author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. THOMAS C.

    (AC 33450)
    Robinson, Bear and Flynn, Js.

      Argued September 9
    officially released October 15, 2013

      David R. Kritzman, with whom, on the brief, were Danielle B. Angliss, Alexa J. P. Lindauer and Joshua Shulman, legal intern, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, was Brian Preleski, state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

FLYNN, J.

Section 1-4 of the Connecticut Code of Evidence provides that where evidence is admissible “for one purpose but not for another” that “[t]he court may, and upon request shall, restrict the evidence to its proper scope.” The defendant, Thomas C., appeals from the judgment of conviction of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The state introduced constancy of accusation evidence against the defendant through a school official. The defendant claims that the court, in its final charge to the jury, improperly gave a limiting instruction about the use of constancy of accusation testimony at the request of the state and despite his counsel's objection, and that this was harmful to him because it highlighted the state’s evidence of the defendant’s sexual misconduct. We reject the defendant’s claim and affirm the judgment of the trial corut.

The following facts and procedural history inform our review. The defendant was charged with two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1). He was found not guilty of those two charges. However, the jury found him guilty, as charged, of risk of injury to a child in violation of § 53-21 (a) (2). The complaining witness testified that the defendant fondled her breasts and orally and digitally touched her vagina. The complaining witness disclosed to a school counselor that she had been subjected to sexual abuse by the defendant. The school counselor, as a mandatory reporter, disclosed the accusations to the police, resulting in this prosecution. At trial, the school counselor also testified that before the sexual abuse was reported to her, she had met with the complaining witness seven or eight times because her mother and the defendant were arguing, but the complaining witness in those sessions never disclosed that the defendant had been guilty of inappropriate conduct. The school counselor reported that she was “shocked” when the complaining witness made the allegation. During the trial, at the defendant’s request, the court did not give a limiting instruction as to the use the jury might make of the constancy of accusation testimony at the time the constancy evidence was admitted. However, at that juncture, the state reserved the right to object to any omission of the limiting instruction on the use of the evidence in the court’s final charge to the jury. The defendant preserved this claim for appeal by taking exception to the final jury charge limiting constancy evidence to its proper scope.

Where rules of practice are interpreted, our review is plenary. State v. Pare, 253 Conn. 611, 621-22, 755 A.2d 180 (2000). The pertinent provision of the Connecticut Code of Evidence in question reads in relevant part as follows: “Evidence that is admissible ... for one purpose but not for another, is admissible ... for that purpose. The court may, and upon request shall, restrict the evidence to its proper scope.” Conn. Code Evid. § 1-4. This rule does no more than codify decisions of our Supreme Court. The court in Rokus v. Bridgeport, 191 Conn. 62, 67, 463 A.2d 252 (1983), held that “it is the better practice for the trial court to instruct the jury whenever evidence is admitted for a limited purpose even when not requested to do so.” In State v. Tryon, 145 Conn. 304, 309, 142 A.2d 54 (1958), our Supreme Court held that “[w]here evidence, although inadmissible for one purpose, is admissible and is offered for another and proper purpose, it should be admitted with a limitation to the proper purpose. The fact that theoretically the evidence might be misused by the jury in violation of the court’s instructions is no ground for excluding it.”

Here, the court, in its final instructions to the jury, charged as follows:

“Now I want to talk to you about constancy of accusation. The [complaining witness] . . . testified here in court before you. Her testimony in court you may use as evidence and proof of the facts asserted in that testimony and give it the weight you find is reasonable. The state offered evidence of an out-of-court statement made by the complainant to [her school counselor] that the defendant sexually assaulted her. The statement of [the complaining witness] to [her school counselor] about the alleged sexual assaults was admitted into evidence. That testimonial evidence presented by [the school counselor] is admitted solely to corroborate or not corroborate [the complaining witness’] testimony in court. It is to be considered by you only in determining the weight and credibility you will accord [the complaining witness’] testimony.
“This evidence of the out-of-court statement to [the school counselor] by [the complaining witness] of the alleged sexual assaults against her by the defendant is not to be considered by you to prove the truth of the matter asserted in that out-of-court statement. That is to say, it is not to be used by the jury to prove the truth of the allegations. Rather, it is only to be considered by you to assess the credibility of [the complaining witness].
“In determining whether the out-of-court statement is corroborative, or not corroborative, of [the complaining witness’] testimony in court, you should consider all of the circumstances under which it was made and to whom and whether the statement made to [her school counselor] was or was not consistent with [the complaining witness’] testimony.
“To the extent you find that what [the complaining witness] has said outside the courtroom is consistent with her testimony in court, you may find her testimony in court to be corroborated or supported. To the extent you find that what she has said outside the courtroom is inconsistent with her testimony in court, you may consider the degree of inconsistency which you find and you may consider the reasons which you may find for the inconsistency, in evaluating [the complaining witness’] testimony given here in court.”

