Petition for Writ of Certiorari — Pamela D. Sutherland, Petitioner v. DCC Litigation Facility, Inc.

No. 24In the

Supreme Court of the United States

PAMELA SUTHERLAND,

Petitioner,

v.

DCC LITIGATION FACILITY, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

James Leonard Elsman

Counsel of Record

Elsman Law Firm

725 South Adams Road,

Suite #182

Birmingham, MI 48009

(248) 766-5184

elsmanlawfirm@aol.com

Counsel for Petitioner

332764

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED:

Was a Jury Trial Properly Denied Petitioner, and What

Could a Jury Decide?

A. Did Dow pay $3.2 Billion, as it agreed to

pay?

B. Should Dow be discharged in Bankruptcy,

if it did not pay $3.2 Billion?

C. Did the Opt-out Plaintiff get a chance to

prove injury from Breast Implants?

D. If Dow delayed payment for 30 years,

can Plaintiff prove Dow paid nothing but

Investment-interest?

E. Are there Constitutional 14th Amendment

issues of “due process” and “equal protection,

plus 5th Amendment “taking”?

ii

PARTIES TO THE PROCEEDING

The original Plaintiff-Appellants were 4 opt-out ladies

with separate Case #s, and jurisdiction lay also in the Dow

Bankruptcy case (# 95-20512), but the Clerk’s office for

the Sixth Circuit appeal narrowed the caption to just Ms.

Sutherland # 30276.

The counsel representing both Petitioner and now,

Respondent, are the same as in the Trial Court and in

the Sixth Circuit Court of Appeals, and now in the Hon.

U.S. SUPREME COURT.

It should be said at this time and place that Petitioner

is not a corporation or business, and has no investors to

profit from the outcome of this litigation. Petitioner is a

woman who lives in Haysi, VA.

Respondent is DCC Litigation Facility, Inc., currently

absorbed by Dow, Inc.

iii

RELATED PROCEEDINGS

Pamela Sutherland v. DCC Litigation Facility, Inc.,

No 05-30276, U.S. Eastern District of Michigan, Southern

Division. Orders entered September 29, 2023.

Pamela Sutherland v. DCC Litigation Facility, Inc.,

No 23-1976, U. S. Court of Appeals for the Sixth Circuit.

Decision filed June 27, 2024, affirming Hon. Judge Hood.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 9

I.

LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . 9

II. FA C T UA L B A C K G R OU N D A N D

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE WRIT . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

v

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED JUNE 27, 2024 . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

EA STERN DISTRICT OF MICHIGA N,

SOU T HERN DI V ISION, FILED

SEPTEMBER 29, 2023 . . . . . . . . . . . . . . . . . . . . . . . .4a

vi

TABLE OF CITED AUTHORITIES

Page

CASE LAW

Daubert v. Merrell Dow Pharm.,

509 U.S. 579 (1993) . . . . . . . . . . . . . . . . . . . . . . 3, 4, 6, 7

Frye v. U.S.,

293 F. 1013 (1929) D.C. Circuit (1923) . . . . . . . . . . . . . 6

Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ruffin v. Mercury Records,

513 Fed. 2d 222 (6th Cir. 1975) . . . . . . . . . . . . . . . . . . 7

U.S. CONSTITUTION

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. Const. amend. VII . . . . . . . . . . 1, 2, 4, 7, 8, 10, 13, 14

FEDERAL STATUTES AND RULES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Federal Rules of Evidence, Rule 702 . . . . . . . . . . . . 3, 6, 7

OTHER AUTHORITIES

Declaration of Independence . . . . . . . . . . . . . . . . . . . 8, 13

1

OPINIONS BELOW

The Sixth Circuit’s decision (App. 1a-3a) is available at

2024 U.S. App. LEXIS 15910. The District Court Opinion

(App. 4a-11a) is available at 2023 U.S. Dist. LEXIS 176127.

JURISDICTION

THIS IS A TIMELY PETITION FOR CERTIORARI

TO THE U.S. SUPREME COURT, FROM AN OPINION

OF THE SIXTH CIRCUIT COURT OF APPEALS OF

JUNE 27, 2024, AND THE $300 FEE HAS BEEN PAID.

2 8 U . S . C . § 1 2 5 4 (1) P R OV I DE S U. S .

C ONGR E S SIONA L PER M I S SION F OR T H E

U.S. SUPREME COURT TO GRANT WRITS IN

CERTIORARI PETITION CASES.

STATUTORY PROVISIONS

NO STATUTORY PROVISIONS ARE RELIED

UPON IN THIS PETITION FOR CERTIORARI.

