In my view, the Supreme Court permissibly exercised its discretion in appointing a guardian ad litem for the limited purpose of considering the settlement offered by the defendant Sterling Winthrop, Inc. Accordingly, I dissent.
Mary Ann Stahl, the mother of the infant plaintiff Timothy Stahl, commenced this action alleging that the permanent seizure disorder and mental retardation which afflicted Timothy were caused by his use of pHisoHex during the first few months of his life. PHisoHex is an antibacterial skin cleanser which was introduced in 1949, and which has as its active ingredient hexachlorophene in a 3% concentration. Shortly after Timothy was born he developed a minor case of infantile impetigo for which pHisoHex washings were prescribed by the defendant Youchan Rhee. According to her interrogatory responses and the prelitigation medical histories, *47Mrs. Stahl used pHisoHex until mid-March of 1977, although she later claimed that she continued its use until mid-April of 1977. The medical histories reveal that the first reported seizure occurred on June 30, 1977. Timothy was later hospitalized and subsequently diagnosed as suffering from a permanent seizure disorder accompanied by severe mental retardation of unknown etiology.
Approximately seven years later, Mrs. Stahl, a layperson with no medical training, concluded upon reading the Physicians’ Desk Reference that pHisoHex was the cause of her son’s medical problems. None of the physicians who had treated Timothy during this period had ever suggested that pHisoHex was the cause of Timothy’s seizures and his retardation. Notably, the contemporaneous medical histories provided by Mrs. Stahl prior to the commencement of suit described Timothy as an essentially normal infant—until he had his first recorded seizure in late June of 1977, approximately 21h months after the last time Mrs. Stahl used pHisoHex. However, after commencing the lawsuit Mrs. Stahl began to claim that within 24 to 48 hours after washing her son with pHisoHex, he experienced seizures and unconsciousness and that this occurred 10 to 15 times per day whenever she changed his diaper and washed him with pHisoHex. None of these frightening symptoms was recorded anywhere in medical histories during the roughly seven-year period prior to the filing of this action.
Just prior to the commencement of trial, the court issued a series of evidentiary rulings which were highly unfavorable to the plaintiff. Specifically, the court precluded the plaintiff from introducing into evidence (1) any of the studies upon which her medical experts had relied in opposing a prior motion for summary judgment, and (2) any reference to the so-called "Talc Morhange” incident upon which the plaintiff’s experts, in part, relied. The "Talc Morhange” incident occurred when French children were exposed not to pHisoHex but to Talc Morhange powder, which contained hexachlorophene in a 6.5% concentration, and which resulted in a number of deaths and injuries in France. Notably, none of the afflicted children developed permanent seizure disorders or mental retardation. The court further denied the plaintiff’s motion to preclude the defendants from admitting into evidence proof that one of the relatives of the infant plaintiff suffered from similar conditions with which he was afflicted and that another relative was mentally retarded.
Although Mrs. Stahl intended to rely on the testimony of three medical experts—one of whom was not a medical doc*48tor—to buttress her claim, the record suggests that none of these experts was in a position to offer a medically authoritative opinion relative to the claim that pHisoHex was the proximate cause of Timothy’s medical condition. One expert was neither , a neurologist nor an expert on pHisoHex and conceded that his theories were "distinctly different from the mainstream”. Two of the other experts relied on by Mrs. Stahl had offered opinions in a New Jersey case involving similar claims based on pHisoHex use. The New Jersey court rejected these opinions and those of certain other experts, observing, inter alia, that their conclusions purportedly linking pHisoHex to mental retardation were not generally accepted in the relevant medical community and were not based on reliable scientific methodology. In fact, a review of the materials submitted by the plaintiff’s experts herein reveals that none of the experts could cite to a single case in the medical literature in which mental retardation or permanent seizure disorders were caused by exposure to pHisoHex.
