Date: Mon, 3 Apr 2000 19:31:22 -0700

~~~ thanks to Toni Risch~~~

MDL926 Breast Implant Litigation

Home Page--last updated: April 01, 2000

Important Dates, Deadlines and Recent Developments:

4/1/00--Court enters Order 59, suggesting to Judicial Panel on

Multidistrict Litigation the remand of 13 cases on the terms specified in the order. To download copy of order, jump to ORDERS. This will be the last order entered in MDL926 by Judge Pointer. 4/1/00--It is anticipated that upon the retirement of Judge Pointer on April 3, 2000, District Judge Edwin L. Nelson of the Northern District of Alabama will be designated by the Judicial Panel on Multidistrict Litigation as the Transferee Judge of MDL926.

3/28/00 (revised)--To answer some inquiries about Orders 13 and 13A:

I do not expect the rebate checks to be mailed until May 22,2000. Requests for early payment will be denied.

In dividing (between an attorney and client) a rebate with respect to opt-out settlement assessments, it would be acceptable to make this division by considering what the attorney and client would have received if the settlement proceeds had been divided after only a 4% assessment rate under Order 13. Note that under Order 13 no more than half (i.e., 2%) can be treated as a litigation cost chargeable against the client's share of the settlement proceeds, with the balance of the assessment reducing theattorney's share of settlement proceeds..

3/15/00--After conferring with the parties, the court has concluded that the Claims Assistance office in Cincinnati should be closed at the end of April. Calls to that office after April 13th will be forwarded to the office of Plaintiffs Liaison Counsel in Birmingham.

3/13/00--Court enters Order 59B, remanding 66 cases to transferor courts subject to conditions stated in order. To download copy of order, jump to <ORDERS/orders.htm> ORDERS. Remaining open in ALN are 70+ cases (of the approxiimately 27,500 cases) that were filed in or removed to this court..

3/1/00--Judge Andrews advises that, as of this date, all appeals received by him prior to 1/15/00 have been finalized (except for those requesting reconsideration) and that there are 34 pending appeals (including those requesting reconsideration).

2/25/00--I have decided to retire from the bench after the end of March, and at that time another judge from this court will assume the role of "transferee judge" in MDL926. During the next few weeks I will be working on the outstanding motions in this litigation and hope to leave my successor with a relatively clean deck.

My work in this litigation certainly has been among the most challenging of the responsibilities I have had during my nearly 30 years on the bench. More than 27,000 breast-implant lawsuits were transferred to this court during the past 7+ years, and I expect that, when my retirement becomes effective, there will be fewer than 70 cases still pending in this court. Even so, there will still be much to be done, particularly in the continued oversight of the administration of the Revised Settlement Program over the next 10 years and in seeing that the Dow Corning Claims facility is "ready to go" for expeditious processing of claims if the Dow Corning reorganization/settlement plan is ultimately approved by the Eastern District of Michigan. Also, probably during April 00, the Escrow Agent will be involved in distributing the "rebate" checks for overpayment of the common benefit assessment fees previously paid at the 6% rate. (See Order 13A.)

I have appreciated the high degree of dedication and professionalism shown by so many of the thousands of attorneys who have been involved in this litigation. There is no way to list all those whose friendship and support have helped to make this task not merely bearable, but enjoyable--but I do want to express a special note of gratitude to Judge Ann Cochran, to Judge Frank Andrews, to Ed Gentle, to Professor Francis McGovern, to the folks at the Judicial Panel on Multidistrict Litigation and the Federal Judicial Center, and certainly to my law clerks who, over the years, have spent so many hours outside their regular duties in responding to telephone inquiries from those involved in the breast implant litigation.

Many thanks.

SCP

2/7/00--Court enters Order 59, suggesting to Judicial Panel on Multidistrict Litigation the remand of 70 cases on the terms specified in the order. To download copy of order, jump to ORDERS.

1/28/00--Court enters Order 55B, remanding 61 cases to transferor courts subject to conditions stated in order. To download copy of order, jump to <ORDERS/orders.htm> ORDERS.

