OPINION OF THE COURT
Goldstein, J.
At issue here is whether the trial court properly relieved the infant plaintiff’s natural guardian, Mary Ann Stahl, and replaced her with an attorney, Harvey B. Besunder, as court-appointed guardian ad litem, for the purpose of approving a settlement of the infant plaintiffs claims. We hold that it did not.
The infant plaintiff was born on February 1, 1977. An Apgar score of nine was recorded one minute after birth and the optimal Apgar score of 10 was recorded five minutes after birth. Two weeks later, the infant was diagnosed as suffering from an infantile impetigo. His pediatrician prescribed pHisoHex, an antibacterial skin cleanser, to be rubbed into the blisters on the skin with each diaper change and then rinsed off. The infant’s mother, Mary Ann Stahl, claims that within 48 hours after she started applying pHisoHex the baby became very irritable, with greenish stools and flaking skin. Mrs. Stahl used the entire 16-ounce bottle within nine days and thereafter renewed her prescription.
On March 1, 1977, the infant’s pediatrician diagnosed the infant’s condition as diaper rash, but Mrs. Stahl claims he urged her to continue the use of pHisoHex. The infant alleg[41]*41edly continued to be irritable and have loose, foul-smelling, green-colored stool. Unusual body movements, such as twitching, stiffening, and staring were observed, and the baby was diagnosed with seizures on June 30,1977.
At the age of one year, mental retardation was diagnosed, and institutionalization was recommended for the infant. Mrs. Stahl decided to care for the infant at home, attending to his needs and administering oxygen when necessary. By 1986, Mrs. Stahl was unable to provide the infant with the care he required, and he was placed in Cumberland Hospital in Virginia, one of few hospitals capable of tending to his needs. He was transferred to the Suffolk Child Development Center in 1989.
This action to recover damages for the infant’s personal injuries, and asserting a derivative claim on behalf of his mother Mary Ann Stahl, was commenced in March 1984, and the trial commenced in March 1994.
At the time of trial, the infant was 17 years old, but functioned at the mental age of a child three and one-half years old. He required nursing care around the clock, as well as assistance in eating, dressing, and toileting, and will require such assistance for the remainder of his life. Although he is unable to speak, he has learned to communicate simple words with sign language, and has also learned to distinguish colors.
Prior to opening statements, Mary Ann Stahl’s derivative claim was dismissed as time barred, and the appellant does not challenge that ruling, nor the order entered thereon, in her brief.
During jury selection, the defendants made several applications to preclude the admission of evidence. The trial court precluded the plaintiff’s experts from mentioning a product used in France containing over 6% hexachlorophene, the active ingredient in pHisoHex, which resulted in the death of 36 children. The court also ruled that the plaintiff could not introduce evidence with regard to other lawsuits arising from an alleged exposure to pHisoHex, including a lawsuit brought on behalf of a plaintiff who is mentally retarded, allegedly as a result of exposure to pHisoHex.
The plaintiffs expert witnesses, which included a board-certified pediatrician and graduate of Yale Medical School, a professor and former Chairman of Pharmacology and Toxicology at New Jersey Medical School, and a board-certified pediatrician and Director of Pediatric Oncology/Hematology at the National Medical Center in Duarte, California, relied upon numerous studies and reports, which established that hexachlorophene was a neurotoxic chemical, and further indicated that use of pHisoHex could result in seizures. The defendants’ expert, Dr. Robert Shuman, contended that, while pHisoHex can have neurotoxic effects, including seizures and death, a person who survives "will fully recover, with the possible exception of optic nerve impairment”, caused by edema resulting from hexachlorophene exposure. However, in a prior order dated June 16, 1993, the Supreme Court, Suffolk County (Cannavo, J.), ruled that "even if there are no previously reported issues of retardation or seizures following pHisoHex treatment, it does not follow that none have existed or can exist”.
Prior to the defendants’ opening statements, the plaintiff’s counsel asked the court to rule inadmissible any evidence regarding that of the infant plaintiff’s second cousins, one of whom suffers from mental retardation and a seizure disorder, the other of whom suffers from a seizure disorder. That application was denied. However, the plaintiff was prepared to submit evidence that the infant does not suffer from any congenital or hereditary illness.
The plaintiff’s counsel noted that he explored the possibility of settlement "based upon the trial court’s rulings and unequivocal statements that it would be very difficult for the plaintiff to establish a prima facie case”. The trial court initially indicated it would not assist in negotiating a settlement because, in light of its rulings, it would be accused of coercing a settlement if it did so.