The defendant does not dispute that the charge as given by the court correctly states our law regarding the limited use of constancy of accusation testimony. However, he claimed to the trial court and on appeal that the limiting instruction is one benefiting the defendant and therefore something that the defendant can waive for strategic reasons to avoid highlighting the evidence to the jury. He further urges that under the facts and circumstances of this case, where delivery of the instruction is in conflict with the defendant’s trial strategy, this court should rule that the trial court improperly delivered the instruction his counsel opposed. We conclude that the charge as given accurately reflects our law, and, accordingly, we are not persuaded by the defendant’s argument.

Section 1-4 of the Connecticut Code of Evidence expressly provides that upon receipt of a request for a limiting instruction on the use of constancy of accusation testimony, the court “shall restrict the evidence to its proper scope.” Here, the state made such a request. It is of some significance that § 1-4 of the Connecticut Code of Evidence uses the word “may” to indicate the court’s general authority to limit the use of evidence to the proper scope for which it was admitted. However, the code uses the word “shall” to designate the court’s duty to do so where a proper request is made. See Conn. Code Evid. § 1-4.

In State v. Tryon, supra, 145 Conn. 309, our Supreme Court made it clear that “[w]here evidence, although inadmissible for one purpose, is admissible and is offered for another and proper purpose, it should be admitted with a limitation to the proper purpose.” We therefore reject the defendant’s claim that a trial strategy of defense counsel should hobble the court from giving the constancy instruction that both the case law and the Connecticut Code of Evidence require when a proper request has been made.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer to the victim of the defendant’s risk of injury to a child conviction throughout this opinion as the complaining witness.

       The defendant withdrew his state constitutional due process claims in his reply brief.

       The court gave defense counsel ample opportunity to argue on the record his position against giving the constancy charge.

       The legislature enacted General Statutes § 54-84 (b) providing that “the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” However, that mandate is excused by the same statute if “the accused requests otherwise.” General Statutes § 54-84 (b). Contrary to this, the Connecticut Code of Evidence gives no such option to the defendant with respect to a jury instruction on the proper permitted use of constancy of accusation testimony.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHADWICK ST. LOUIS
    (AC 34621)
    Lavine, Alvord and Peters, Js.

      Argued September 10
    officially released October 15, 2013

      Deborah G. Stevenson, assigned counsel, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

A trial court generally loses jurisdiction over a sentence that it has imposed once that sentence has begun to be served. Practice Book § 43-22 embodies a common-law exception to this rule, wherein a trial court can at any time, even after the sentence has begun, correct an illegal sentence or sentence that has been illegally imposed. The principal issue in this case is whether the trial court has jurisdiction to address a motion to correct an illegal sentence, filed pursuant to § 43-22, where the defendant’s claim does not attack the legality of the sentence or the sentence proceedings. We hold that the trial court does not have such jurisdiction and, accordingly, reverse the judgment and remand the case with direction to render judgment dismissing the motion to correct an illegal sentence.

In a single count information dated March 10, 2009, the state charged the defendant, Chadwick St. Louis, with murder in violation of General Statutes § 63a-54a. The defendant denied his guilt and waived his right to a trial by jury. Following a trial, a three judge panel found the defendant guilty and sentenced him to a term of fifty years imprisonment. The judgment was affirmed in State v. St. Louis, 128 Conn. App. 703, 707, 18 A.3d 648, cert. denied, 302 Conn. 945, 30 A.3d 1 (2011). On January 9, 2012, the defendant filed the motion in question, arguing that the trial court lacked jurisdiction to sentence him because the prosecution had not established precisely where the murder had taken place. After a hearing, the court denied the motion. This appeal followed.

The facts of the underlying offense are set forth in the defendant’s direct appeal, State v. St. Louis, supra, 128 Conn. App. 706-708, and are as follows: “Christopher Petrozza worked for the defendant in his landscaping business. Petrozza and the defendant also socialized together outside of the workplace, and the defendant became financially indebted to Petrozza.