EXCEPT 28 U.S.C. § 1254(1) RE JURISDICTION,

referenced just above.

INTRODUCTION

This is a claim to respect what the Founders

established way back in 1791—Amendment VII to the U.S.

CONSTITUTION, i.e. the right of U.S. citizens to JURY

TRIAL in civil cases, long before the Civil War, and just

after the CONSTITUTION was enacted. Needless to say,

the CONSTITUTION is the most important document in

American Law, and most have pledged their allegiance

to it.

2

This current Petition is concurrent with a world

atmosphere where this Nation could well be destroyed by

Nuclear War in WW III (by Russia, China, Iran or others

in combination or alone), which our politicians take for

granted and talk openly about, especially in Presidential

Election years. (Of course, such events would preclude

this Hon. Supreme Court from even deciding on Writs of

Certiorari.)

And, further, when American politics are so raw that

even this U.S. Supreme Court is subject to revolutionary

change by various proposed means (replacing Members as

they die or resign by the Party in power; having Congress

“pack” the Court by adding more Members than the

current 9; and diluting the power of the current Court

by legislation and forcing reforms in the Ethics thereof ).

Despite such a hostile atmosphere, Petitioner relies upon

the current Court to remind America about the power of

the 7th AMENDMENT, which reads as follows and begs

to be recited in full:

“IN SUITS AT COMMON LAW, WHERE THE

VA LUE IN CONTROV ERSY SH A LL EXCEED

TWENTY DOLLARS, THE RIGHT TO TRIAL BY

JURY SHALL BE PRESERVED, AND NO FACT

TRIED BY A JURY SHALL BE OTHERWISE REEXAMINED IN ANY COURT OF THE UNITED

STATES, THAN ACCORDING TO THE RULES OF

THE COMMON LAW.”

HERE, does Ms. Sutherland receive her American

right or not? For some 30 years, Ms. Sutherland has

waited, while she was seriously injured by Dow silicone

breast implants, and American Justice has failed her.

3

Juries have been entrusted to decide FACTS for well

over 200 years in the jurisprudence of our young Nation,

and, surprisingly, it has not even been an issue in the

politics of our Nation. There are no street-demonstrations

with people carrying signs reading: “Abolish the Jury

system!!”. Americans get irate at Judges, but seldom at

a Jury of their peers.

It is far simpler to have Juries decide FACTS, than

for Judges to expose their multiple biases and motives,

oft still relying on the political and cultural groups that

appointed them. Judges also conflict with Judges in

different District courts or areas, causing “conflicts” in

adjudication, begetting more cost and delay. Juries do not

often “nullify” a just result, and even then, the Law has a

way of meting out Justice, as who can say “O.J.” got away

with something in the long-term?

Juries will always hear arguments and see facts from

both sides of the counsel-table, and then be instructed

on rules like FRE 702, plus the “Daubert-trilogy” (gatekeeper; relevance and reliability; scientific reliability), but

Jurors of our peers is what keeps the peace of American

politics, as what could be fairer than to have the “people”

decide.

A long history of American jurisprudence has proven

the wisdom of the Founders—juries of common citizens

have decided on billion-dollar business cases, as well as

the death penalty in criminal cases. Those who protest

Juries have a range of remedies, and jury-verdicts are

seldom without a second bite at the apple.

4

The original Defendant was Dow-Corning, but such

corporation has been dissolved by Dow & absorbed by

Dow, Inc., as a wholly-owned entity. Garan Lucow Miller

is Respondent counsel, unless other counsel is added.

Likewise, her sole counsel is a sole proprietorship and not

a corporation of any type.

There are no known other lawsuits by this counsel

for Ms. Sutherland, or via other counsel on issues of Dow

cheating re the $3.2 Billion owing and unpaid; cheating

re the investment interest-earned issue of delay; and,

last, re the issue of no Jury being allowed under the 7th

Amendment. Other counsel may have represented her

on different issues in over 30 years of litigation. Many

appellate cases were generated by silicone breast implants.

Re the 7th Amendment issue, trial judge, the Hon. DP

Hood did not mention it, as she thought the “Daubert” case

would suffice to dismiss cases; the Sixth Circuit never had

it occur to their minds in a supervisory role and again,

“Daubert” sufficed.

Petitioner emphasizes that “facts” and “common

sense” should govern, as the “law” is elusive and subject

to change (see the “abortion” and “school integration”

cases, for examples).

It is a FACT that all counsel in this case took an OATH

in Michigan that read: “I support the Constitution of the

U.S.A. and the State of Michigan.” Further, Michigan

lawyers, upon admission, say: “I will never reject, for

any consideration personal to myself, the cause of the

defenseless or oppressed, or delay any cause for lucre or

malice. . . .”

