paid by the settling
defendant(s) with respect to which there is no release or final judgment).
4. Children of breast implant recipients are not eligible with respect to
claims of their own personal injury, and such claims are not released by the
recipient's being in the class. As under the existing settlement, derivative
and representative claims are settled if the recipient participates in the
program, and personal representatives may act on behalf of deceased or
incompetent class members.
B. CLASSIFICATION OF ELIGIBLE PARTICIPANTS:
1. CURRENT CLAIMANTS: eligible participants who mailed to the Claims
Office (a) by 9/16/94 a signed Registration Form and (b) by 10/17/94 a
substantially complete Current Disease Compensation Form with sufficient
documentation to be classified by the Claims Office under the global
settlement as a current claimant (without regard to whether any deficiencies
in documentation would be classified as minor or major).
2. OTHER REGISTRANTS: eligible participants (a) who registered with the
Claims Office by 3/1/95 but are not Current Claimants under B1 above or (b)
who, having previously excluded themselves from the global settlement,
withdraw their exclusion and register with the Claims Office by 12/16/96.
3. LATE REGISTRANTS: all other eligible participants (I.E., all other
non-foreign class members with a
- - -----------------------
1. For purposes of this Revised Settlement Program, 3M implants are defined
as 3M/McGhan implants implanted (or manufactured in whole or in part) before
8/3/84.
2. For purposes of this Revised Settlement Program, Post-'84 McGhan implants
are defined as silicone gel implants manufactured at or by McGhan wholly
after 8/3/84. McGhan, 3M, and Union Carbide have agreed to provide certain
benefits under this Revised Settlement Program to participants who have or
had only Post-'84 McGhan implants or who have or had only such implants and
implants manufactured by Bioplasty, Cox Uphoff/CUI or Mentor.
3. Each settling defendant must provide to the
Claims Office, by December 15, 1995, a list identifying all such persons.
1
Bristol, Baxter, 3M or Post-'84 McGhan implant) who are not Current Claimants
under B1 or Other Registrants under B2 above but who register with the Claims
Office. As under the global settlement, it is anticipated that at some point
the court will establish a final deadline for persons to register with the
Claims Office.
C. OPT-OUT RIGHTS OF ELIGIBLE PARTICIPANTS
1. Subject to the limitation in C2 below, any eligible participant may
reject the settlement offer by filing an opt-out election that is RECEIVED by
the Claims Office not later than 45 days after date of Notification of status
of the participant's registration and claim as provided in I2. Statutes of
limitations and repose will remain suspended for 6 months after the Claims
Office receives the opt-out election.
2. Late Registrants will not have the opt-out right described in C1 above
unless they register with the Claims Office by 4/1/96.
3. Current Claimants and Other Registrants may expedite receipt of the
Advance Payments provided in D1 and E3 below by waiving the opt-out right
provided in C1 above.
4. Certain ongoing opt-out rights are provided in D2b(2) and E2c below.
D. BENEFITS FOR CURRENT CLAIMANTS(4):
1. ADVANCE PAYMENT. A non-refundable advance payment of $5,000 will be
paid as soon as the Claims Office determines that a person has not opted out
within the time permitted under C1 (or under C3 has waived the remaining time
to opt out), is a Current Claimant, and has sufficient manufacturer
identification information. Payment will be made without regard to the
status of any appeals relating to this settlement and without regard to the
existence of any deficiencies in the claim. The $5,000 payment will be
credited against other amounts payable to the claimant under the settlement
or awarded in a judgment recovered against settling defendants in later
litigation(5), but otherwise is not refundable unless the Claims Office
determines the claim to have been fraudulently presented.