“On September 14, 2006, Petrozza purchased a 1998 Audi for $5789 in cash. After purchasing the vehicle, Petrozza was short on funds and on September 29, 2006, Petrozza’s mother, with whom he resided, advised him to collect the money that was owed to him by the defendant. On this date, Petrozza went to the defendant’s home in Manchester. While Petrozza was at the defendant’s home, the defendant intentionally caused Petrozza’s death by striking him with a skid-steer loader, commonly known as a ‘Bobcat.’ After killing Petrozza, the defendant took Petrozza’s driver’s license and buried Petrozza’s body in the rear yard of his residence, covering the grave with large ornamental rocks.

“After killing Petrozza, the defendant broke into a vehicle parked at his daughter’s day care center and took a purse that contained a checkbook. The defendant went to a credit union and attempted to use Petrozza’s license to cash a check from the stolen checkbook that he had forged and made payable to Petrozza.

“On February 19, 2007, the Manchester police arrested the defendant on charges unrelated to the disappearance of Petrozza. The defendant indicated during the booking process that he had information relevant to the individual who was responsible for recent car break-ins. Several days later, the defendant told the police that Petrozza was responsible for the burglaries. In response, the police prepared a warrant for the arrest of Petrozza.

“At his own initiative, the defendant continued to communicate with the Manchester police, the state police and the office of the state’s attorney while he was incarcerated. Despite having provided police with information about criminal activity perpetrated by third parties, the defendant was not offered a reduced sentence for the crimes related to his February 19, 2007 arrest. The defendant then began to tell the police about the existence of a dead body in an effort to receive leniency for the February 19, 2007 arrest. After he met with the Manchester police several times, on June 5, 2007, the defendant admitted to having caused the death of Petrozza and described the circumstances of Petroz-za’s death as an ‘accident.’ On June 19, 2007, the police recovered Petrozza’s body from the yard of the defendant’s residence.” (Footnote omitted.)

After being convicted and sentenced, the defendant filed a motion to correct an illegal sentence, pursuant to Practice Book § 43-22. The only argument raised by the defendant in this motion was that “the sentencing statute was inapplicable, when the trial court lacked jurisdiction to try the defendant, to convict him, or to impose the sentence.” The court, in denying the motion, stated: “The court does believe that the Appellate Court in their May 17, 2011 decision did indicate that [the claim of lack of jurisdiction] was without merit. The court finds that the allegation that there is no jurisdiction simply because a precise location of where the actual murder may have occurred does not in any way cause a court to vacate a sentence. The sentence that was imposed by the three judge panel was a legal sentence and, therefore, the court affirms that sentencing. So, the motion to correct the illegal sentence is denied.”

On appeal, the defendant claims that the court abused its discretion in denying the motion to correct an illegal sentence. As a preliminary matter, we must resolve a jurisdictional matter raised by the state. The state argues that the court did not have subject matter jurisdiction to consider the defendant’s motion to correct an illegal sentence, as the defendant did not assert a viable claim that the court imposed an illegal sentence. We agree.

“We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532, 911 A.2d 712 (2006). Our Supreme Court has instructed that “in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 739, 930 A.2d 644 (2007).

“Although the [trial] court loses jurisdiction over [a] case when [a] defendant is committed to the custody of the commissioner of correction and begins serving [his] sentence . . . [Practice Book] § 43-22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition. . . . Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of § 43-22, the court lacks jurisdiction to entertain it.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 108 Conn. App. 486, 488, 948 A.2d 389 (2008); see also State v. Lawrence, 281 Conn. 147, 155, 913 A.2d 428 (2007). “[I]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding [itself] . . . must be the subject of the attack.” (Internal quotation marks omitted.) State v. Casiano, 282 Conn. 614, 625, 922 A.2d 1065 (2007). “[T]o invoke successfully the court’s jurisdiction with respect to a claim of an illegal sentence, the focus cannot be on what occurred dining the underlying conviction.” State v. Koslik, 116 Conn. App. 693, 699, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).

“Connecticut courts have considered four categories of claims pursuant to § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable.” (Citations omitted; internal quotation marks omitted.) State v. Lawrence, supra, 281 Conn. 156-57. “[I]f a defendant’s claim falls within one of these four categories the trial court has jurisdiction to modify a sentence after it has commenced. ... If the claim is not within one of these categories, then the court must dismiss the claim for a lack of jurisdiction and not consider its merits.” (Citation omitted.) State v. Koslik, supra, 116 Conn. App. 698-99.