In contrast, the defendants were prepared to introduce, inter alia, the testimony of several pediatric neurologists involved with the treatment of children with mental retardation and seizure disorders. Dr. Robert Shuman, a pediatric neurologist and neuropathologist who had done extensive research and writing on the effects of hexachlorophene, concluded that there had never been a reported instance of pHisoHex producing either of the conditions with which Timothy was afflicted within the 45-year history of the product. Dr. Schuman recounted that while high doses of hexachlorophene might affect the white matter of the brain, albeit in a reversible fashion, it would not effect the gray matter comprising the nerve cells. According to Dr. Schuman, the only arguable case of permanent sequelae in a survivor of pHisoHex toxicity that has ever been reported in the medical literature was an impairment to the optic nerve of one person who ate pHisoHex for 11 months.
After opening statements, during which the defense counsel apprised the jury of the stark contrast between the prelitigation medical histories provided by Mrs. Stahl and those she had given after the lawsuit was commenced, settlement negotiations were initiated upon the request of the plaintiff’s counsel. After extensive negotiations were conducted, the defendant pharmaceutical company, Sterling Winthrop, Inc., offered a settlement in the amount of $575,000. The terms and conditions of the settlement were to be discussed further by the parties in chambers the next day. The plaintiff’s counsel, who had *49prepared the case for trial and served as counsel for the infant plaintiff from the inception of the lawsuit 10 years earlier, concluded that the settlement was in Timothy’s best interests.
Although Mrs. Stahl originally had indicated her willingness to accept the offer, she did not appear in court the next day. Her attorney did not know where she was or why she had not appeared. Subsequently, Mrs. Stahl appeared and revealed in chambers that, without consulting her attorney, she had changed her mind about settling.
In order to ascertain why Mrs. Stahl had changed her mind, her attorney examined her under oath. Mrs. Stahl stated she no longer wanted to settle because the settlement was not large enough and because, inter alia, she knew in her "heart of hearts” that pHisoHex had caused not only her son’s condition but "many other conditions in other children” and that if she were deprived of the opportunity to take her case to trial, other children would be injured. Mrs. Stahl also objected to a confidentiality provision in the proposed settlement agreement because it would interfere with her plan to write a book about the lawsuit. Mrs. Stahl further commented that, "I know that children are being injured and therefore I would need to have an open file on this. My child is damaged for life. That means a child born today or two weeks from today who gets impetigo who has to use this product will be damaged”. She also stated, as recounted by her attorney, that even if her experts were not permitted to testify, she could herself testify as to how pHisoHex caused Timothy’s condition based on the personal knowledge she had acquired during the course of the lawsuit. During the defense counsel’s attempt to examine her concerning the settlement offer, Mrs. Stahl insisted that conducting the proceedings in chambers was a violation of her constitutional rights and that the individuals in the gallery—some present at her invitation—"want to hear what’s being stated in this courtroom”. When the court explained that he did not intend to conduct the proceedings in open court but would ensure that they were transcribed, Mrs. Stahl got up and stormed out of the room, refusing to answer any questions posed by the defense counsel.
After observing Mrs. Stahl’s conduct, the court exercised its discretion under CPLR 1202 and appointed a guardian ad litem to ensure that Timothy’s best interests were considered in connection with the settlement offer. Upon reviewing the settlement and the history of the case, the guardian, then-Suffolk County Bar President Harvey B. Besunder, submitted a report *50to the court concluding that the settlement was in Timothy’s best interests. In his report, the guardian observed, inter alia, that (1) the plaintiffs counsel had informed him that based on the court’s rulings, there was an absence of sufficient case histories and medical records to connect the use of pHisoHex to Timothy’s condition, (2) the medical affidavits, as well as the deposition testimony of both the plaintiffs and the defendants’ medical experts made it clear that there was no medical literature, and in fact, no admissible case history which even suggested that the use of pHisoHex could have resulted in mental retardation or permanent seizure disorders, (3) that although pHisoHex has been on the market for 45 years, there was no empirical data supporting a theory connecting its use to the type of injuries sustained by Timothy, and (4) to the extent any adverse effect has been attributed to pHisoHex use, that effect was contemporaneous to the application. The guardian further observed that although Mrs. Stahl claimed to have made reports of contemporaneously occurring side effects— asserting that the doctors simply did not record them—none of those side effects was ever noted in Timothy’s prelitigation histories.
