Supreme Court, Suffolk County, November 9, 2020

Kaiteris & Kavanagh PLLC, Bayport, and Rouse Frets Gentile Rhodes LLC, Leawood, Kansas, for plaintiffs.

Kelly Rode & Kelly LLP, Mineola, for Mark A. Helupka, defendant.

Lewis Johs Avallone Aviles LLP, Islandia, for Lindsey M. Brown, defendant.

Ahmuty, Demers & McManus, Riverhead[*2], Bryan Cave Leighton Paisner LLP, St. Louis, Missouri (Dan H. Ball, admitted pro hac vice, and Richard P. Cassetta, admitted pro hac vice, of counsel), and Connell Foley LLP, Newark, New Jersey, for Evenflo Company, Inc., defendant.

It is ordered that the joint motion for an order, pursuant to 22 NYCRR 216.1, partially sealing such portions of the infant's compromise order and underlying record as discuss the amount of the proposed settlement between plaintiffs and defendant Evenflo Company, Inc., with limited exceptions for financial planners of the plaintiff(s), insurers and auditors or as otherwise required by law, is granted to the extent indicated below.

On the morning of July 5, 2016, Lindsey Brown was driving her young daughters, S.B. and J.B., to day care, with both girls belted into booster seats on the rear bench of her 2005 Suzuki Forenza. S.B. was seated immediately behind Mrs. Brown in a Graco booster seat; J.B. was seated on the right-hand side of the bench in an Evenflo "Big Kid" booster seat that had been manufactured in 2013 and purchased in 2014. As Mrs. Brown attempted to make a left turn from southbound Randall Road onto eastbound Middle Country Road in Ridge, New York, a 2000 BMW driven by defendant Mark Helupka collided into the driver's side of the Brown vehicle. Both drivers and the two girls survived the collision, which was so fierce that the Helupka vehicle penetrated into the side of the Forenza and propelled it into the guardrail on the opposite side of Middle Country Road. Mrs. Brown and S.B. sustained serious, but not life-threatening injuries, but J.B., who was not quite 51/2 years old at the time of the collision, suffered catastrophic harm, including internal decapitation. As a result, and after months in intensive care and residential rehabilitation, and after numerous surgical procedures, J.B., who is now nine years old, is completely and permanently paralyzed from the neck down. She attends public school and performs academically at grade level using assistive devices but is completely ventilator dependent{**70 Misc 3d at 536} and requires nursing care around the clock. She operates her wheelchair with her tongue, can communicate by whispering and does her schoolwork and plays electronic games using a sophisticated computerized device that detects her eye movements.

J.B.'s father, Jason Brown, brought the current action in 2017, both individually and on behalf of S.B. and J.B., against the two drivers, for alleged negligence in the operation of their respective vehicles; against the Town of Brookhaven, for, among other things, allegedly negligent roadway design and maintenance; and against Evenflo Company, Inc., for alleged negligence, breach of express and implied warranties, strict liability, failure to warn, fraudulent concealment and misrepresentation, deceptive business practices and false advertising. Among other things, Mr. Brown claimed that Evenflo had misrepresented the testing to which the Big Kid belt-positioning booster seat had been subjected; that it knew that the Big Kid was not suitable or safe for a child of J.B.'s height and weight at the time of the accident and that the Big Kid would not provide adequate protection for such a child in a side-impact collision but nonetheless represented that the Big Kid was and would; and that although it had a duty to warn against the use of the Big Kid for a child of J.B.'s size and weight, it labeled the Big Kid as safe and suitable for such use. All of the defendants denied the material allegations against them, and it should be noted that Evenflo mounted a particularly strenuous defense.

Following extensive discovery and a mediation, plaintiffs and Evenflo arrived at a proposed settlement, the terms of which include a provision precluding the disclosure of the amount and related details of the settlement.^[FN*] Further to that provision, plaintiffs and Evenflo are now moving for an order sealing so much of the record, including such order as the court may enter upon plaintiffs' motion, pursuant to CPLR 1207 and 1208, for an order approving the compromise of J.B.'s claims against the remaining defendants, as reveals the amount of the proposed settlement between plaintiffs and Evenflo. In an{**70 Misc 3d at 537} affirmation by counsel for Evenflo proffered in support of that motion, counsel states that Evenflo would not have agreed to settle the case under the terms of the proposed settlement agreement without the confidentiality provision preventing the disclosure of the amount of the settlement. Counsel for Evenflo further states, however, that Evenflo has no objection to the disclosure of any other aspect of the settlement, including the filing without sealing of a redacted copy of the order approving the compromise of J.B.'s claims and of the transcript of the proceedings antecedent to such approval. For their part, counsel for plaintiffs state that they are joining in the current motion in order to protect the Brown family's privacy interests and to help prevent unsolicited contacts from people and entities seeking loans, gifts or charitable donations or otherwise preying upon them.