The defendant’s sole claim before the court in filing his motion to correct an illegal sentence was that the court lacked jurisdiction because of the uncertainty of the crime scene’s precise location. This claim does not call into question the legality of the sentencing proceeding and does not fall within any of the categories set forth previously. Instead, it is more properly viewed as a collateral attack on the underlying conviction, one that has already been addressed by this court in the defendant’s previous appeal, and rejected. See State v. St. Louis, supra, 128 Conn. App. 729-30 (“[t]here was evidence presented at trial that the crime took place at the defendant’s residence, and the court concluded that on September 29, 2006, the defendant killed Petrozza at the defendant’s residence in Manchester”). As such, the court lacked jurisdiction to consider the defendant’s claim under Practice Book § 43-22 and therefore should have dismissed the defendant’s motion, rather than denying it. See State v. Tabone, 301 Conn. 708, 715, 23 A.3d 689 (2011) (“[w]hen atrial court mistakenly denies a motion instead of dismissing it for lack of subject matter jurisdiction, the proper remedy is to reverse the order denying the motion and remand the case with direction to dismiss the motion”); see also State v. Francis, 69 Conn. App. 378, 384-85, 793 A.2d 1224 (holding that trial court improperly denied motion to correct an illegal sentence and remanding to dismiss for lack of jurisdiction), cert. denied, 260 Conn. 935, 802 A.2d 88, cert. denied, 537 U.S. 1056, 123 S. Ct. 630, 154 L. Ed. 2d 536 (2002).

The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment dismissing the defendant’s motion to correct an illegal sentence.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person ....’’

       The fifty year sentence imposed by the court fell within the statutory limits for the class A felony of murder. General Statutes § 53a-35a (2) provides for “a term not less than twenty-five years nor more than life . . . .”

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”


text:
    IN RE JOSEPH W., JR., ET AL.

    (AC 35555)
    (AC 35574)
    Lavme, Alvord and Peters, Js.

      Argued September 10
    officially released October 9, 2013

      David J. Reich, for the appellant in AC 35655 (respondent father).

      David B. Rozwaski, for the appellant in AC 35574 (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee in both cases (petitioner).

      Geraldine M. Menn, for the minor children in both cases.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       October 9, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The respondent, Karin H. (mother), and the respondent, Joseph W., Sr. (father), each appeal from the judgments rendered in favor of the petitioner, the Commissioner of Children and Families (commissioner), in which the trial court found that the respondents’ minor children, Joseph W., Jr., and Daniel W. (children), were neglected, and then terminated the respondents’ parental rights with respect to both children. In AC 35555, the father claims that the evidence as to him was insufficient for the court to find that both children were neglected under the doctrine of predictive neglect. In AC 35574, the mother claims that the court improperly (1) denied her request for relief under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., (2) rendered adjudications of neglect as to both children, and (3) granted the petitions to terminate her parental rights. We affirm the judgments of the trial court.

The following is a brief summary of the facts and procedural history of this matter. The Department of Children and Families (department) has been involved with the mother since 2002, when her daughter, who is not this father’s child, was bom and subsequently removed from the mother’s custody by the commissioner. In 2006, the respondents’ son, Joseph W., Jr. (Joseph), was bom. Within three days, the commissioner filed an ex parte motion for an order of temporary custody, which was granted, and a neglect petition. After a contested hearing, the court, C. Taylor, J., sustained the temporary custody order, and Joseph was placed in a foster home. The respondents’ second son, Daniel W. (Daniel), was bom in 2006, and the commissioner filed an ex parte motion for an order of temporary custody, which was granted, and a neglect petition a few days following his birth. After scheduling a contested hearing on the order of temporary custody, the court, Bear, J., sustained the order by agreement of the parties. Daniel was placed in the same foster home as Joseph.

The first trial on the neglect petitions was held on August 2, 2007. The mother pleaded nolo contendere, but the father did not enter a plea. No evidence was presented, and the court, Wilson, J., rendered adjudications of neglect for both children and committed them to the custody of the commissioner. Thereafter, the commissioner filed petitions to terminate the respondents’ parental rights with respect to both children and, following a trial, the court, Olear, J., granted the petitions. The respondents appealed from the judgments to this court, which reversed the judgments of the trial court. See In re Joseph W., 121 Conn. App. 605, 997 A.2d 512 (2010). Ultimately, our Supreme Court affirmed the judgment of this court and concluded that the judgments of the trial court should be reversed because the father improperly had been prevented from entering a plea at the neglect proceeding. The Supreme Court determined that the adjudications of neglect, on which the judgments terminating the respondents’ parental rights had been predicated, had to be opened. In re Joseph W., 301 Conn. 245, 267, 21 A.3d 723 (2011).