1/7/00--ALN has posted on this website an Adobe "pdf" file copy of Judge Spector's 12/21/99 opinion on whether the Dow Corning Reorganization Plan and its Proponents comply with the Bankruptcy Code. For instructions and cavaeats regarding downloading this opinion, jump to Michigan.

12/28/99--Court enters Order 13A, determining that the "common benefit fund" has been/will be overfunded by the 6% assessment rate. Assessments on "opt-out" settlements after December 31, 1999, will be at the rate of 4%, and a plan will be implemented to refund to implant recipients and/or their attorneys the excess of assessments collected at the 6% rate. To download copy of order, jump to <ORDERS/orders.htm> ORDERS.

12/23/99--Court enters Order 57, calling for a status report by 1/31/00 on some 200+ cases in which the parties had earlier indicated that settlements were pending, and Order 58, calling for a status report by 1/31/00 on some 90+ other cases still pending in ALN. To download copy of orders, jump to <ORDERS/orders.htm> ORDERS.

12/16/99--Court enters (1) Order 52D, closing 418 listed cases on terms specified for "Category A" cases under Order 52C; (2) Order 55, suggesting to JPMDL the remand of 65 listed cases; and (3) Order 56, providing a form stipulation that parties can enter and avoid need for further MDL transfers to ALN. Court also indicates that it expects to enter an order before the end of 1999 that will reduce the common benefit fund assessment from 6% to 4%, with appropirate provisions for refunding to implant claimants or their attorneys the overpayment of previously paid assessments.

12/10/99--Dow update: the next step under the Dow reorgnization and settlement plan is the entry by Judge Denise Page Hood, USDJ for the Eastern District of Michigan, of a "Case Management Order". Judge Hood will also be the one to consider any appeals from Bankruptcy Judge Spector's 11/30 order confirming that plan. It is impossible at this time to provide a time- line or give predictions as to when the plan might become effective.

Although the Dow settlement plan cannot be fully implemented while appeals are pending, certain steps have been taken so that, if and when the plan is ultimately approved, the claims process for implant-recipients can move forward as promptly as possible. The Dow Claims Office will be at the same location as the Claims Office in Houston utilized for handling claims under the Bristol, Baxter, 3M, Union Carbide, Mentor, Bioplasty and Inamed/McGhan/CUI settlement plans. This will facilitate use of medical records, manufacturing proof, etc. that have already been submitted to the

Houston office. Also, Judge Mary Katherine ("Katie") Kennedy has been appointed and has commenced "start-up" work as Administrator-Designee and several of the employees in the RSP Claims Office will soon be reassignedto help her prepare for the activation of the Dow Claims Office (if and when the plan can be implemented).

12/8/99--INAMED settlement checks in the amount of $725 mailed by the Claims Office to the almost 45,000 qualifying claimants (or their attorneys) starting December 8, 1999. This is a one-time payment, paying to these claimants all of the approximately $32,400,000 available for distribution under the INAMED settlement, and no further claims can be honored by the Claims Office. All taxes and administrative expenses are being paid out of a portion of the interest earned on the settlement funds. Letters to claimants who did not qualify for a payment will be mailed tomorrow. Claimants should not make inquiries to the Claims Office unless they do not receive their check (or a letter explaining why they did not qualify for a distribution under the plan) by mid-January 2000. Claimants should understand they gain nothing by failing to negotiate their check; that is, they will still be precluded from pursuing claims against McGhan, Inamed, and CUI even if they don't negotiate their check.

12/2/99--Some minor corrections have been made by Judge Spector in five of the opinions issued by him on 11/30. The amended opinions (the three on cramdown issues, the one on classification, and the one on good faith) can be viewed by jumping to <MIE/mie.htm> MIE .

11/30/99--Judge Spector (Bankruptcy Judge, MIE) entered a series of orders and opinions confirming the jointly proposed Dow Corning reorganization and settlement plan. As a service, copies of these orders and opinions have been posted on this webpage and, by jumping to MIE can be viewed or downloaded. PLEASE NOTE: these are orders and opinions in the Bankruptcy Court in Michigan--do NOT send inquiries, etc. to this webpage or to USDC ALN or to Judge Pointer.