5

This counsel has never charged nor received a dollar

for representing Ms. Sutherland in almost 30 years of

service.

Dow is a multi-billion-dollar company per-annum

(over 50 billion dollars in sales and operating in over 150

countries, with a checkered history of injuring people,

e.g. over 500,000 were killed or injured in Bhopal, India

by Dow gases and Dow has not been a great citizen in the

USA—it polluted the river in its hometown of Midland,

MI and polluted our soldiers in Viet Nam with Napalm

and Agent Orange. (See our Sixth Circuit Brief for

further details of Dow’s rogue behavior, including USA

tax evasion). Many international movies have focused on

the damage caused by chemical companies—see “Erin

Brockovich” in 2000 and an Indian film in 1999 “Bhopal

Express”.

Dow is no angel, and they have so far skirted major

responsibility in the USA courts.

Petitioner also wishes to represent the Class of 170,000

women who were original Claimants against Dow. Since

Dow paid only $1.7 Billion of the agreed $3.2 Billion,

there will be $1.5 Billion more to pay those who settled in

Bankruptcy and those who opted-out. All would benefit

from Dow’s cheating for at least $1.5 Billion, and more if

“interest-earned” is understood, and exemplary damages

awarded. At, say, 5% interest-earned for 30 years, Dow

would have over $5 Billion to pay injured women who claim,

if they are alive, or their estates and heirs, all because of

Dow silicone breast implants injuring women.

6

If Petitioner is granted Certiorari, there will not be

riots in the streets. The Republic will remain, and the

American people will note that the CONSTITUTION

is taken seriously by the Court. Indeed, the common

man and woman will know that the Courts bend over

backwards to protect the poor and sick from the power

of corporations and their money and lobbyists.

Also, a strong ruling by the Supreme Court in favor

of the Jury System will tend to consolidate a single law

standard in the whole USA regarding evidence, as some

State courts, surprisingly, are still using the old FRYE

V. U.S. decision, which was issued in 1923, 293 Fed. 1013,

over 100 years ago. American Jurors should have firstchoice at the evidence of experts. Such works for good,

and is provided for in the U.S. CONSTITUTION.

Of course, Petitioner does not contend that all scientific

expert testimony should be admitted at Trial, but Judge

Hood in the E.D. of Michigan Federal Court did not fairly

decide or explain the matter. FRE 702, as amended, was

not in effect until Dec. 1, 2023, but Petitioner is content,

for argument, to be governed by the current FRE 702 on

evidence presented to a Jury of her peers.

DAUBERT V. MERRELL DOW was granted Certiorari

in 1993. Later, KUMHO TIRE V. CARMICHAEL tried

to set guidelines for Federal Judges. But, still further,

FRE 702 was amended to change the same by imposing a

“preponderance of the evidence” standard on experts, and

“ . . . whether the bounds of what can be concluded from a

reliable application of the expert’s basis and methodology

. . . ” Those words were an attempt to clarify allowance of

expert testimony, but God help us, ambiguous language

7

does not solve the problems of the human race, but only

confuses such the more. Better to have a Civil Jury decide,

as AMENDMENT VII OF THE U.S. CONSTITUTION

guarantees. The Founders had great wisdom.

“Juror nullification” is not a proper subject for this

case, as this case involves the right to a civil jury, and

not a criminal case, where cases like O. J. Simpson are

oft pointed out by the public. Cases on criminal law are

concerning AMENDMENT VI, not AMENDMENT VII.

It is important in this present case to take judicial

notice that Dow promised to pay the gargantuan amount

of $3.2 Billion for its liability to get its subsidiary of

that time, out of Bankruptcy (Dow-Corning). In law

school torts class, we all learned a phrase: RES IPSA

LOQUITUR (the thing speaks for itself, i.e. Dow is guilty

as sin for $3,200,000,000). Expert testimony is not needed

re liability!!! The dollars speak loudly for Dow’s liability,

and Ms. Sutherland should be allowed to go to Trial on

merely her damage proofs. Why are we even talking about

FRE 702, or DAUBERT’S kin re liability?

It should be mentioned that Federal Judges have

another weapon to circumvent the rights of Americans

under the 7TH AMENDMENT, i.e. by ruling against

a Jury Verdict via a fancy Latin language phrase: NON

OBSTANTE VERDICTO, as happened to be used against

this very Counsel in RUFFIN V. MERCURY RECORDS,

where a quartet of Detroit African-American ladies sought

to emulate the success of the “Supremes” singers, and

the Jury gave them some $175,000, and the Trial Judge

thought he was smarter than the Jury. (Judge Joiner was

criticized on appeal for not specifying his reasons, but

8

those 4 ladies left Court with nothing, and went back to

their housing-project in the slums of Detroit, after such

an injustice.)