2. COMPENSATION. Benefits (less the Advance Payment under D1 above and
subject to reduction under F1 below if the claimant also has Dow implants) to
be paid to a Current Claimant, at the claimant's election, under either
Option One or Option Two.
a. OPTION ONE -- FIXED BENEFITS FOR CURRENT CLAIMANTS: A fixed
amount (not increased or decreased by later changes in claimant's condition)
based on disease definitions and severity/disability categories in the
original Disease Schedule (Exhibit D to global settlement). Upon satisfying
these criteria (and with satisfactory evidence respecting implant
manufacturer identification), a claimant electing this option will be paid
according to the following schedule based on the severity/disability level
and on whether by 12/16/96 there is appropriate
- - ----------------------------
4. Current Claimants with only Post-'84 McGhan implants (or only Post-'84
McGhan implants plus implants from Bioplasty, Cox Uphoff/CUI or Mentor) will
receive only the benefits set forth in D3 below.
5. Under certain conditions claimants may have later rights to opt out and
pursue litigation against settling defendants. (See D2b(2)). To exercise
such an opt-out right, the claimant would first have to return any amounts
previously paid (other than the Advance Payment and explantation payments).
2
documentation of rupture of a Bristol, Baxter, or 3M implant. Claims will be
processed by the Claims Office in accordance with all relevant provisions of
the original global settlement.
Option One -- Fixed Benefits (Current Claimants Only)
Disability Level Base Amount Supplement if rupture
---------------- ----------- ---------------------
A $50,000 + $50,000 = $100,000
B $20,000 + $30,000 = $ 50,000
C or D $10,000 + $15,000 = $ 25,000
(1) On electing to proceed under Option One, Current Claimants will,
upon satisfying the criteria and approval by the Claims Office, be paid the
specified amount (less the advance payment) upon full release of all claims
against all settling defendants (and other released parties). The obligation
of settling defendants to pay both the base amount and the increased amount
for ruptures is not affected by the number or amounts of claims or by the
number of opt-outs. Payments will be made as soon as the claim is approved
and upon execution of a standard-form release, without regard to the pendency
of any appeals. A Current Claimant initially qualifying only for the base
amount will be paid the rupture supplement (maximum one per claimant) on
proof by 12/16/96 of rupture.
(2) Payments of $25,000 or less will be paid in a single lump sum;
payments of more than $25,000 will be paid in two equal annual installments.
(3) "Rupture" of a Baxter, Bristol, or 3M implant -- which, if
documented by 12/16/96, affects benefit levels for Current Claimants under
Option One -- refers to the failure of the elastomer envelope(s) surrounding
a silicone-gel implant to contain the gel (resulting in contact of the gel
with the body), not solely as a result of "gel bleed", but due to a tear or
other opening in the envelope(s) after implantation and prior to the
explantation procedure. To qualify for a rupture supplement, the Claimant
must have undergone an explantation operation at which the rupture was
confirmed and must submit a contemporaneous operative and/or pathology report
(and related statements) documenting the rupture in accordance with the
protocol in Exhibit F. For explantations after 1/1/96, the claimant shall
use her best efforts to cause the removed implant to be preserved and, if
requested by the Claims Office, to provide the removed implant to the Claims
Office or to an examiner designated by the Claims Office to resolve or report
on the issue of rupture.
b. OPTION TWO: As an alternative to Option One, Current Claimants may
choose Option Two for long-term benefits under E2 below. Benefits under
Option Two depend on satisfying during the 15 year period of the program the
more restricted disease and severity criteria specified in Exhibit E (rather
than the disease and severity/disability categories specified in the Disease
Schedule attached as Exhibit D to the original global settlement notice).
Upon satisfying these criteria and approval by the Claims Office, the
claimant will be paid in accordance with the schedule shown in E2 below,
depending on the new disease/severity criteria.
3
(1) The obligation of defendants to pay approved SS/SLE
benefits under Option Two to a Current Claimant whose claim for SS/SLE under
the global settlement would have been either approved or treated as having
only minor deficiencies (and to pay approved GCTS/PM/DM benefits under Option
Two to a Current Claimant with any claim that under the global settlement
would have been approved or treated as having only minor deficiencies) is not
affected by the number or amounts of claims, by the number of opt-outs, or by
the maximum cumulative obligations of settling defendants under E2c below;
and, upon execution of mutually satisfactory releases with individual
claimants, the settling defendants will pay these amounts without regard to
the pendency of any appeals relating to this settlement.