11/12/99--Order 52C entered, requiring plaintiffs in 460+ cases to file with ALN Clerk's Office a status report by 12/15/99 (or have case closed without prejudice to claims against Dow Corning/Dow Chemical and without prejudice to rights as a participant in RSP, FSP, and Inamed/McGhan/CUI settlements. To download copy of order, jump to ORDERS. To see most recent (@ 12/23/99) status of cases by jurisdiction, jump to Cases.

11/09/99--Claims Office advises that it is still on schedule for a distribution of Inamed/McGhan settlement checks by mid-December 1999.

11/2/99--Order 54C entered, remanding 42 cases to federal transferor courts after JPMDL remand order received. To download copy of order, jump to <ORDERS/orders.htm> ORDERS.

9/30/99--Copies of the official stenographic transcripts of the depositions of the National Science Panel, taken in April 1999, can now be downloaded without charge from this website. (These are large files and may take several minutes to download.) To download the transcript of Dr. Diamond's deposition, click on RTF (387KB) or WordPerfect (411KB) format. Dr. Hulka's deposition, click on RTF (1027KB) or WordPerfect (1069KB) format. Dr. Kerkvliet's deposition, click on RTF (690KB) or WordPerfect (738KB) format. Dr. Tugwell's deposition, click on RTF (1095KB) or WordPerfect (2039KB) format.For instructions on downloading the written report submitted by the panelists last year, jump to Report Persons wishing to purchase copies of other exihibits referred to during these depositions should make arrangements with Plaintiffs' National Liaison Office or Defendants' National Liaision Counsel.

The parties are continuing to work with the video company on completion of the videotapes of these depositions. These should be available (with a charge for the reproduction costs) later this year; more information will be posted when these videotapes are available.

9/28/99--Order 53B entered, remanding 468 cases to federal transferor courts after JPMDL remand order received. Also, Order 54A entered, suggesting to JPMDL the remand of 42 additional cases. To download copy of orders, jump to <ORDERS/orders.htm> ORDERS.

9/8/99--Two recent decisions by 11th Circuit Court of Appeals will be of interest to those involved in breast-implant litiigation.

* On July 19th, the court, in an unpublished per curiam decision, affirmed without elaboration the non-jury judgment of $757,000 in plaintiff's favor in Barrow v. MEC, a case appealed from the Middle District of Florida.

On August 18th, the court affirmed, in a decision to be reported, the granting of summary judgment in favor of defendants in Allison v. McGhan/3M (No. 99-8053), a case appealed from the Northern District of Georgia. In the Allison decision, the court held (1) that strict liability claims (filed in 1993, based on 1980 implants) were barred by Georgia's 10 year statute of repose, (2) that claims based on fraud/misrepresentation were precluded because the evidence showed there was no reliance on representations by the manufacturer, and (3) that District Judge Vining had not abused his discretion in excluding (after a 3-day "Daubert" hearing) the proposed testimony by three experts offered by plaintiff (Dr. Eric Gershwin, Dr. Douglas Shanklin, and a treating rheumatologist). The 11th Circuit viewed the case as not involving claims of local injury, but only claims relating to causation/exacerbation of Sjogren's syndrome and fibromyalgia.

7/20/99--On basis of evidentiary hearings, court dismisses Koken Co. Ltd. under Rule 12(b)(2) for lack of personal jurisdiction in the remaining 4 cases in which it remained as a named defendant. (In 27 other cases that had been set for hearing under Order 25A, the plaintiffs had voluntarily dismissed claims against Koken Co. Ltd.)

7/7/99--Order 47B entered, approving pro-rata distribution plan for INAMED SETTLEMENT FUND. To download copy of order, jump to ORDERS. Reminder: completed Claim Forms must be mailed in time to be received by Claims Office no later than October 1, 1999--late submissions will not be accepted, regardless of the reason. If you need a copy of the Claim Form, click on RTF or WordPerfect format.

6/11/99--Special (unnumbered) Order entered, reiterating how 6% special assessments imposed under Order No. 13 are to be treated when dividing proceeds between attorneys and clients in settlement of cases subject to Order No. 13. To download copy of order, jump to ORDERS.