Section 216.1 (a) of the Uniform Rules for Trial Courts (22 NYCRR) provides, in pertinent part, as follows:

"Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the [*4]public as well as of the parties."

Strong policy considerations favor settlements (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Randall Elec. v State of New York, 150 AD2d 875, 876 [3d Dept 1989]; Allegretti-Freeman v Baltis, 205 AD2d 859 [3d Dept 1994]). "[C]onfidentiality is, in certain circumstances, necessary in order to protect the litigants or encourage a fair resolution of the matter in controversy" (Matter of New York County Data Entry Worker Prod. Liab. Litig., 162 Misc 2d 263, 268 [Sup Ct, NY County 1994], citing Brazil, J., Protecting the Confidentiality of Settlement Negotiations, 39 Hastings L J 955 [1988]; Richard L. Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L Rev 1, 28, 49 [1983]; Richard L. Marcus, The Discovery Confidentiality Controversy, 1991 U Ill L Rev 457 [1991]; George F. Carpinello, Public Access to Court Records In Civil Proceedings: The New York Approach, 54 Alb L Rev 93 [1989]). "Courts must have discretion to balance the competing interests of the parties, the public, and the justice systems. When the balance favors confidentiality, confidentiality should be provided" (Matter of Twentieth Century Fox Film Corp., 190 {**70 Misc 3d at 538}AD2d 483, 486 [1st Dept 1993], quoting Arthur R. Miller, The Private Costs of Public Justice, 63 NY St BJ 12, 13 [July/Aug. 1991]).

This case and others that attribute profound injuries to young children to the use of unsuitable child safety seats—including the precise brand and model of the child safety seat at issue here—that, plaintiffs allege, have been inadequately designed, tested and labeled and improperly marketed, have engendered much public media and public attention (see e.g. Daniela Porat & Patricia Callahan, Evenflo, Maker of the "Big Kid" Booster Seat, Put Profits Over Child Safety, Pro Publica [Feb. 6, 2020], https://www.propublica.org/article/evenflo-maker-of-the-big-kid-booster-seat-put-profits-over-child-safety; CBS News, "Horrific" Side Crash Test Videos Raise Safety Concerns About Some Car Booster Seats, CBS This Morning [Feb. 6, 2020], https://www.cbsnews.com/news/evenflo-car-booster-seat-propublica-investigation-raises-concerns-over-some-of-the-companys-safety-claims/). To that extent, the public interest in preventing the concealment of such claims and their underlying allegations has been in large measure served. The pleadings and virtually all of the other filings in this case and the fact of its settlement are, and will remain, a matter of public record. For all practical purposes, then, "the compelling need for privacy articulated by the plaintiffs" (Matter of New York County Data Entry Worker Prod. Liab. Litig., 162 Misc 2d at 268)—who, after all, have suffered, and will continue to suffer, the huge physical, mental and emotional losses that lie at the core of this case—outweighs any additional, incremental benefit that the public would derive from disclosure of the dollar amount of their settlement with Evenflo. In striking the balance that must be struck in applying rule 216.1 to the facts of this case, the public interest in knowing the full extent of the plaintiffs' negotiated recovery from Evenflo properly must give way to the needs of J.B. and her family.

Accordingly, the motion is granted to the extent that the amount and allocation of the monetary settlement between plaintiffs and Evenflo will be sealed and will be redacted from the copies of such papers related to the settlement as are, or will in the future be, filed in this matter or any related matter absent further order of the court made on application to the court with notice to the parties, provided, however, that information as to such amounts and allocations shall be available to financial planners retained by the plaintiff(s), insurers and{**70 Misc 3d at 539} auditors and the Referee appointed by the court in connection with the within settlement and as otherwise required by law.