(2) Current Claimants who elect and qualify for compensation
under Option Two will be treated as also eligible, during the 15 years of the
program, for additional compensation in the same manner as for Other
Registrants and subject to the provisions of E2c. That is, if a Current
Claimant who receives a payment under Option Two later develops during the 15
years of the program a condition that would entitle her to a larger amount,
she would at that time be entitled to the difference between the new
compensation amount and any amount previously paid. If at that time she does
not receive this increase because of the maximum cumulative obligations of
the defendants under E2c below, she would have the same opt-out right as
stated in E2c.
(3) Current Claimants electing Option Two may, at any time
during the 15 year period of the program before being awarded benefits under
Option Two, elect to return to Option One but with a 25% reduction in the
amount they would otherwise receive under Option One.
3. POST-'84 MCGHAN IMPLANTS. Current Claimants with only Post-'84 McGhan
implants (or only Post-'84 McGhan implants plus implants from Bioplasty, Cox
Uphoff/CUI or Mentor) shall be eligible for Option One benefits as set forth
in D2a above, excluding rupture supplements. Payments to such claimants are
not payable until 30 days after the Court's Final Order with respect to this
Revised Settlement Program becomes Final as defined in the global settlement.
Thereafter, payments will be made to claimants with approved claims upon
execution of a standard form release.
E. GENERAL BENEFITS FOR PARTICIPANTS
1. EXPLANTATION EXPENSES. Although not recommending explantation absent
some specific medical reason to do so, the settling defendants will pay
$3,000 to Current Claimants and Other Registrants who, after 4/1/94 and
within the 15 years of the program, have a Bristol, Baxter, or 3M implant
removed (without the surgery also involving reimplantation of a silicone-gel
implant).
a. The obligation of settling defendants to make this payment is not
affected by the number or amounts of claims or by the number of opt-outs, or
by the amount of money paid as benefits under E2 below. This $3,000 payment
is not subject to refund (unless the participant later elects to opt-out
under C1), but would be credited against any judgment against settling
defendants in subsequent litigation by the participant.(6)
- - ----------------------
6. Under certain conditions the participant may have the later right to opt
out and pursue litigation against settling defendants. (See E2c
below.)
4
b. Payment of these expenses does not reduce the amount of a
participant's benefits under E2 (or the amount of benefits for
Current Claimants under Option One).
c. Explantation expenses are not payable to "Late Registrants".
d. Although intended only as means to defray medical costs of
explantation, the amount will not be reduced as a result of the person
actually incurring less than $3,000 in expenses, whether as a result of a
smaller charge for the explantation procedure or as a result of insurance or
governmental health programs.
e. In addition, as an optional alternative to the $3,000 assistance
offer, the settling defendants in the future may provide a list of surgeons
willing to perform explantations, if the claimant so chooses, without any
charge personally to the claimant.
2. COMPENSATION. On proof of satisfying, during the 15-year period of the
program, the revised disease and severity criteria specified in Exhibit E,
eligible participants will be paid (subject to reduction under F1 below if
the participant also has Dow implants) compensation under the following
schedule,(7) depending on the new disease/severity criteria.
Option Two -- Long Term Benefits
Disease -- Severity Level Amount
------------------------- ---------
SS/SLE--A $250,000
SS/SLE--B $200,000
SS/SLE--C $150,000
GCTS/PM/DM--A $110,000
GCTS--B $ 75,000
a. Benefits are to be paid in annual installments (as needed) of
$100,000. These benefits are in addition to any payment related to
explantation under E1 above.
b. If during the 15 years of the program the person develops a
condition that would entitle her to a larger amount than she has previously
received, she would at that time be entitled to the difference between the
new compensation amount and any amount previously paid.
c. The maximum obligation of the defendants to make payments under
this program (E2) is $755,000,000 (less amounts paid for explantation
expenses of Other Registrants under E1 above(8)), with obligated payments as
follows:
- - -------------------------
7. Other Registrants with only Post-'84 McGhan
implants (or only Post-'84 McGhan implants plus implants from Bioplasty, Cox
Uphoff/CUI, or Mentor) will be eligible for Option Two benefits as follows:
SS/SLE-A,B, or C --$50,000; GCTS/PM/DM -A -- $20,000; and GCTS-B --
$10,000.