Upon further negotiations, the guardian and counsel for all parties executed a written settlement agreement and the court subsequently issued an order approving the settlement. Mrs. Stahl now appeals. I would affirm.
Where an action has been brought on behalf of an infant, the court may replace the infant’s guardian with a guardian ad litem if it is of the belief that the natural guardian was not acting in the best interest of the child (see, CPLR 1202; Mullins v Saul, 130 AD2d 634; Dicupe v City of New York, 124 AD2d 542). In my view, the court permissibly exercised its discretion in concluding that by rejecting the settlement offer, Mrs. Stahl was not acting in Timothy’s best interests.
In this respect, the record supports the inference that irrespective of what the technical rules of evidence might require, or what the scientific evidence might reasonably be construed to support, Mrs. Stahl was intractable in her conviction that pHisoHex was the sole and only cause of her son’s affliction. Further, it is apparent that Mrs. Stahl perceived herself as the person through whom the purported evils of pHisoHex could be trumpeted. In fact, her statements support the inference that, because of the medical establishment’s perceived indifference to her theory, she was even more intent upon pursuing the lawsuit—irrespective of its chances for success—in order to *51ensure that other infants did not suffer the same fate her son did. As she herself put it, "[m]y child is damaged for life. That means a child born today or two weeks from today who gets impetigo who has to use this product will be damaged”. Indeed, she had already informed the court in no uncertain terms that she "would need to have an open file on this [case]”.
Acting upon these convictions, Mrs. Stahl disregarded her counsel’s advice and declined to accept the settlement notwithstanding (1) the absence of a single, documented case demonstrating that pHisoHex had ever caused conditions such as those suffered by Timothy (cf., Kracker v Spartan Chem. Co., 183 AD2d 810), (2) the existence of a persuasive, alternate etiology of Timothy’s conditions, and (3) the court’s evidentiary rulings which effectively undermined her ability to present a prima facie case. Mrs. Stahl’s statements and conduct suggest that she was unreceptive to the advice of her counsel, and unwilling to consider the factors relevant to any realistic assessment of her prospects for success at trial.
The majority stresses the severity of Timothy’s injury and concludes that Mrs. Stahl’s refusal to accept the settlement offer was necessarily based upon an informed judgment that the settlement was small in comparison to expenses involved in his care. There is no dispute that Timothy’s illness is severe and that the costs associated with his care are high. However, the fact that a person has become afflicted with a serious or costly malady does not establish that he or she is entitled to a recovery, that his or her legal theory is a reasonable one, or, more pertinently, that a guardian has acted appropriately by rejecting a settlement. The pertinent issues here relate to Mrs. Stahl’s inability—or disinclination—to comprehend and consider the hard scientific and evidentiary facts relevant to the proof of her case, and whether, in light of those facts, there was a realistic likelihood of securing any recovery at all. The record does not support the majority’s conclusion that Mrs. Stahl’s judgment was informed in connection with these key issues.
Under these circumstances, the Supreme Court did not improvidently exercise its discretion in removing Mrs. Stahl as the guardian of the infant for the purpose of making a decision as to the settlement order, appointing Harvey B. Besunder as the infant’s guardian ad litem for that purpose and in approving a compromise order. Nor under these circumstances, where Mr. Besunder performed a comprehensive, independent review of the matter, may it be said that the court improperly dictated the settlement (see, Cohen v Reed, 120 AD2d 480).
*52Miller, J. P., and Hart, J., concur with Goldstein, J.; Thompson and Sullivan, JJ., dissent in a separate opinion by Thompson, J.
Ordered that the appeal from the order dated April 5, 1994 is dismissed as abandoned; and it is further,
Ordered that the order dated April 6, 1994 is reversed, on the law and as a matter of discretion, and Mrs. Stahl is reinstated as guardian for her son; and it is further,
Ordered that the order entered May 3, 1994 is reversed, on the law and as a matter of discretion, and the motion for approval of the settlement is denied; and it is further,
Ordered that the matter is remitted to the Supreme Court, Suffolk County, for further proceedings; and it is further,
Ordered that Mary Ann Stahl is awarded one bill of costs, payable by the defendants appearing separately and filing separate briefs.