On March 29, 1994, the trial court informed the plaintiff’s counsel that the pharmaceutical company defendants were offering $500,000 in settlement of all claims, which amount could be increased to $550,000. The plaintiff’s attorney advised Mrs. Stahl to accept the settlement. Mrs. Stahl initially offered to accept $575,000 conditioned upon the waiver by the County of Suffolk of its medical bills, and the establishment of a special [43]*43needs trust. The plaintiffs counsel calculated that the proposed settlement would net the infant plaintiff about $300,000, which would be placed into a special needs trust.
Mrs. Stahl was ill in the hospital the following day, March 30, 1994, and was unable to appear. The court directed the plaintiffs counsel to inform Mrs. Stahl that if she could not appear, the court would consider appointing a guardian ad litem. That afternoon, Mrs. Stahl informed counsel that she no longer wished to accept the settlement.
When Mrs. Stahl appeared in court the following day, March 31, 1994, the court informed her that he was about to replace her with a guardian ad litem, because there was "some question with regard to a possible conflict of interest or that the child’s interests are not being properly regarded as a matter of law”, because she had no legal training and could not "make a proper judgment where litigation is involved”.
After further colloquy, it was revealed that the plaintiffs counsel had incurred expenses of $100,000 on the case, for which Mrs. Stahl was financially unable to reimburse him. However, Mrs. Stahl said she could not accept the proposed settlement "under any circumstances” because it would not cover her son’s expenses.
Thereafter, the court noted that the infant plaintiff was a great burden on Mrs.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
Goldstein, J.
At issue here is whether the trial court properly relieved the infant plaintiff’s natural guardian, Mary Ann Stahl, and replaced her with an attorney, Harvey B. Besunder, as court-appointed guardian ad litem, for the purpose of approving a settlement of the infant plaintiffs claims. We hold that it did not.
The infant plaintiff was born on February 1, 1977. An Apgar score of nine was recorded one minute after birth and the optimal Apgar score of 10 was recorded five minutes after birth. Two weeks later, the infant was diagnosed as suffering from an infantile impetigo. His pediatrician prescribed pHisoHex, an antibacterial skin cleanser, to be rubbed into the blisters on the skin with each diaper change and then rinsed off. The infant’s mother, Mary Ann Stahl, claims that within 48 hours after she started applying pHisoHex the baby became very irritable, with greenish stools and flaking skin. Mrs. Stahl used the entire 16-ounce bottle within nine days and thereafter renewed her prescription.
On March 1, 1977, the infant’s pediatrician diagnosed the infant’s condition as diaper rash, but Mrs. Stahl claims he urged her to continue the use of pHisoHex. The infant alleg[41]*41edly continued to be irritable and have loose, foul-smelling, green-colored stool. Unusual body movements, such as twitching, stiffening, and staring were observed, and the baby was diagnosed with seizures on June 30,1977.
At the age of one year, mental retardation was diagnosed, and institutionalization was recommended for the infant. Mrs. Stahl decided to care for the infant at home, attending to his needs and administering oxygen when necessary. By 1986, Mrs. Stahl was unable to provide the infant with the care he required, and he was placed in Cumberland Hospital in Virginia, one of few hospitals capable of tending to his needs. He was transferred to the Suffolk Child Development Center in 1989.
This action to recover damages for the infant’s personal injuries, and asserting a derivative claim on behalf of his mother Mary Ann Stahl, was commenced in March 1984, and the trial commenced in March 1994.
At the time of trial, the infant was 17 years old, but functioned at the mental age of a child three and one-half years old. He required nursing care around the clock, as well as assistance in eating, dressing, and toileting, and will require such assistance for the remainder of his life. Although he is unable to speak, he has learned to communicate simple words with sign language, and has also learned to distinguish colors.
Prior to opening statements, Mary Ann Stahl’s derivative claim was dismissed as time barred, and the appellant does not challenge that ruling, nor the order entered thereon, in her brief.
During jury selection, the defendants made several applications to preclude the admission of evidence. The trial court precluded the plaintiff’s experts from mentioning a product used in France containing over 6% hexachlorophene, the active ingredient in pHisoHex, which resulted in the death of 36 children. The court also ruled that the plaintiff could not introduce evidence with regard to other lawsuits arising from an alleged exposure to pHisoHex, including a lawsuit brought on behalf of a plaintiff who is mentally retarded, allegedly as a result of exposure to pHisoHex.
The plaintiffs expert witnesses, which included a board-certified pediatrician and graduate of Yale Medical School, a professor and former Chairman of Pharmacology and Toxicology at New Jersey Medical School, and a board-certified pediatrician and Director of Pediatric Oncology/Hematology at the National Medical Center in Duarte, California, relied upon numerous studies and reports, which established that hexachlorophene was a neurotoxic chemical, and further indicated that use of pHisoHex could result in seizures. The defendants’ expert, Dr. Robert Shuman, contended that, while pHisoHex can have neurotoxic effects, including seizures and death, a person who survives "will fully recover, with the possible exception of optic nerve impairment”, caused by edema resulting from hexachlorophene exposure. However, in a prior order dated June 16, 1993, the Supreme Court, Suffolk County (Cannavo, J.), ruled that "even if there are no previously reported issues of retardation or seizures following pHisoHex treatment, it does not follow that none have existed or can exist”.