8. In the event the settling defendants provide a list of surgeons to perform
explantation without charge to claimants (under E1e above), the settling
defendants shall be entitled to a $3,000 credit per operation
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- Bristol's cumulative obligation under E2 ($400,000,000)
increases in the amount of $27,600,000 per year for the first 10 years and
$24,800,000 per year for the next 5 years (less amounts paid by it for
explantation expenses of Other Registrants under E1)
- Baxter's cumulative obligation under E2 ($193,000,000)
increases in the amount of $13,300,000 per year for the first 10 years and
$12,000,000 per year for the next 5 years (less amounts paid by it for
explantation expenses of Other Registrants under E1)
- 3M's cumulative obligation under E2 for 3M implants
($132,000,000) increases in the amount of $9,100,000 per year for the first
10 years and $8,200,000 per year for the next 5 years (less amounts paid by
it for explantation expenses of Other Registrants under E1)
- 3M's cumulative obligation under E2 for Post-'84 McGhan
implants ($12,000,000) increases in the amount of $800,000 per year for 15
years (less the amount, if any, that its payments under D3 for Post-'84
McGhan implants exceed $76,800,000)
- McGhan's cumulative obligation under E2 for Post-'84 McGhan
implants ($6,000,000) increases in the amount of $400,000 per year for 15
years (less the amount, if any, that its payments under D3 for Post-'84
McGhan implants exceed $38,400,000)
- Union Carbide's cumulative obligation under E2 for Post-'84
McGhan implants ($12,000,000) increases in the amount of $800,000 per year
for 15 years (less the amount, if any, that its payments under D3 for
Post-'84 McGhan implants exceed $76,800,000)
If these cumulative limitations in any year result in any
participant not being paid the full amount (or installment) shown in the
schedule, then such person would at that time have the option either (1) to
accept a reduced amount based on the defendant's obligated payment (with a
carry forward of the unpaid portion for potential payment in future years if
within the defendant's obligated payments) or (2) to opt out from the
settlement, with the rights to pursue litigation against the settling
defendants for compensatory damages (but not punitive or statutory multiple
damages). Participants electing to opt out (a) must first return any amounts
previously paid under the program (other than for explantation expenses or,
for Current Claimants, as an Advance Payment) and (b) shall be given the
opportunity, if they so elect, to participate in non-binding mediation, in
accordance with procedures to be established by the court, in an effort to
resolve their claims.
d. Benefits to Late Registrants under this program will, as under the
terms of the global settlement, be paid only if, when, and to the extent the
defendant's cumulative payment obligations under this program exceed the
payments to other participants claiming under this program; and such Late
Registrants will have no right to opt out because of failure to receive the
full amount shown in the schedule.
3. ADVANCE PAYMENT. A non-refundable advance payment of $1,000 will be
paid as soon as the Claims Office determines that a person has not opted
out within the time permitted under C1 (or under C3 has waived the remaining
time to opt out), is an Other Registrant, and has sufficient manufacturer
identification information of having had a Bristol, Baxter, or 3M implant.
Payment will be made without regard to the status of any appeals relating to
this settlement and without regard to the existence of any
6
deficiencies in the claim. The $1,000 payment will be credited against other
amounts payable to the claimant under the settlement or awarded in a judgment
recovered against settling defendants in later litigation,(9) but otherwise is
not refundable unless the Claims Office determines the claim to have been
fraudulently presented.