5/25/99--Revised Settlement Program Update: By April 1999 the Claims Office had sent advance payments to almost 40,000 current claimants and roughly 41,000 other registrants who had filed acceptable proof of at least one implant covered by Bristol, Baxter or 3M. Approximately 17,000 of those participants have also received the $3,000 explantation benefit. Approximately 26,000 of those current claimants have chosen the Fixed Amount Benfit Schedule and been paid. Approximately 2800 current claimants have chosen the Long-term Benefit Schedule; over 7,000 of them have not yet chosen a benefit schedule. Over 800 Long-term Benefit Schedule claims have been approved and paid. Over 10,000 "other registrants" have accepted the offer to give up potential claims in the revised settlement program in exchange for a payment now of $2,500. The deadline for accepting that supplemental offer is June 15, 1999.

5/15/99--Claims Office Report:

Optout report @ 5/15/99. (Note: this represents a near-final report, subject only to a relatively few pending requests/appeals involving efforts to opt-out/opt-in after the established deadlines):

7,112 domestic implant recipents exercised "first round" optout rights during 1994 and did not rejoin the settlement class. (3,148

domestic optouts did elect to rejoin the settlement class)

12,255 domestic registrants exercised "second round" optout rights before being sent status letters

32,751 domestic registrants exercised "second round" optout rights after receiving their statusletters

10,115 had submitted satisfactory proof of Bristol, Baxter, or 3M implants

649 had submitted satisfactory proof only of post-8/84 McGhan implants

2,047 had not, according to their proof of manufacture, received an implant from any of the settling defendants (and hence were not eligible to participate in the RSP) 19,941 had not submitted any proof of manufacture (and hence it is unclear whether or not they were eligible to participate in the RSP)

2/1/99--Order 47A entered, approving INAMED Class Settlement. Next step (assuming no appeals) will be to determine a plan for distribution. To download copy of Order 47A and related documents, jump to <ORDERS/orders.htm> ORDERS.

1/19/99--Change of telephone numbers for Judicial Panel on MultiDistrict Litigation: effective this date, the voice telephone number of the JPMDL is 202-502-2800, and the fax number is 202-502-2888.

10/26/98--Order 44B, dismissing or administratively closing 12,000+ cases. For more information, jump to Orders. To see status of particular cases (current as of information received by court @ 11/3/98), jump to Cases.

10/7/98--Order 47, approving form of notice to be sent respecting proposed mandatory class settlement with INAMED, McGhan Medical, and CUI, and setting a fairness hearing for January 11, 1999. For more information, jump to <ORDERS/orders.htm> Orders.

New EMail address:--In providing information to court for updates to this webpage, attorneys should use my new email address:

Downloading Orders

To download significant MDL 926 orders and other materials, see Orders. You can download in either of two formats: WordPerfect or RTF (rich text format). Although most earlier orders in WordPerfect format have been saved in 5.1 format, later orders use the WordPerfect 6.0 format.

For names and addresses of federal and state court judges assigned coordinating responsibility for breast implant litigation in their jurisdictions, as well as information about Claims Office, Claims Assistance Office, etc., see <judges.htm> Judges.

For list of significant matters pending for ruling in MDL 926, see Pending Matters.

To view table showing case numbers in USDC ALN and federal transferor courts of cases transferred to USDC ALN, see Transferred Cases.

For cases recently tried or scheduled for trial in federal and state courts, see <trials.htm> Trials.

Web support for this page is provided as a service of the Federal Judicial Center, but the contents are solely the responsibility of U.S. District Judge Sam C. Pointer, Jr., Federal Courthouse, Birmingham, Alabama (205-278-1800), who is the Transferee Judge of MDL 926 (the Silicone Gel Breast Implant Products Litigation). Although accessible by all Internet users, this page is intended primarily as a means for providing information, including significant MDL 926 opinions and orders, to attorneys and to other federal and state court judges.

E-Mail suggestions by judges and lawyers for information to be added to this page should be sent to sam_pointer@alnd.uscourts.gov. Please do NOT use this E-Mail address for general comments or inquiries concerning breast-implant cases and claims, or to file documents with the court.

Federal courts can also send information through cc:Mail to Sam Pointer @~11DC-ALN-BIRMINGHAM. Content-Location: