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SECTION
3
-REJECTING THE SETTLEMENT OPTION TO FILE A LAWSUIT
AGAINST DCC LITIGATION FACILITY, INC.
Important: There is a
cap of $400 million Net Present Value available to pay all defense costs,
administrative costs, and costs of judgements and/or settlements for opt
out personal injury claimants.
Q3-1. "What is DCC Litigation Facility, Inc.?"
DCC Litigation
Facility, Inc. is a corporation that was created to defend lawsuits filed
by claimants who
reject the settlement benefits. (These claims are
referred to as opt-out claims.) DCC Litigation Facility, Inc.
is the
entity that has assumed all liabilities of Dow Corning, its shareholders,
and other "Released Parties"
for personal injury claims arising from
certain Dow Corning products including
breast implants.
Q3-2. "What does it mean to file a lawsuit and
try my case against DCC Litigation Facility, Inc.?"
If you reject
the Settlement Option, you must file a lawsuit in the U.S. District Court
in Michigan and try
your case against DCC Litigation Facility, Inc. You
are strongly encouraged to consult with an attorney
prior to making this
decision. If you file a lawsuit, you must follow the Case Management
Order. If you
reject the settlement benefits, then:
(a). You will not be eligible for any settlement benefits from the
Settlement Facility. This means that you
cannot apply for Explant,
Rupture, Expedited Release or Disease payments.
Your choice to reject the
settlement
benefits is permanent. You cannot return to the Settlement Option in the future or receive
any settlement benefits from the Settlement Facility. If you lose your case, you cannot return to the
Settlement Option, and you cannot receive any payment.
(c).
You will have the burden of proving that your breast
implant caused your disease or other
problems. DCC Litigation
Facility, Inc. will contest your claim that your implant caused your
disease
or other problems.
(d). Your case
will not be set for trial until the District Court certifies that you have
met the requirements in
the Case Management Order and are ready to
proceed to trial. The trial will be either in the Eastern
District of Michigan, the federal district court in the
district where your claim arose, or in an
appropriate state court as defined in the Case Management Order.
(e). If you live
outside the U.S., DCC Litigation Facility, Inc. may try to have
your case referred to a
court in your country under the doctrine
of "forum non conveniens."
(f). Other than
filing your lawsuit within the deadline in the Case Management Order, no
litigation will be
permitted until after the Plan of Reorganization becomes effective. The "Effective Date" occurs after all
appeals are concluded, there is a confirmed Plan of
Reorganization, and other conditions described in
the Plan Documents have been met. The litigation option will take
more time and effort on your part
than the Settlement Option, since it often takes years before cases are set
for trial.
(g).
You will not be permitted to recover punitive
damages.
(h). You must
file a lawsuit in court against DCC Litigation Facility, Inc. (unless you
have a previous action
pending). The lawsuit must follow the procedures and deadlines established in the Case Management
Order Sections 5(a) and 5(f). Read the Case
Management Order Outline and MOL Orders 40, 44
and 44a and other applicable MOL Orders (the MOL orders
are located at
http://www.fjc.gov/BREIMLIT/mdl926.htm
(i). If
you do not file your lawsuit by the deadline in the Case Management Order
or any applicable
statute of limitation, your case will be dismissed and barred forever, and you will not be able to
recover any payment.
(j). You must
comply with case specific discovery requirements set out in Section 9(b)
and Section 11 in
the Case Management Order. These include - as in any
litigation - responding to interrogatories,
producing your relevant medical records, and appearing for
depositions.
(k). Pursuant to
Section 10 in the Case Management Order, the MOL documents and depositions
located
in the National Depository, and the report of the 706
Panel (including any depositions) may be used in
your individual trials in accordance with the Federal
Rules of Evidence and various orders of the MOL
court. Additional non-case specific discovery will be
allowed only if recommended by the Special
Master and approved by the federal court for the Eastern
District of Michigan.
(l).
Your identity and Proof of Claim form will be
publicly available and will not be confidential as it
will be
if you choose the Settlement Option. Claims in the
Settlement Option will be confidential.
Q3-3. "Where are the rules for filing a case
against DCC Litigation Facility, Inc.?"
Read the Case
Management Order Outline at Tab 3, or the entire CMO at
www.dcsettiement.com.
Q3-4. "What court has jurisdiction over cases
against DCC Litigation Facility, Inc.?"
Judge Denise
Page Hood of the United States District Court, Eastern District of
Michigan, has jurisdiction
over all claimants who reject the Settlement
Option.
Q3-5. "How much money is allocated to DCC Litigation
Facility, Inc.?"
There is a cap
of $400 million Net Present Value
available to pay all defense costs, administrative costs,
and costs of
judgments and/or settlements for opt out personal injury claimants.
Q3-6. "Is there a cap or limit on how much I can
recover on my individual claim?"
The Plan
Documents do not place a limit on any individual litigation recovery.
However, if the total value of
resolved claims against DCC Litigation
Facility, Inc. exceeds $400 million (Net Present Value), the
Finance Committee will have authority to
recommend reductions in payments to claimants who
rejected the Settlement
Option. In no event will more than $400 million (Net Present Value)
be allotted
to pay claims against DCC Litigation Facility, Inc.