F. MULTIPLE IMPLANTS
1. Amounts payable are, in general, not diminished by a person's having
one or more implants manufactured by other companies in addition to implants
from the settling defendants. However --
a. If a participant has received one or more Dow implants in addition
to one or more Bristol, Baxter, or 3M implants, the benefits provided under
Option One and Option Two (but not the amount of the Advance Payment or the
amount for explantation expenses) will be reduced by 50%. For example, if a
Current Claimant qualifying under Option Two for a payment of $200,000 had
one or more Bristol implants, one or more Dow implants, a Mentor implant, a
McGhan implant manufactured after 8/3/84, and an implant whose manufacturer
could not be identified, her compensation would be reduced to $100,000.
b. Persons who have received one or more Post-'84 McGhan implants and
one or more implants from manufacturers other than Bristol, Baxter, 3M,
Bioplasty, Cox Uphoff/CUI, or Mentor are not eligible to participate under
this Revised Settlement Program.
c. Participation in this program does not release claims a
participant may have against entities and persons that are not the settling
defendants or Released Parties under Exhibit B1. Participants are, however,
cautioned that bankruptcy rules provide a stay at the present time against
institution or pursuit of claims against Dow Corning, and, to preserve claims
against Dow Corning, participants may need to file appropriate claims in the
bankruptcy court.
2. The obligations of the settling defendants to make payments under this
program are several, not joint, and are limited to the approved claims
involving implants from that defendant or with respect to which that
defendant is agreeing to make payments.
a. If a person has implants from more than one of Bristol, Baxter, or
3M, their obligations are divided simply on the basis of the number of such
defendants whose implants the claimant had.(10) For example, if a person had one
or more Bristol implants, one or more Baxter implants, a Post-'84 McGhan
implant, and a Mentor implant, and was entitled to a $150,000 payment, then
Bristol would be responsible for payment of $75,000 and Baxter for payment of
$75,000.
b. The obligations of McGhan, 3M, and Union Carbide with respect to
payments to persons who have only Post-'84 McGhan implants (or only Post-'84
McGhan implants and implants from only Bioplasty, Cox Uphoff/CUI, or Mentor)
are also several. 3M and Union Carbide shall each be obligated to
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9. Under certain conditions claimants may have later rights to opt out and
pursue litigation against settling defendants. (See E2c). To exercise such an
opt-out right, the claimant would first have to return any amounts previously
paid (other than the Advance Payment and explantation payments).
10. Enhancement payments for rupture, however, remain the sole responsibility
of the settling defendant(s) whose implant(s) ruptured.
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make 40% of each such payment, and McGhan shall be obligated to make 20% of
each such payment.
G. ATTORNEY FEES AND ADMINISTRATIVE EXPENSES
1. Fees and expenses of attorneys representing an individual participant
in the program are to be paid by the participant (or from benefits payable to
her under this program) in accordance with the arrangements made between the
participant and the attorney, but the court is reserving the power to set
some appropriate standards and limitations on those arrangements (such as
precluding the inclusion of explantation reimbursement from the calculation
of a recovery-based contingent fee). Amounts payable to participants will
not be subject to any reduction for fees and expenses of attorneys for
representing the plaintiff class or for other "common benefit" services.
2. Pursuant to Order No. 13, an amount equal to 6% of the amounts paid to
participants under this program will be paid by defendants as a surcharge (in
addition to benefits paid to participants) into the previously established
fund as a means for compensating and reimbursing counsel providing "common
benefit" services. Under terms of that order, participants would receive on
a pro-rata basis an increase in individual benefits should the court
determine that the amount of the fund exceeds the reasonable fees and
expenses chargeable against it.
3. Amounts previously paid by defendants under the global settlement to
support operations of the Claims Office and for other administrative purposes
will remain under the court's jurisdiction for those purposes. Settling
defendants will pay such additional sums for operations of the Claims Office
during the 15-year period of the program as determined by the court (in
consultation with the settling defendants) to be necessary for that purpose.
Allocation among settling defendants of the amounts paid for Claims Office
and administrative expenses shall be based upon the number of claimants
applying for benefits allocable to each of the settling defendants, and shall
be adjusted on an on-going basis as necessary by the Court.