As the founders told us, stay with the jury system,

and America will have a peaceful and happy public, with

respect for government. Do not let judges interfere, except

in unusual circumstances.

T H E J U LY 4 , 17 76 “ DEC L A R AT ION OF

INDEPENDENCE”

Because this Appeal emphasizes its basis in the “U.S.

CONSTITUTION, AMENDMENT 7TH”, the Fourth of

July “DECLARATION OF INDEPENDENCE” should

not be neglected re the importance of the right of civil

jury trial:

It is very interesting and important that one of the

Grievances against the very King of England reads in a

way surprising, since England is now our closest and most

important international friend of America. That Grievance

reads as it was written so long ago:

“For depriving us, in many Cases, of the Benefits of

Trial by Jury . . . ”

The Signers of such Document must have thought such

important in the extreme, as they pledged their very “. . . .

Lives, our Fortunes, and our sacred Honor. . . . ” (initial

caps in the original document). Would any of us say and

do that today?

9

Note, also, that in this most important War that

Americans ever fought (for our very Independence as a

sovereign Nation), it involved the Right to Jury Trial, a

focus we seldom appreciate, until it is denied and taken

away. Yes, it was signed by many iconic Americans with

much to lose, if the War was lost—-Ben Franklin; both

John and Sam Adams; Thomas Jefferson; John Hancock;

et al, the names of our original Founders. Today, one

wonders if men and women are so brave to sign their own

death-warrant for Treason, since that would be the penalty

if they were apprehended by the British troops, in a War

of no assured outcome. Indeed, George Washington had

an untrained and rag-tag Army of volunteers for Winter

fighting, yet the rebels closed the “Declaration” with “ . . .

a firm Reliance on the Protection of divine Providence,”

(initial caps in the original).

STATEMENT OF THE CASE

I.

LEGAL BACKGROUND.

This Case arose in the Federal District Court for

the Eastern District of Michigan, where Judge Denise

Page Hood has consolidated, legally or not, all litigation

surrounding women being poisoned in their breasts

and bodies by leaking silicone (by the inner gel and

outer shell) breast implants, all for the usual purpose of

enlarging or refiguring natural breasts. Ms. Sutherland

claims damages not unlike many of the original 170,000

claimants—lupus; atypical connective tissue disease;

Reynaud’s disease; and possible cancer, et al, plus physical

and mental pain and suffering.

10

Most of the Claimants chose to accept that their

Claims would be paid out of the $3.2 Billion Bankruptcy

Settlement, but the Court’s own records show that Dow

(Dow-Corning was absorbed by big-daddy Dow, Inc.,

when Dow bought- out Corning Glass over a decade ago.)

Payment was made via a grid-system, with the more

serious injuries being paid the most money. Such system

was still operating one year ago, but was coming to an

end, with only $1.7 Billion being paid-out.

Petitioner Sutherland chose to opt-out of the

Settlement, sure that she would get a Federal Jury to

decide her Case. In fact, we know of not one case ever

tried by Jury Trial re the “opt-outs” by Judge Hood. As

the years dragged on, many women lost interest in their

Claims and could not afford lawyers. Even most lawyers

did not wish the time and cost of a lawsuit against the

wealthy Dow interests.

Judge Hood told Petitioner in open court to get

“experts” for her case. Ms. Sutherland spent big bucks on

experts, at least 3 or 4, but Judge Hood did not like their

Deposition testimony and dismissed the case ultimately.

Plaintiff Sutherland filed a Motion to re-open her

case, and Judge Hood dismissed the Motion on technical

grounds, never mentioning that Petitioner had the right to

a Jury Trial. Appeal was taken to the SIXTH CIRCUIT,

and it affirmed Judge Hood, also never mentioning that a

Jury Trial was a right of Ms. Sutherland. Ms. Sutherland

thus brings this request for a WRIT TO THE U.S.

SUPREME COURT ON THE GROUNDS SHE NEVER

HAD A CHANCE TO PUT HER CASE IN FRONT OF

A JURY, UNDER THE 7th AMENDMENT.

11

II. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY:

Dow-Corning (which no longer exists, as it was

absorbed by DOW, INC.) was a corporation located near

Midland, Michigan, which is the founding City and HQ

of just about all Dow entities today, except for overseas

subsidiaries. Plaintiff has always lived in the coal-mining

mountains of west Virginia. She originally brought suit

in the States on the Eastern seaboard, but somehow got

transferred to the E.D. of Michigan in front of Judge

Hood. Even the Dow interests are not located in the E.D.,

but in the Northern District of Michigan, so that also

begs explanation. In any event, diversity of citizenship

was probably behind the forum choice, but this Counsel

was not involved until Ms. Sutherland sought an attorney

near Detroit to represent her in multi-district litigation,

before Judge Hood.