Shortly before the second trial on the neglect petitions for both children, the respondents sent a letter to the trial court in which they stated that they believed their rights under the ADA had been violated by the department. In that letter, they requested that the department provide an ADA coordinator to oversee the case. On the first day of trial, the court, Bentivegna, J., denied the request and proceeded with the trial. When the trial concluded, the court found by a fair preponderance of the evidence that both children were neglected under the doctrine of predictive neglect and committed the children to the care and custody of the commissioner. The respondents filed separate appeals from the adjudications of neglect. Our Supreme Court, although concluding that the trial court properly rejected the respondents’ ADA claims, reversed the judgments. In re Joseph W., 305 Conn. 633, 46 A.3d 59 (2012). The Supreme Court held that the trial court applied an improper standard of proof when it determined that the children were neglected under the doctrine of predictive neglect. Id., 646-48. The case was remanded to the trial court for a new trial.

On August 21, 2012, the commissioner filed a motion to consolidate the trial of the neglect and termination petitions. The court, Epstein, J., granted the motion on September 14, 2012. On December 3, 2012, which was the first day of trial, the father and the mother each filed a written statement requesting that ADA coordinators for the department and the judicial branch be present throughout the court proceedings. After hearing the parties’ arguments regarding these requests, the court, Keller, J., denied both requests because (1) the ADA claims previously had been raised and our Supreme Court concluded that alleged ADA violations are not a defense in child protection proceedings, and (2) the requests were not timely filed with the court.

During the six day trial, the court heard testimony from fourteen witnesses. Neither the mother, who attended only the first day of trial, nor the father testified. Dozens of exhibits were submitted to the court and, additionally, the court took judicial notice of court memoranda of previous hearings and court orders with respect to the children, including all specific steps, and the filing dates and allegations in the various pleadings. Additionally, the court took judicial notice of written and transcribed decisions pertaining to the mother’s daughter, which included the neglect proceeding and the subsequent termination of parental rights proceeding.

Following the trial, the court, in its 182 page memorandum of decision, stated that it had “fully considered the criteria set forth in the relevant statutes, as well as the credible and relevant evidence, applicable case law, demeanor and credibility of the witnesses and arguments of the parties in reaching the decisions reflected and the orders issued in this memorandum.” The court adjudicated the children neglected and granted the petitions to terminate the respondents’ parental rights as to both children. These appeals followed.

I

AC 35555

The father claims that the evidence was insufficient for the court to find both children neglected under the doctrine of predictive neglect. Specifically, he argues that he expressed a willingness to care for the children independently from the mother. He claims that if the court had made that finding, the evidence at trial was “insufficient to show that it ‘was more likely than not that, if [each] child remained in the current situation, [that] child would be [neglected as alleged in the petition].’ ” We disagree.

The record fully supports the court’s finding that the respondents presented as a single parental unit as of July 21, 2005, which was the adjudicatory date established in Joseph’s neglect petition. The court recited several instances in its memorandum of decision that reflected the respondents’ intent to raise their son jointly. With respect to Daniel, the court found that the evidence showed that they still were living together at the time of Daniel’s birth and that “[n]either parent expressed a credible willingness or desire to separate from the other and raise Daniel independently.” Of particular significance is the court’s finding that even if either of the parents had indicated a willingness to parent independently, the court would have reached the same determination as to predictive neglect. Again, the court’s memorandum of decision contains ample support for these determinations.

Although the father disputes the court’s findings, our thorough examination of the record and the arguments advanced on appeal leads us to conclude that he has not demonstrated any error that undermines the court’s judgment. The father’s claims were analyzed and resolved properly in the court’s complete and well reasoned memorandum of decision. See In re Joseph W., 53 Conn. Supp. 1, 79 A.3d 155 (2013). We adopt that decision as the proper statement of the relevant facts, issues and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See, e.g., In re Mariah P., 109 Conn. App. 53, 55, 949 A.2d 1292, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008).

II

AC 35574

A

The mother’s first claim is that the court improperly denied her request for relief under the ADA. Athough she had insisted that ADA coordinators for the department and the judicial branch be present throughout the court proceedings, the court responded that the ADA did not provide a defense to neglect and termination proceedings. Referring to our Supreme Court’s decision in In re Joseph W., supra, 305 Conn. 633, the court denied the mother’s request.