Prior to the defendants’ opening statements, the plaintiff’s counsel asked the court to rule inadmissible any evidence regarding that of the infant plaintiff’s second cousins, one of whom suffers from mental retardation and a seizure disorder, the other of whom suffers from a seizure disorder. That application was denied. However, the plaintiff was prepared to submit evidence that the infant does not suffer from any congenital or hereditary illness.
The plaintiff’s counsel noted that he explored the possibility of settlement "based upon the trial court’s rulings and unequivocal statements that it would be very difficult for the plaintiff to establish a prima facie case”. The trial court initially indicated it would not assist in negotiating a settlement because, in light of its rulings, it would be accused of coercing a settlement if it did so.
On March 29, 1994, the trial court informed the plaintiff’s counsel that the pharmaceutical company defendants were offering $500,000 in settlement of all claims, which amount could be increased to $550,000. The plaintiff’s attorney advised Mrs. Stahl to accept the settlement. Mrs. Stahl initially offered to accept $575,000 conditioned upon the waiver by the County of Suffolk of its medical bills, and the establishment of a special [43]*43needs trust. The plaintiffs counsel calculated that the proposed settlement would net the infant plaintiff about $300,000, which would be placed into a special needs trust.
Mrs. Stahl was ill in the hospital the following day, March 30, 1994, and was unable to appear. The court directed the plaintiffs counsel to inform Mrs. Stahl that if she could not appear, the court would consider appointing a guardian ad litem. That afternoon, Mrs. Stahl informed counsel that she no longer wished to accept the settlement.
When Mrs. Stahl appeared in court the following day, March 31, 1994, the court informed her that he was about to replace her with a guardian ad litem, because there was "some question with regard to a possible conflict of interest or that the child’s interests are not being properly regarded as a matter of law”, because she had no legal training and could not "make a proper judgment where litigation is involved”.
After further colloquy, it was revealed that the plaintiffs counsel had incurred expenses of $100,000 on the case, for which Mrs. Stahl was financially unable to reimburse him. However, Mrs. Stahl said she could not accept the proposed settlement "under any circumstances” because it would not cover her son’s expenses.
Thereafter, the court noted that the infant plaintiff was a great burden on Mrs. Stahl, since he could not do anything for himself. Mrs. Stahl claimed that the infant plaintiffs expenses "far exceed on a yearly basis what they have proposed to give” him. She further objected to a condition of the settlement that she "could not discuss this matter with anybody” if she agreed to the proposed settlement, and stated that, if the file were not sealed, she would have an opportunity to write a book, and use whatever proceeds might be generated for her son’s care "being that the settlement is so small”.
The court stated that "there are some very serious problems with the plaintiffs case. And rather than allow the child to take a chance * * * I am concerned enough to appoint a guardian ad litem”. However, the court noted that if the settlement were approved, the court would ask Mrs. Stahl to go to the Surrogate’s Court to apply for letters of guardianship over the infant, who would remain incompetent for the rest of his life, because "[s]he’s obviously a good mother in the sense that she’s looking after the child”. The trial court further noted "who better than that to safeguard the child’s fund and to be accountable to the Surrogate”.
The guardian ad litem concluded that, if the trial proceeded, the case could be dismissed for failure to make out a prima [44]*44facie case; therefore, "it is clearly in the best interest of the child to accept the offered settlement”. The order appealed from, entered May 3, 1994, approved the settlement.
The defendants rely upon precedent decided under the former Rules of Civil Practice which stated that it was not the intent of the rulemakers to grant a guardian ad litem the power to veto a proposed settlement (see, Lee v Gucker, 16 Misc 2d 346, revd on other grounds 27 AD2d 722). However, with the enactment of CPLR 1208 (a) (5), an application to settle an infant’s action or claim had to include "an affidavit of the infant’s parent or guardian stating approval of the settlement” (Speights v MVAIC, 75 Misc 2d 937, 938-939; see, Smith v Ford Motor Co., 38 AD2d 852).
CPLR 1201 provides, in pertinent part: "Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his property or, if there is no such guardian, by a parent having legal custody”.
In that provision, the Legislature demonstrated a preference for natural guardians (see, Matter of Beyer, 21 AD2d 152, 154; Matter of Manufacturers Hanover Trust Co., 83 AD2d 808; Trippe v Trippe, 35 AD2d 944; Matter of Thoms, 33 AD2d 990; Matter of Pugach, 29 AD2d 518, affd 23 NY2d 901; Matter of Legget, 25 AD2d 727; United States v Noble, 269 F Supp 814). As the Appellate Division, First Department, noted in Matter of Manufacturers Hanover Trust Co. (83 AD2d 808, supra), "[i]t is the policy of this State to encourage parents to act as guardians, thereby avoiding unnecessary appointments and the expense of a guardian ad litem” (see, United States v Noble, supra).
