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Friday, August 26, 2005

ABA Journal Article about Guardianships

Illinois Courts Accepting Guardians’ Choice in the Best Interests of Children


Linda Will makes no secret about the motivation behind her wrongful-death lawsuit against Northwestern University and its high-profile football program. She wants the coach fired and the university to apologize for the day in 2001 when her son collapsed under the weight of an asthma attack during a preseason football practice.

Twenty-two-year-old Rashidi Wheeler died about 45 minutes later, just inches from his inhaler and only blocks from the hospital.

Will and Wheeler’s father brought the lawsuit as co-administrators of the football player’s estate. If it were only Linda Will involved in the case, she could get her day in court and possibly the more thorough accounting she desires from the elite Chicago-area school. Instead, because there are three minor siblings who are also heirs of the estate, Will is being forced to settle.

On Aug. 15, Cook County (Ill.) Circuit Judge Kathy M. Flanagan accepted the recommendation of a guardian ad litem and ordered Will to accept the $16 million settlement figure suggested by a mediator. According to news reports, Will sat in the courtroom and cried for five minutes after the order was handed down. Wheeler v. Northwestern University, No. 05-L-1563.

There’s no doubt that $16 million is big money. It’s an especially high amount for a young student with no dependents. But for Will and others concerned about a perceived increase in judges relying on guardians ad litem, the forced settlement leaves a bad taste.

"I’m worried because I do think this tort system serves as compensation for negligent conduct, but there’s a societal purpose as well," says Chicago plaintiffs lawyer Kevin G. Burke, who was not involved in the Wheeler case, but had a similar experience last year.

In 2004, Burke’s clients were forced to accept a $35 million settlement offer that came while the jury deliberated in a birth-injury case. Burke says the case in Arkebauer v. Northwestern Memorial Hospital had gone badly for the defense, and late in the trial, the judge appointed a guardian to represent the interests of the minor child. When the 11th-hour settlement offer arose, the judge ordered the parents to take the money.

To Burke, a forced settlement robbed society of a sure court finding that the conduct of an anesthesiologist, who allegedly ignored a page while involved in a romantic tryst at the hospital, was improper. He feels the settlement also lessened the impact that a potentially higher award could have had in preventing similar failings.

"That [pressure for positive change] is simply gone when you turn to these types of settlements," Burke says. "For someone to substitute their judgment for the judgment of the parents, I don’t believe that was correct."

But even Burke can empathize with the judge, who was duty-bound to look after the interests of the injured child. Under Illinois law, every minor plaintiff is considered a ward of the court.

Indeed, courts in Illinois have been using their authority to appoint guardians ad litem to weigh settlements at least since a 1995 Illinois appellate court ruling that a judge could appoint a guardian and accept that guardian’s recommendation over the objections of a child’s parents.

In Ott v. Little Company of Mary Hospital, 652 N.E.2d 1051, the appellate panel said, "It is uncontroverted … that an injured plaintiff who is a competent adult can reject any settlement offer, no matter how advantageous and no matter how risky a trial on the merits could be, and that the trial court would have no authority to overrule that rejection. In the case of a minor, … however, the trial court has a duty to prevent the rejection of settlement offers which in the minor’s best interests should be accepted."

The court went on to say, "This duty necessarily impedes upon the minor’s parents/guardians’ ability to control direction of the case."

The role of a guardian ad litem is to be a trusted arm of the court whose sole interest is the well-being of a child or disabled individual.

David J. Gubbins of Chicago was a plaintiffs attorney for 25 years before taking guardian ad litem appointments, and he’s been handling matters involving personal injury disputes for about two years, including the Arkebauer case.

Gubbins went so far as to say that forced settlements are on the rise. The appointing of a guardian ad litem allows the court to get a "true picture of the probability of liability and the extent of damages," he says. "It eliminates the gamble."

At least that’s the goal. The judge doesn’t have to accept a guardian’s recommendation, and a guardian doesn’t have to recommend that parents take a settlement offer. Gubbins knows of at least one case in which the guardian suggested the case proceed to trial, which ended in a defense win. And this week, he recommended to a judge that a settlement negotiated by a mother pursuing a case pro se be rejected because the offer was too low.

There is a danger of misuse, Gubbins says, if a guardian is too conservative or too liberal. But even in those instances, the judge has the final say.

For the most part, an appointed guardian, Gubbins says, "protects the integrity of the system" because he or she can cut through the emotional aspects of a case. Parents are trying to make million-dollar decisions, often without a complete understanding of the situation, he adds. "I think it’s a safeguard for the parents."

Chicago plaintiffs lawyer Dennis T. Schoen says the guardian ad litem system can be a "strange, indirect" protection for the parent as well. If, for instance, he got less at trial, Schoen wonders if the parent would later wish someone had warned of that possibility.

"The reality is there is no amount of money" that would satisfy a grieving parent, Schoen says.

That’s certainly what guardian ad litem George P. Collins found to be the case with Linda Will. Collins, in his report to Judge Flanagan, said Will "in her own mistaken misconstruction of her interest" has blocked the settlement.

"Her grief over the loss of her son is such that she cannot agree to any settlement without nonfinancial terms that represent vindication of the life of the deceased rather than recovery," wrote Collins, a Chicago attorney. "The guardian is of the opinion that money for the minors is more important than any form of vindication and that nonfinancial vindication is a waste and mismanagement of the estate of the deceased."

Collins went on to recommend that Flanagan remove Will as co-administrator of her son’s estate. Wheeler’s father, George Wheeler Jr., had been amenable to a settlement. But Will has remained the lone holdout. She fired her lawyers from The Cochran Firm three times and has retained new counsel. Her former lawyer, James Montgomery of Chicago, did not return a call for comment.

Ultimately, Flanagan declined to remove Will. She instead ordered her to take the settlement and put an end to the case.

"No settlement is ever perfect, ever complete, and no party is ever totally satisfied with the end result," Flanagan wrote. "However, under the facts and circumstances of this case, the court finds that it is in the best interests of the minor heirs of the decedent to approve and accept the proposed settlement."

Will, who is appealing, says that she believes forced settlements are a negative trend.

"This is Big Brother, in this case Big Sister, thinking that because she is a judge, she knows better," says Will, who lives in Ontario, Calif. "Maybe she does know better, but it’s not her right. It’s not her suit. She didn’t file it."

Will has said she isn’t completely opposed to a settlement, but would prefer that 12 jurors decided the case. She particularly objects to having the settlement terms dictated to her.

"They’re not looking at who was this individual, the loss to society," she says of the guardian’s report and Flanagan’s order. "It is so unfair for a school to say, ‘I’m going to give you $16 million to shut up and go away.’ "

Will has no intention of remaining silent.

"Everyone’s entitled to their day in court," she says.

©2005 ABA Journal