We agree with the trial court that this claim of the mother was raised and decided in In re Joseph W., supra, 305 Conn. 650-53. The mother claimed in In re Joseph W., as she claims in this appeal, that she is not asserting the alleged ADA violations as a defense, but rather as an affirmative claim that the department did not make reasonable efforts at reunification because it failed to make arrangements for her to have an ADA coordinator to assist her with the children. Our Supreme Court held: “Because she has failed to provide the court with any provision, either in the federal statute itself or under relevant state law, demonstrating that a violation of a parent’s rights under the ADA can be the basis for an appeal from an adjudication of neglect, we reject her claims on appeal.” Id., 652. We are bound by our Supreme Court’s holding; the mother’s ADA claim is without merit.

B

The mother’s second claim is that the court improperly rendered adjudications of neglect with respect to both children. Specifically, she argues: “The [mother] concedes that with respect to her case, there was a sufficient basis for an adjudication of neglect, however, she maintains that there was not a sufficient basis for neglect for the [father] and, as such, the trial court erred in its findings of neglect which would necessitate vacating the trial court’s order for termination of parental rights.”

We already have determined in part I of this opinion that the record fully supports the court’s findings that both children were neglected under the doctrine of predictive neglect. That determination, according to the court, applied whether the children were to be parented by the respondents together or whether they were to be parented independently by either respondent. Again, we refer to the trial court’s detailed and thoughtful decision for a discussion of the evidence that supports its findings and conclusions.

C

The mother’s final claim is that the court improperly granted the commissioner’s petitions to terminate her parental rights as to both children. She argues that the department failed to make reasonable efforts toward reunification. In particular, the mother claims: “The [department’s] failure to identify and implement appropriate services for the [mother] is tied in directly to the ADA claim that appropriate services were neither identified nor implemented to assist the [mother].”

This claim is addressed in part II A of this opinion. Our Supreme Court rejected this argument in In re Joseph W., supra, 305 Conn. 650-53. Accordingly, the mother’s claim fails.

The judgments are affirmed.

       The Supreme Court held: “We conclude, therefore, that the trial court must find that it is more likely than not that, if the child remained in the current situation, the child would be ‘denied proper care and attention, physically, educationally, emotionally or morally’; General Statutes (Rev. to 2011) § 46b-120 (8) (B); or would be ‘permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth . . . General Statutes (Rev. to 2011) § 46b-120 (8) (C) ....
      “We further conclude that, in neglect proceedings involving the doctrine of predictive neglect, the petitioner is required to meet this standard with respect to each parent who has contested the neglect petition and who has expressed a desire, or at least a willingness, to care for the child independently of the other parent. ... If the parents have indicated that they intend to care for the child jointly, however, or if the trial court discredits a parent’s claim that he or she intends to care for the child independently, the trial court may treat the parents as a single unit in determining whether the petitioner has met its burden of proving predictive neglect.” (Citations omitted; emphasis in original.) In re Joseph W., supra, 305 Conn. 646-48.

       While the respondents’ appeals were pending in the Supreme Court, the trial court, Bentivegna, J., terminated the respondents’ parental rights as to both children following a contested trial. After the Supreme Court reversed the adjudications of neglect, the respondents filed motions to vacate the judgments terminating their parental rights. Those motions were granted by the trial court, Upson, J., in August, 2012.

       The court noted that the case management order required that all motions had to be filed at least two weeks prior to the date of trial.

       In its memorandum of decision, the court stated that the trial dates had been selected well before the commencement of trial and that the mother did not provide the court or her attorney with any reason for her absence.

       In her appellate brief, the mother additionally claims that an ADA coordinator should have participated at the reunification stage to assist her in “obtaining specific programs [that] would have been suitable for a person with a psychiatric disability as is the case with [the mother].” The record discloses that the request for the ADA coordinator or representative was made by written request on the first day of trial and was directed only to the trial proceeding.


text:
    DEREK PERSON v. COMMISSIONER OF CORRECTION
    (AC 34227)
    Robinson, Bear and Pellegrino, Js.