The relieving of a guardian is a "drastic procedure” which may be accomplished in the court’s discretion (Dicupe v City of New York, 124 AD2d 542, 544), but only upon a record sufficient "to permit an informed conclusion concerning the wisdom of the decision” (Lee v Gucker, 27 AD2d 722, supra). A parent may be removed as natural guardian if he or she has an interest adverse to the infant (see, Matter of Manufacturers Hanover Trust Co., 83 AD2d 808, supra), or if the infant’s natural guardians have irreconcilable differences with each other (see, Mullins v Saul, 130 AD2d 634). There is absolutely no evidence that such factors exist in the present action.
The court cannot remove a guardian solely to ensure approval of a settlement (see, Sutherland v City of New York, 107 AD2d 568, affd 66 NY2d 800; Smith v Ford Motor Co., supra), since the power of the court to approve a settlement does not [45]*45confer a concomitant power to dictate the terms of the settlement (see, Reed v Tompkins Terrace, 209 AD2d 595, 597). In De Forte v Liggett & Myers Tobacco Co. (42 Misc 2d 721, 722), the court overrode the wishes of the infant’s natural guardians, but only upon findings that the parents’ refusal to consent to a settlement was "unreasonable, arbitrary and capricious and can only result in prejudice to the rights of the infant plaintiff’.
In the instant case, Mrs. Stahl’s refusal to accept the settlement offered was based upon an informed judgment that there was such a pronounced difference between the amount offered and her child’s yearly and lifetime expenses, that the settlement would make no discernible difference in the child’s life. The infant plaintiff, with a mental age of three and one-half years, will remain incompetent for life, requiring 24-hour nursing care and continuous help in eating, dressing, and toileting. His special damages, if he were to live at home rather than in an institutional setting, are estimated at over $8,000,000.
In the colloquy which led to the relieving of Mrs. Stahl as guardian ad litem, and in the report of the court-appointed guardian ad litem, there was no indication of the manner in which the amount awarded will meet the infant plaintiffs special needs, nor was there any meaningful discussion of what those special needs were. The court-appointed guardian ad litem, in his amended report dated April 7, 1994, states merely that "[i]t is uncontroverted that a supplemental needs trust will provide for Timothy Stahl those necessities, comforts and luxuries that State and Federal government programs do not provide”.
The defendants have intimated that a conflict of interest existed between the infant plaintiff and Mrs. Stahl because she objected to the confidentiality condition of the settlement, and further stated that if the file were not sealed, she would have the opportunity to write a book. Mrs. Stahl also noted that if she wrote a book, she would use the proceeds solely for her son’s care. Thus, personal financial gain was not her objective. Further, the trial court implicitly acknowledged that there was no conflict of interest between Mrs. Stahl and her son when he recommended that she be appointed permanent guardian for the purpose of administering the special needs trust.
The defendants also assert, in support of their conflict-of-interest contention, that Mrs. Stahl was engaged in what they characterize as a "crusade” or "trial by press” in the media [46]*46rather than pursuing her son’s rights in court. Her efforts in this regard, however, must be viewed, at least in part, to her reasonable perception that her son’s court case had been lost.
It is the position of the mother that the only thing that will change this infant’s life will be to be cared for at home in a loving environment. She argues that $300,000 in the bank will in no way benefit this manifestly retarded infant, who will never utilize or in any way enjoy or realize this sum.
In a case where reasonable minds may legitimately differ, the judgment of the infant’s natural guardian should prevail. It cannot be said that Mrs. Stahl’s judgment in this matter was unreasonable, arbitrary, or capricious (see, De Forte v Liggett & Myers Tobacco Co., 42 Misc 2d 721, 722, supra). Indeed it is she who has loved, cared for, and sacrificed her life for her son, and who continues to argue his cause.
Accordingly, the order entered April 6, 1994, relieving the mother as guardian ad litem for the infant, and the order entered May 3, 1994, approving the settlement, are reversed, the motion for approval of the settlement is denied, and Mrs. Stahl is reinstated as guardian for her son.
The appeal from the order dated April 5, 1994, which dismissed Mrs. Stahl’s derivative claims as time barred, is dismissed as abandoned. Although the plaintiff purportedly appeals from a transcript of a decision dated March 23, 1994, leave to appeal from this paper was denied by decision and order on motion of this Court dated April 14, 1994.
That suit was dismissed by the New Jersey Superior Court but was thereafter settled for an undisclosed sum and the record sealed.