Dow-Corning filed for Bankruptcy protection in Case

# 95-20512, and Judge Hood supervised that aspect, as

well, never having been a Bankruptcy Judge, even though

Ms. Sutherland was greatly inconvenienced to travel to

Detroit by car from her home in Haysi, Virginia., only

to be “pressured” by some expert college law school

professor who Judge Hood appointed to arrange as many

settlements of cases as he could of the “opt-out” cases,

which, let’s face it, were a cog in the wheels of wrapping up

the “Dow matter”. (No criticism of the Duke Law professor

is meant—he did what Judge Hood wanted him to do, i.e.

try to avoid Jury Trials by “low-balling” settlements.

This Counsel saw him bat 0 for 4, as Dow did not want

to pay even $75,000 per lady injured. The professor got

paid for his time, travel, hotel and meals, plus added to

12

his Resume. (This Counsel only settled one case of many,

and that was because Dow wanted to make the woman

happy for chump-change, i.e. she was a lawyer.)

Finally, Judge Hood dismissed the cases of all

remaining ladies represented by this Counsel, because

they would not settle, and their experts (from 3-5) were

not pleasing to Judge Hood. The sad irony is that if Dow

had paid the full $3.2 Billion, which they agreed to setaside and pay, they would have had plenty of money to pay

Bankruptcy Claimants and the “opt-outs”, as they paid

only $1.7 Billion, leaving $1.5 Billion to pay Ms. Sutherland,

and other opt-outs, and legitimate Bankruptcy claimants.

“C’EST LA VIE”; “ASI ES LA VIDA”; SUCH IS LIFE,

when large corporations are not controlled from their

animal impulses to profit and prevail over weaker citizens.

Dow, Inc. controls over 100 subsidiaries world-wide,

and is the giant of U.S. chemical companies, with yearly

sales in the $50 Billion Dollar + range per-annum, and

operations in over 180 countries, and over 6,000 different

products. Only DuPont and Monsanto can be mentioned in

the same breath. The long-lasting rogue behavior of Dow

has been recited in our 6th Circuit Brief, in detail. Dow has

killed and wounded humans in the past (roughly 1,000,000

in Bhopal, India, alone); been accused of U.S. tax fraud;

and supplied products for both Nuclear and Chemical

warfare. Those are background facts, painting a picture of

what a lone Virginia mountain lady is up against, yet she

perseveres, having faith in American justice, even unto

the highest Court in the land, THE UNITED STATES

SUPREME COURT.

13

REASONS FOR GRANTING THE WRIT

I. This is a paradigm case: Ms. Sutherland is a poor

woman from the coal mining area of western Virginia,

whose husband worked in the mines. Dow is a gigantic U.S.

Corporation, which generally gets its way in American

law, which tends to favor the rich and powerful, with the

best lawyers, and lobbyists in Washington, D.C. (let not

the thought of “David & Goliath” come to mind.)

II. Ms. Sutherland has lost all cases and hope so far,

and can only depend upon the U.S. Supreme Court to give

her justice, after 30 years of seeking such. She is old and

sickly, herself, and her counsel is 88 years old, and a solo

practitioner, though both he and his client were 30 years

younger when this litigation began. At base, does the U.S.

Constitution of 1789 mean anything in 2024, along with

the 7th Amendment re the right of an American to a civil

jury trial.

III. When modern times bring the world to new

inventions (AI), but closer to W.W. III and chaos, it is time

for the U.S. Supreme Court to remind all men and women

of the world that Americans still respect the dignity and

wisdom of the “old” “Declaration of Independence” and

“the U.S. Constitution, Amendment 7th”, re the right to

a civil trial by a jury of your peers.

ENOUGH SAID!!

14

CONCLUSION

We simply pray this Hon. U.S. SUPREME COURT

to consider granting a CERTIORARI WRIT, so that a

Jury Trial can be considered of her peers, in the U.S.

District Court, preferably closest to the convenience of Ms.

Sutherland, so to allow adherence to the 7th Amendment

to the U.S. CONSTITUTION, which was, for some reason,

overlooked by previous Courts and Appeals. This does not

grant a win for Petitioner, nor a loss for Respondent—but,

only a Jury Trial in the future.