      Argued September 9
    officially released October 22, 2013

      David B. Bachman, assigned counsel, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Richard K. Greenalch, Jr., special deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Derek Person, appeals from the judgment of the habeas court denying in part his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court erred in concluding that he had been afforded the effective assistance of trial counsel because the habeas court’s findings that trial counsel (1) informed the petitioner that there was an alternative plea option, and (2) thoroughly advised the petitioner as to the consequences of choosing a plea option with a range were clearly erroneous. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. On October 13, 2004, the petitioner was charged with, inter alia, robbeiy in the first degree in violation of General Statutes § 53a-134 (a) (2). On June 27, 2005, the petitioner entered a plea of guilty to one count of robbery in the first degree, pursuant to the following plea agreement: twenty years of incarceration, execution suspended after ten years as a “cap,” with a right to argue for less, but not to go below the mandatory statutory minimum of five years, with a period of probation and reasonable special conditions to be set by the court (range offer).

At the plea canvass, the petitioner indicated to the court, Carroll, J., that he had had adequate time to discuss the case and the decision to plead guilty with his attorney, Justin Smith, that he had gone over all of the state’s evidence against him, along with the nature and elements of the crime with Smith, that he understood the consequences of pleading guilty, and that he was satisfied with Smith’s representation. The court found that the petitioner’s plea was entered knowingly and voluntarily, with the assistance of competent counsel and that a factual basis for the plea existed. The court then accepted the guilty plea and ordered a pre-sentence investigation. On September 29, 2005, the court sentenced the petitioner to twenty years of incarceration, execution suspended after nine years, with five years of probation.

The petitioner filed an amended petition for a writ of habeas corpus claiming that Smith had failed to adequately advise him as to the consequences of choosing the range offer. At the habeas trial, the petitioner claimed that Smith had failed to inform him that the state had made an alternative plea offer in which the execution of the petitioner’s sentence would be suspended after eight years of incarceration, with a term of probation to be determined by the court (term of years offer).

The habeas court, Hon. John F. Mulcahy, Jr., judge trial referee, in its memorandum of decision, found that the petitioner knew of both plea offers and that Smith had thoroughly advised the petitioner of the consequences of choosing the range offer, and it concluded that the petitioner had been afforded effective assistance of trial counsel. Thus, the habeas court denied in part the petitioner’s amended petition for a writ of habeas coipus, and, on the granting of certification, the petitioner appealed to this court.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 429, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011). “A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support [the court’s finding of fact] ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) State v. Benjamin, 299 Conn. 223, 236, 9 A.3d 338 (2010).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Citation omitted; internal quotation marks omitted.) Ebron v. Commissioner of Correction, 307 Conn. 342, 351, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron, U.S. , 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013). “In a case . . . where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier [or alternative] plea offer . . . [this court must determine] whether he would have accepted the offer to plead pursuant to the terms earlier [or otherwise] proposed.” Missouri v. Frye, U.S. , 132 S. Ct. 1399, 1410, 182 L. Ed. 2d 379 (2012). Furthermore, our Supreme Court has held that, in order to find prejudice, we must also conclude that “the trial judge would have conditionally accepted the plea agreement if it had been presented to the court.” Ebron v. Commissioner of Correction, supra, 357.

I

The petitioner claims that the habeas court erred in finding that he knew of both plea offers before entering his guilty plea because such a finding was clearly erroneous. He argues that he presented unequivocal testimony that Smith did not advise him of both offers, and that Smith’s testimony was ambiguous on the issue, as he could not recall specific details concerning his conversation with the petitioner about the offers. The respondent, the Commissioner of Correction, argues that the petitioner’s amended petition for writ of habeas corpus conceded the fact that he knew of both plea options before entering his guilty plea. Additionally, the respondent argues that the habeas court credited Smith’s testimony, and, that, in light of that testimony, the habeas court’s finding that the petitioner knew of both plea options was not clearly erroneous. We agree with the respondent.

Smith testified that he met with the attorney who previously had represented the petitioner to discuss the case, and that he believed that it was at this point that he learned of the alternative offers. He also testified that he reviewed the state’s file and then met with the state’s attorney. Notes from Smith’s client file reflected both offers, although Smith testified that he was unsure of whether he took them after his meeting with the petitioner’s previous attorney, or after his discussion with the state’s attorney.

Smith also testified that he advised the petitioner of both offers. He testified that he advised the petitioner that he thought that they could get a better sentence than the terms of years offer because of the petitioner’s lack of criminal history, his apparent good character and Smith’s belief that the petitioner could get good character references. The habeas court found Smith to be credible.