H. DOCUMENTATION. Current Claimants, Other Registrants, and Late Registrants
may, throughout the 15 year period of the program, submit documentation
respecting manufacturer identification, medical conditions and disability,
and other matters affecting eligibility or entitlement to benefits in
accordance with governing procedures. The Claims Office may, however,
establish regulations relating to the submission of medical documentation and
setting reasonable periods at which to conduct evaluations or re-evaluations
of a person's eligibility and benefits based on supplemental submissions and
for submission of supplemental documentation after notice of deficiencies.
Initial documentation showing manufacturer identification must be presented
to the Claims Office no later than 12/16/96 by participants claiming status
as Current Claimants, as must documentation of a claim for rupture supplement
under Option One.
I. CLAIMS OFFICE PROCEDURES. The Claims Office will continue to process and
evaluate all domestic registrations and claims submitted to it as
expeditiously as possible, but will give priority of consideration to claims
in which the claimant has indicated having a Bristol, Baxter, or 3M implant.
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1. Protocols governing the required identification of manufacturers of
claimants' implants are included in the attached Exhibit F. In order to be
processed as a Current Claimant, a form to be provided by the Claims Office
regarding proof of manufacturer identification must be received by the Claims
Office by 12/16/96; earlier presentation of the form will expedite processing
of Current Claims. The manufacturer defendants agree to provide reasonable
assistance (including access to their records) to claimants who have
difficulties in identifying the manufacturer of their implants from their own
medical records. At their request, defendants shall be afforded access to
documentation and other supporting evidence submitted by a claimant to
identify manufacturers of her implants (but redacted to preserve the
confidentiality of the claimant's identity), and shall bring to the Claim
Administrator's attention any submissions not covered by existing protocols.
In such instances, defendants and Settlement Class Counsel shall have the
opportunity to submit to the Claims Administrator written suggestions for
amendments or additions to the existing protocols to address the questions
raised by the claimants' offers of proof. Any amendments or additions to the
promulgated protocols will be published on the Claims Office computer
bulletin board and be made available on request to any class member or
attorney.
2. Processing of Claims: As claims are processed and evaluated, the
Claims Office will send each participant a Notification of Status indicating
whether her proof of manufacturer identification is satisfactory; whether she
is classified as a Current Claimant, Other Registrant, or Late Registrant;
whether any documentation submitted in support of a rupture supplement under
Option One is satisfactory; whether she is entitled to any Option One payment
(and, if so, the amount of such payment); whether there are any deficiencies
in the submission; and whether there is a deadline for submitting
supplemental documentation relating to deficiencies. If there are
deficiencies in any of the materials that are subject to correction, the
Notification will so advise. This Notification, which triggers the opt-out
period under C1, will be sent to the last address provided to the Claims
Office, with a copy to the person's attorney if one has been indicated.
3. The Claims Office will continue to implement procedures designed to
detect and prevent payment of fraudulent claims. It should be recognized,
however, that these procedures cannot be fully implemented preceding Advance
Payments under D1 and E3 above in view of the goal to make such payments as
soon as possible.
4. Under its plenary responsibilities to assure an acceptable level of
reliability and quality control of claims, the Claims Office may require,
without expense to the claimant, an examination or review by a physician or
laboratory selected by the Claims Office.
J. FUNDING. Each settling defendant will pay into the fund established by
the court such amounts as, from time to time during the 15 year period of the
program, are estimated by the court with the assistance of the Claims Office
to be needed (after considering undistributed funds previously contributed to
the fund by
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that defendant) to pay benefits (or instalments) for which that settling
defendant will become obligated to pay during the next 3 months. The fund
will maintain appropriate records defining amounts contributed and disbursed
with respect to each settling defendant and with respect to the Current
Claimant and Other Registrant programs. The obligations of the defendants to
contribute to funding of Option Two under E2 (except as specified in D2b(1))
are limited to annual cumulative amounts indicated in E2c above. As an
initial reserve, Bristol, Baxter, and 3M will each pay into the fund by
January 15, 1996, at least $125,000,000.