Respectfully submitted,

James Leonard Elsman

Counsel of Record

Elsman Law Firm

725 South Adams Road,

Suite #182

Birmingham, MI 48009

(248) 766-5184

elsmanlawfirm@aol.com

Counsel for Petitioner

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED JUNE 27, 2024 . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

EA STERN DISTRICT OF MICHIGA N,

SOU T HERN DI V ISION, FILED

SEPTEMBER 29, 2023 . . . . . . . . . . . . . . . . . . . . . . . .4a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED JUNE 27, 2024

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No. 23-1976

PAMELA D. SUTHERLAND,

Plaintiff-Appellant,

v.

DCC LITIGATION FACILITY, INC.,

Defendant-Appellee.

June 27, 2024, Filed

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN

OPINION

Before: CLAY, McKEAGUE, and READLER, Circuit

Judges.

PER CURIAM. In “one of the world’s largest mass

tort litigations,” scores of women sued Dow Corning

claiming that its silicone breast implants caused their

2a

Appendix A

health problems. In re Dow Corning Corp., 86 F.3d 482,

486 (6th Cir. 1996), as amended on denial of reh’g and

reh’g en banc (6th Cir. 1996).1 Hundreds of thousands

ultimately joined in a class settlement. Id. at 485-86.

Others (still thousands) opted out and pressed separate

lawsuits. Id. at 485.

Pamela Sutherland was one of those who opted out.

But in the end, her claim failed. In 2016, the district court

granted Dow summary judgment because it said Ms.

Sutherland couldn’t prove that Dow’s implants caused her

injuries. Though she offered some proposed experts on

that issue, the court excluded them under Federal Rule of

Evidence 702 as unreliable. Six years later, Ms. Sutherland

asked the court to alter, amend, or provide relief from that

judgment under Federal Rules of Civil Procedure 59(e),

60(b)(2), 60(b)(3), and 60(b)(6). She also requested a “final

accounting” of the settlement. R.128 at PageID 6387. She

thought that relief was appropriate because (1) the United

States Food and Drug Administration had recently found

cancer “in the scar tissue of silicone breast implants,” and

(2) information suggested that Dow never fully paid the

class settlement. Id. at 6388.

The district court denied Ms. Sutherland’s requests

for three reasons. One: her motions under Rules 59(e),

60(b)(2), and 60(b)(3) were all untimely. Ms. Sutherland

1. We have explained the factual background of these cases

in many other published and unpublished opinions. See, e.g., In re

Dow Corning Corp., 778 F.3d 545, 547-48 (6th Cir. 2015); Gatza

v. DCC Litig. Facility, Inc., 717 F. App’x 519, 520 (6th Cir. 2017).

We recount only basic facts here.

3a

Appendix A

had only 28 days to file her motion under Rule 59(e) and one

year under the others. Two: she had not shown exceptional

or extraordinary circumstances, as required by Rule

60(b)(6). See R.138 at PageID 6480 (citing Buck v. Davis,

580 U.S. 100, 123, 137 S. Ct. 759, 197 L. Ed. 2d 1 (2017),

and Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th

Cir. 1990)). Three: she was not entitled to an accounting

concerning the settlement because she had opted out.

Ms. Sutherland appeals that ruling. She doesn’t,

however, explain where it went wrong. She instead

repeats her theory as to why she believes Dow shorted

the settlement class’s payout and cites next to no

legal authority. Particularly given the fact that she is

represented by counsel, her failure to substantively

address the district court’s analysis is fatal to her appeal.

See United States v. Rich, 14 F.4th 489, 2021 WL 4144059,

at *40 (6th Cir. 2021); Vander Boegh v. EnergySolutions,

Inc., 772 F.3d 1056, 1063 (6th Cir. 2014). But even if we put

that oversight aside, we don’t see any grounds to reverse.

The district court correctly described the applicable law

and properly applied it to the facts.

We affirm.

4a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN,

SOUTHERN DIVISION,

FILED SEPTEMBER 29, 2023

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 05-30276

PAMELA D. SUTHERLAND,

Plaintiff,

v.

DCC LITIGATION FACILITY, INC.,

Defendant.

Honorable Denise Page Hood

September 29, 2023, Decided;

September 29, 2023, Filed

5a

Appendix B

ORDER DENYING MOTION TO REOPEN CASE

AND DENYING MOTION FOR CASE REVIEW,

REVIVAL AND FINAL ACCOUNTING

(ECF Nos. 128 and 134)

I.

BACKGROUND1

This matter is before the Court on two motions filed

by Plaintiff Pamela D. Sutherland: Renewed Motion to

Reopen Case, filed September 16, 2022 (ECF No. 128) and

Motion for Case Review, Revival and for Final Accounting,

filed October 31, 2022 (ECF No. 134). Briefs have been

filed. For the reasons set forth below, the motions are

denied.