Q3-7. "What should I do
before I make my decision to settle or file a lawsuit against DCC
Litigation
Facility,
Inc.?"
Read this entire
Claimant Information Guide and the Case Management Order carefully to
understand what
will be required of you. If you are represented by an
attorney, consult with your attorney before you make
a decision. If you do
not have an attorney, you are strongly encouraged to obtain one if you
decide to reject
the Settlement Option.
The Settlement
Facility and the Claims Assistance Program cannot advise you on what
decision you should
make and cannot give you any legal
advice. If you
choose the Settlement Option, you are not required to
have an attorney to
submit a claim for benefits. However, if you are represented by an
attorney, contact
your attorney regarding your claim.
Q3-8. "My husband wants me to file a lawsuit,
but I want to settle my claim in the Settlement Facility.
Can he file a
lawsuit if I choose to settle?"
No. If you
choose to settle your claim, your spouse cannot file a lawsuit.
Q3-9. "If I decide to file a lawsuit but later
change my mind, can I apply for settlement benefits?"
When we receive
your Participation Form stating that you are rejecting settlement benefits
and are filing a
lawsuit, we will send you a letter confirming your
decision.
You will have
thirty (30) days
from the date on that letter to inform us if you made a mistake or
change
your mind and want to settle your claim.
After that
thirty (30) day time period has expired, you will
not be able to change
your mind and apply for settlement payments.
Q3-10. "I have a
breast implant made by Dow Corning (Class 5) and a silicone gel breast
implant from
Bristol (Class 7). Can I file a lawsuit for my Dow Corning
breast implant and receive settlement
benefits from Class 7 for my Bristol
silicone gel breast implant?"
No.
Q3-11. "I have a Dow Corning breast implant (Class 5) and a Dow Corning
TMJ implant (Class 9). Can
I file a lawsuit just for my TMJ
implant?
Yes.
Q3-12. "I don't have a disease now, but I am concerned that I may develop
one in the future. If I reject
the settlement benefits, do I have
to file a lawsuit now, or can I file a lawsuit a couple of years
from now
if I become ill?"
Sections 5(a) and (f) in the
Case Management Order provide that if you have a manifested injury as of
the
Effective Date, then you must file a lawsuit (unless one is already
pending) within sixty (60) days after your
opt out decision is final.
If you do not have a manifested injury as of the Effective Date, then you
must file
a lawsuit either:
(a). one hundred eighty (180)
days after your illness or symptoms of sufficient severity to support a
disease payment have become manifest or
(b). the fifteenth (15th) anniversary of the Effective Date, whichever
comes first.
Q3-13. "What is a "manifested injury?"
A manifested
injury means that you have an illness or symptoms of sufficient severity
to support a disease
payment under either Disease Option
1 or Disease
Option 2.
Q3-14. "If I do not have a manifested injury of disease as defined above,
but I have a ruptured Dow
Corning breast implant, what is the deadline for me to file a lawsuit
against DCC Litigations
Facility, Inc.?"
If you are not a minor, you must file a lawsuit within sixty (60) days
after your opt out decision is final.
Q3-15. "The Participation Form asks for information
about my implant and case. Do I have to fill
this out?"
Yes. This
information will assist the District Court and DCC Litigation Facility,
Inc. in identifying your
case and file. It may also be used to determine
if you have a presently manifested injury, which triggers
the time period
to file your lawsuit.
Q3-16. "The Participation Form has a place for my
attorney to sign. Does my attorney have to sign
this
form for me to file a lawsuit? What if (s)he won't sign?
If you are
represented by an attorney, consult with your attorney about your
decision. Your attorney is
supposed to sign the Participation Form stating
that (s)he has consulted with you. If your attorney refuses
to sign, you
can still submit it and it will be valid.
Q3-17. "Who will be given access to my decision
to file a lawsuit? Will it be kept confidential?"
The
Participation Forms for all claimants who reject the settlement benefits
will be filed in the United
States District Court for the Eastern District
of Michigan. They will become public documents.
They
will also be provided to the Physicians and Health Care Providers in
Classes 12 and 13, as well as to the
U.S. Government, as provided for in
the Settlement Facility Agreement.
Q3-18. "I read or received a copy of MDL Order
Number 44 and 44A, signed by U.S. District Judge
Sam C. Pointer. He dismissed my Dow Corning lawsuit in 1998. Does this
mean that I am not
eligible to participate in the Settlement Facility?
Judge Pointer
entered MOL Order 44 on April 6, 1998 and Order 44A on September 21, 1998.
These
Orders dismissed pending lawsuits filed by breast implant claimants
against Dow Corning and/or its
Shareholders. The cases listed in Orders
44, 44A and other orders, which are listed at the MOL 926
web site (www.fjc.gov/BREIMLIT/mdI926.htm),
were dismissed without prejudice. If you were a
plaintiff in one (1) of
the cases listed in either Order 44 or 44A. you are still eligible to
participate in the
Settlement Facility. However, if you reject the settlement benefits, you may have to re-file
a new lawsuit.
Read Section 3 of this Claimant Information Guide and the
Case Management Order Outline carefully. |