K. MISCELLANEOUS.
1. Establishment of and discussions leading to the settlement program,
and payments under the program, do not constitute any admission by defendants
of fault, liability, or damages and will not be admissible in evidence in any
proceeding for such purposes or as evidence of ownership, control, agency, or
relationship among and between the settling defendants and the released
parties in the event a person who was eligible to participate in the global
settlement] at some point opts out and proceeds with litigation against the
defendants (except that any judgment obtained by such person will be reduced
by any payment under this settlement).
2. All of the Released Parties identified by the settling defendants in
Exhibit B1 are released to the same extent as are the settling defendants.
3. Subject to appropriate conditions to protect claimant confidentiality,
insurers for settling defendants
will be afforded access to appropriate records of the Claims Office as may be
necessary for defendants
to receive benefits under such insurance policies.(11)
4. Subrogation-type claims by insurers or governmental agencies based on
payment of medical expenses of participants will, to the extent enforceable
under applicable laws, be the responsibility of eligible participants;
settling defendants will have no additional responsibilities to such insurers
and agencies and will be protected by participants against such claims.
5. Where this program establishes deadlines for filing elections,
supporting materials, etc. with the Claims Office, the materials must be
ACTUALLY RECEIVED at the Claims Office by 5pm, central time, on
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11. The court finds that the amounts to be paid under this revised
settlement program by each settling defendant will, from the defendant's
standpoint, represent a reasonable settlement of compensatory bodily injury
claims from breast implants.
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that date. Fax transmissions will not be acceptable.
6. The various elections under this program may be made either by the
participant or by the participant's previously designated attorney. In the
event of a conflict between elections made by a participant and the
participant's attorney, the participant's election controls.
7. The court shall appoint an independent public accounting firm to
(a) conduct an annual financial audit of the Claims Office in accordance with
Generally Accepted Auditing Standards and (b) conduct an audit or audits of
the processing of claims by any outside claims evaluators. Reports will be
made available to the parties subject to appropriate conditions to protect
claimant confidentiality.
8. Settling defendants and Released Parties will--subject to the
provisions of this program--be fully, completely, and forever released from
all claims of non-foreign class members who have at least one breast implant
manufactured by one of the settling defendants or their predecessors or
subsidiaries, including derivative claims of their spouses, children,
parents, and others; and such class members, including those with derivative
claims (but excluding the claims of children for their own injury), will be
permanently enjoined from asserting, instituting, or prosecuting any breast
implant-related claim against a settling defendant or released party.
9. This program will continue to be subject to the court's previous
orders concerning contribution and indemnification claims against the
settling defendants and Released Parties.
10. This settlement program resolves -- subject to its terms -- all
breast-implant related claims (including derivative claims of spouses,
parents, children, and others) against the settling defendants (and their
respective Released Parties) by non-foreign class members who have at least
one breast implant manufactured by one of the settling defendants or their
predecessors or subsidiaries unless such class members (a) opted out of the
settlement class under the global settlement during the 1994 opt-out period
(and do not withdraw their exclusion under A2), (b) opt out of this
settlement program under C1 above , or (c) exercise an additional opt-out
right as provided in sections D2b(2) and E2c above. All claims for
compensation must be made by the end of the fifteenth year of the program
(12/15/2010). Any claim by such a class member not made during that period
would be forever barred.
11. Unless otherwise provided, the terms used herein are as defined in
the Breast Implant Litigation Settlement Notice, the Breast Implant
Litigation Settlement Agreement, and the Court's Final Order and Judgment
dated September 1, 1994, together with any prior orders incorporated therein
by reference. Benefits under this program are in lieu of all other benefits
that participants and their attorneys might have had under the global
settlement.
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12. The obligations of Bristol, Baxter, and 3M to fund Option Two
benefits for both Current Claimants and Other Registrants will be suspended
if the provisions of A, B, C, D, E, J, K1, K2, K4, K8, or K10 are challenged
on appeal and will be cancelled (together with McGhan's, 3M's, and Union
Carbide's obligations to provide payments for Post-'84 McGhan implants) if
any of those provisions are disapproved on appeal.
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