On September 29, 2016, the Court entered an Order

and Judgment dismissing Sutherland’s case against

Defendant DCC Litigation Facility, Inc. (ECF Nos. 119,

120) Sutherland appealed the Order and Judgment, which

was affirmed by the Sixth Circuit Court of Appeals. See,

Gatza, et al. v. DCC Litig Facility, 717 F. App’x 519 (6th

Cir. 2017). The United States Supreme Court denied the

petition for writ of certiorari. See, Gatza, et al. v. DCC

Litig. Facility, Inc., 583 U.S. 1157, 138 S.Ct. 1177, 200

L. Ed. 2d 316 (2018)(mem). Almost six years later after

the entry of Judgment, as set forth above, Sutherland filed

the Motion to Reopen Case, followed by a Motion for Case

Review, Revival and for Final Accounting.

1. The following published opinions provide a detailed history

of this bankruptcy action: In re Dow Corning Corp., 255 B.R. 445

(E.D. Mich. 2000), 86 F.3d 482 (6th Cir. 1996), 113 F.3d 565 (6th Cir.

1997), 280 F.3d 648 (6th Cir. 2002), and 456 F.3d 668 (6th Cir. 2006).

6a

Appendix B

Sutherland opted out of the settlement process before

the Settlement Facility-Dow Corning Trust (“SF-DCT”)

as provided under the Dow Corning Amended Joint Plan

of Reorganization (“Plan”). The Effective Date for the

confirmed Plan was June 1, 2004. (April 2, 2004 Order

Establishing Effective Date, Bankruptcy Case No. 9520512) Pursuant to the Plan, claimants who choose to

litigate their claims must file claims against the DCC

Litigation Facility (“Litigation Facility”). (Plan, Art. 5.4,

6.1)

Choosing to litigate her claims, Sutherland filed the

instant action claiming various illnesses and medical

conditions, including: lupus; atypical connective disease;

Reynaud’s disease; vomiting; trouble walking; physical,

mental and emotional diseases. Sutherland claimed that

these conditions were caused by the Surgitek gel-filled

silicone breast implants implanted in 1988 and explanted

in 1992. Sutherland asserted that her illnesses and medical

conditions were caused by the silicone gel and/or elastomer

used by the manufacturer of the Surgitek implants which

Surgitek claimed were manufactured by Dow Corning.

(Complaint, ECF No. 22 and Motion/Questionnaire, ECF

No. 66, PageID.2918-2925)

On September 29, 2016, the Court granted DCC

Litigation Facility’s Motion for Summary Judgment,

finding that “summary judgment must be granted in the

Litigation Facility’s favor since Sutherland is unable to

present any expert who will testify that Dow Corning

silicone cause diseases or other symptoms.” (ECF No.

119, PageID.6289)

7a

Appendix B

II. ANALYSIS

A.

Motion to Reopen Case

Rules 59 and 60 of the Rules of Civil Procedures

govern the motions since a final Judgment has been

entered in this matter. Rule 59(e) provides that any motion

to alter or amend a judgment shall be filed no later than

28 days after entry of the judgment. Fed. R. Civ. P. 59(e).

The Local Rules of the Eastern District of Michigan

provides that any motion to alter or amend judgment

must be filed within the time allowed by Federal Rule of

Civil Procedure 59(e). E.D. Mich. LR 59.1(a). The present

motions seeking to reopen the case or to further review the

case, are untimely under Rule 59(e) and LR 59.1(a) since

the motions were filed about six years after the entry of

the Judgment in 2016.

Rule 60(b) provides that, “the court may relieve a

party or its legal representative from a final judgment,

order, or proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence that, with reasonable diligence, could

not have been discovered in time to move for a new trial

under Rule 59(b); (3) fraud (whether previously called

intrinsic or extrinsic), misrepresentation, or misconduct

by an opposing party; (4) the judgment is void; (5) the

judgment has been satisfied, released, or discharged, or

if based on an earlier judgment that has been reversed or

vacated, or applying it prospectively is no longer equitable;

or (6) any other reason that justifies relief. Fed. R. Civ.

P. 60(b).

8a

Appendix B

There are time limitations governing the filing of a

Rule 60(b) motion. Rule 60(c) states that a motion under

Rule 60(b) “must be made within a reasonable time—and

for reasons (1), (2), and (3) no more than a year after the

entry of the judgment, order or the date of the proceeding.”

