Kramer Levin Wins Affirmance of $30 Million in Payments to Injured Breast Implant Claimants

A federal appeals court has affirmed a decision by a Michigan federal court ordering the Dow Corning Settlement Facility to issue approximately $30 million in “premium” payments to thousands of breast implant recipients who settled their claims against Dow Corning. The payments are part of a $3 billion settlement of Dow Corning’s mass tort bankruptcy that Kramer Levin, as counsel to the Tort Claimants’ Committee, helped negotiate and implement in 2004. The settlement resolved hotly contested disputes over the harms caused by breast implants and provides base payments of up to $250,000 for disease claims and $20,000 for rupture claims to women who can document that they had Dow Corning breast implants. The settlement also provides that, if there is adequate funding, claimants will receive premium payments of an additional 20 percent for those with approved disease claims and $5,000 for approved rupture claims.

Based on an earlier ruling approving 50 percent premiums to claimants with approved disease and rupture claims, the Settlement Facility has already paid out more than $90 million to injured claimants. Those payments were temporarily halted after the Sixth Circuit Court of Appeals ruled that it should have been based on a higher degree of funding certainty. Following remand proceedings, the U.S. District Court for the Eastern District of Michigan ruled last year that the higher standard had been met and approved the completion of 50 percent payments – expected to total approximately $30 million through the end of the settlement program in 2019.

On December 13, the Sixth Circuit rejected Dow Corning's appeal of that ruling, holding that the District Court was not clearly erroneous in determining that adequate funding existed to pay all future base claims as well as 50 percent premiums. This ruling permits the Settlement Facility to resume premium payment as soon as January. The other half of the premium payments will be made upon the conclusion of the settlement program, which stops taking claims next June.