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In re Settlement Facility Dow Corning Trust

March 25, 2010

IN RE: SETTLEMENT FACILITY DOW CORNING TRUST, JODI ISEMAN, APPELLANT.


The opinion of the court was delivered by: Denise Page Hood United States District Judge

Honorable Denise Page Hood

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

On February 17, 2009, Jodi Iseman filed a letter-appeal to this Court seeking review of the Claims Administrator's decision denying her Class 7 claim submitted before the Settlement Facility--Dow Corning Trust ("SF-DCT") pursuant to the Amended Joint Plan of Reorganization ("Plan") in the Dow Corning Corporation ("Dow Corning") bankruptcy action. Ms. Iseman does not indicate in her appeal that she sought review of the Claims Administrator's decision before the Appeals Judge.

On March 20, 2009, Dow Corning filed a Motion to Dismiss the Appeal of Jodi Iseman. No response was filed to the motion on behalf of Ms. Iseman.

Ms. Iseman claims she has a Bristol/Baxter implant with Replicon mammary prosthesis implanted on February 19, 1988. (Doc. No. 1, Appeal exhibits) She claims that she was "part of the Tort Claimant's Committee by 1994" and submitted proof of manufacturer to them in 1996. Ms. Iseman claims that by the time the manufacturer of Replicon was known to her, it was too late for her to register with the Multi-District Litigation 926 ("MDL-926") before the Northern District of Alabama. She claims that in order to have been a current claimant under MDL-926, she would have had to submit the manufacturer information of Replicon in 1996. Ms. Iseman claims that if the manufacturer did not clarify its products in a timely manner, she could not have met the marshaling requirements before the MDL-926 and under the Dow Corning Plan. Ms. Iseman did not learn the manufacturer of the Replicon prosthesis until 2002. (Doc. No. 1, Appeal exhibits)

The Claims Administrator of the SF-DCT denied Ms. Iseman's claim on August 4, 2008. The letter indicated that according to the MDL-926, Ms. Iseman was a non-current claimant or currently ineligible for benefits because she did not previously register with the MDL-926. Because Ms. Iseman can still submit a disease claim to the MDL-926 and if approved, receive payment from either the Fixed Amount Benefit Schedule or the Long-term Benefit Schedule, the SF-DCT Claims Administrator found that Ms. Iseman did not satisfy the marshaling requirement in SF-DCT Class 7 by the June 1, 2006 deadline and was ineligible for SF-DCT Class 7 benefits. (Doc. No. 1, Appeal exhibit, 8/4/08 letter)

For the reasons set forth below, Ms. Iseman's appeal must be dismissed.

II. ANALYSIS

Dow Corning argues that appeals to this Court by claimants before the SF-DCT are expressly and unambiguously barred by the Plan. Dow Corning cites cases issued by the Court holding that the Plan language does not permit individual claimants to appeal the decisions of the Claims Administrator or the Appeals Judge to this Court. No response to Dow Corning's motion was filed by Ms. Iseman.

Section 8.7 of the Amended Plan of Reorganization states that this Court retains jurisdiction to resolve controversies and disputes regarding the interpretation and implementation of the Plan and the Plan Documents, including the Settlement Facility and Fund Distribution Agreement ("SFA"), and, to enter orders regarding the Plan and Plan Documents. (Plan, §§ 8.7.3, 8.7.4, 8.7.5)

The Plan provides for the establishment of the SF-DCT, which is governed by the SFA. (Plan, § 1.131) The SF-DCT was established to resolve Settling Personal Injury Claims in accordance with the Plan. (Plan, § 2.01) The SFA and Annex A to the SFA establish the exclusive criteria by which such claims are evaluated, liquidated, allowed and paid. (SFA, § 5.01) Resolution of the claims are set forth under the SFA and corresponding claims resolution procedures in Annex A. (SFA, § 4.01)

The Plan establishes administrative claim review and appeals processes for Settling Personal Injury claimants. Any claimant who does not agree with the decision of the SF-DCT may seek review of the claim through the error correction and appeal process. (SFA, Annex A, Art. 8) A claimant may thereafter obtain review by the Appeals Judge. (SFA, Annex A, Art. 8) The Plan provides that "[t]he decision of the Appeals Judge will be final and binding on the Claimant." (SFA, Annex A, § 8.05) Claimants who seek review under the Individual Review Process also have a right to appeal directly to the Appeals Judge. The Plan provides that "[t]he decision of the Appeals Judge is final and binding on both Reorganized Dow Corning and the claimant." (SFA, Annex A, § 6.02(vi))

Generally, the provisions of a confirmed plan bind the debtor and any creditor. 11 U.S.C. ยง 1141(a). Section 1127(b) is the sole means for modification of a confirmed plan which provides that the proponent of a plan or the reorganized debtor may modify such plan at any time after confirmation of such ...


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