Fed. R. Civ. P. 60(c). In any circumstances, motions under

subsections (1), (2) and (3), cannot be filed more than one

year after the judgment was entered. Fed.R.Civ.P. 60(c).

Under the catch-all provision in subsection (6), the Sixth

Circuit has held that a Rule 60(b)(6) motion must be based

upon some reason other than those stated in subsections

(1) to (5). Smith v. Secretary of Health and Human

Services, 776 F.2d 1330, 1333 (6th Cir. 1985). Relief

under Rule 60(b)(6) is available only in “extraordinary

circumstances.” Buck v. Davis, 580 U.S. 100, 123, 137

S. Ct. 759, 197 L. Ed. 2d 1 (2017)(citation omitted); Olle v.

Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)

(citations omitted). The party seeking relief under Rule

60(b) bears the burden of establishing grounds for such

relief by clear and convincing evidence. Info-Hold, Inc. v.

Sound Merchandising, Inc., 538 F.3d 448, 454 (6th Cir.

2008). The interests of finality of judgments and judicial

economy outweigh the value of giving a party a second

bite of the apple by allowing a Rule 60(b) motion after an

appeal period has run. Pierce v. United Mine Workers of

America Welfare, 770 F.2d 449, 451-452 (6th Cir. 1985).

“[T]he decision to grant Rule 60(b)(6) relief is a case-bycase inquiry that requires the trial court to intensively

balance numerous factors, including the competing

policies of the finality of judgments and the incessant

command of the court’s conscience that justice be done

in light of all the facts.” Jones v. Bradshaw, 46 F.4th 459,

482 (6th Cir. 2022)

9a

Appendix B

An appeal from an order denying a civil Rule 60(b)

motion does not bring up for review the underlying

judgment disposing of the case. Browder v. Dir., Dep’t of

Corrs., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521

(1978); Hood v. Hood, 59 F.3d 40, 42 (6th Cir.1995). Rather,

the inquiry is limited to “whether one of the specified

circumstances exists in which [the plaintiff ] is entitled

to reopen the merits of his underlying claims.” Feathers

v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir.1998).

Based upon the Court’s reading of Sutherland’s motion,

the first issue raised is that based on a September 9, 2022

report by Reuter; the U.S. Food and Drug Administration

(“FDA”) announced that cancer has been found in the

scar tissue of silicone breast implants. (ECF No. 128,

PageID.6388) It appears Sutherland is seeking to reopen

her case either based on newly-discovered evidence under

Rule 60(b)(2) or the catch-all provision under Rule 60(b)(6).

Rule 60(b)(2), along with subsections (b)(1) and (b)(3) are

unavailable since any motions under these provisions must

be filed within one year from the entry of judgment, which

in this case was September 29, 2016, about seven years

ago. Rules 60(b)(4) (the judgment is void) and ((b)(5) (the

judgment has been satisfied, released, or discharged) also

do not apply since there is no showing that the judgment

is otherwise invalid.

As to the catch-all provision under Rule 60(b)(6), the

Court finds that noting a finding by the FDA that cancer

has been found in the scar tissue of silicone breast implants

does not support extraordinary relief to reopen the case.

There is no evidence presented linking the recent FDA

10a

Appendix B

findings to the implants which were before this Court,

other than a Reuter report. The Court’s Order dismissing

this case was based on the failure to present competent

causation testimony. The Reuter report on the FDA’s

findings does not support exceptional or extraordinary

relief to reopen the case. Sutherland has not met her

burden for the case to be reopened.

B. Motion for Case Review and Revival and for

Final Accounting

Sutherland asserts that Dow Corning promised to pay

women $3.2 Billion, but that it has paid much less. The

Dow Defendants respond that Sutherland chose to resolve

her claims via litigation and not through settlement,

therefore she is not entitled to any further case review

or final accounting.

As noted above, Sutherland opted out of the settlement

process before the SF-DCT as provided under the Plan,

instead choosing to litigate her claims against the

Litigation Facility. There is no provision under the Plan

that allows a claimant who chose to litigate claims to be

able to later obtain further review of the case before the

SF-DCT. Sutherland is bound by her choice to litigate her

claims before the Litigation Facility and is not entitled

to any review under the settlement process before the

SF-DCT.

11a

Appendix B

III. CONCLUSION/ORDER

For the reasons set forth above,

IT IS ORDERED that the Renewed Motion to Reopen

Case (ECF No. 128) is DENIED.

IT IS FURTHER ORDERED that the Motion for

Case Review and Revival and for Final Accounting (ECF

No. 134) is DENIED.

S/ Denise Page Hood

DENISE PAGE HOOD

UNITED STATES DISTRICT JUDGE

DATED: September 29, 2023