The petitioner testified that Smith never told him about the term of years offer, and told him his only choice was between the range offer and trial. The petitioner’s testimony, however, was belied by his admission in his amended petition for a writ of habeas corpus in which he stated that he learned of the alternative plea offers sometime before entering his guilty plea.

“The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony. . . . Questions of whether to believe or to disbelieve a competent witness are beyond our review.” (Citation omitted; internal quotation marks omitted.) Cole v. Commissioner of Correction, 126 Conn. App. 775, 779, 12 A.3d 1065, cert. denied, 300 Conn. 937, 17 A.3d 473 (2011). In light of the habeas court’s findings as to the credibility of the witnesses, and the weight of the evidence, along with our review of the record, we conclude that the habeas court’s finding that the petitioner knew of both plea offers was not clearly erroneous.

II

The petitioner also claims that the habeas court erred in finding that Smith thoroughly advised him as to the consequences of accepting the range offer. The petitioner argues that the finding is clearly erroneous because Smith could not specifically recall any discussion he had had with the petitioner regarding the two offers, he could not recall the petitioner’s reaction to the two choices, and Smith mostly testified as to his general practice and personal thoughts on the case.

In addition to Smith’s previously discussed testimony, he also testified that approximately 50 percent of his practice was criminal defense, and that it was his general practice to advise his clients who were proposed a range offer that there was a risk of receiving the top of the range at sentencing. Additionally, Smith testified that he had advised the petitioner that even though taking the range offer was a risk, it was in the petitioner’s best interest to take that offer in light of the mitigating factors, which Smith believed would allow the petitioner to receive a suspended sentence of less than eight years. The habeas court again found Smith to be credible in his testimony.

The petitioner testified at the habeas hearing that Smith did not explain that he was exposed to the statutory five year minimum in taking the range offer and that he only learned of it during the plea canvass. Furthermore, the petitioner testified that he had no choice in accepting the range offer, and was coerced by Smith to enter a guilty plea. The petitioner’s testimony at the habeas trial, however, was contradicted by his testimony at the plea canvass. The petitioner answered affirmatively when asked by the trial court at his plea canvass if he had had adequate time and opportunity to discuss the case and his options with Smith. The petitioner also answered affirmatively, when asked if Smith explained that the charge of robbery in the first degree carried a mandatory minimum sentence of five years. The petitioner further indicated at the plea canvass that he was satisfied with Smith’s representation of him in this matter.

As noted, “the [habeas] court, as the trier of fact, [is] the sole arbiter of facts and credibility and [is] free to believe in whole or in part the [witness’] testimony. . . . The court also [is] free to draw reasonable inferences from that testimony when rendering judgment.” (Citation omitted.) Sanders v. Commissioner of Correction, 83 Conn. App. 543, 550, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). Because it was Smith’s general practice to inform his clients as to the risks of taking a range offer, and because of the petitioner’s contradictory testimony, it was reasonable for the habeas court to infer that Smith did meaningfully advise the petitioner as to the risks of accepting the range offer. Therefore, the habeas court’s finding that Smith thoroughly advised the petitioner as to the consequences of the range offer was not clearly erroneous.

The judgment is affirmed.

       The habeas court granted the petition as to the petitioner’s sentence review claim.

       Paragraph eight of the petitioner’s amended petition for a writ of habeas coipus states: “Sometime prior to June 27, 2005, the petitioner was presented with the option of entering a plea of guilty to one count of Robbery in the First Degree in exchange for either a sentence of [twenty] years, execution suspended after [eight], with probation to be determined by the court, or [twenty] years, execution suspended after [ten] as a cap with a right to argue for less, not to go below [five] years, with a period of probation to be determined by the court.”


author: SHELDON, J.

text:
    ALBERT WARD, ADMINISTRATOR (ESTATE OF ELBART WARD) v. WILLIAM RAMSEY ET AL.
    (AC 34905)
    DiPentima, C. J., and Sheldon and Bishop, Js.

      Argued June 3
    officially released October 29, 2013

      Ikechukwu Umeugo, for the appellant (plaintiff).

      David J. Robertson, with whom were Heidi M. Citano and, on the brief, AzadehRezvani, for the appel-lees (defendants).
   Opinion

SHELDON, J.

In this medical malpractice action, the plaintiff, Albert Ward, administrator of the estate of Elbart Ward (decedent), appeals from the summary judgment rendered in favor of the defendants, William Ramsey, a physician, and Connecticut Gastroenterology Consultants, P.C., on the basis of the trial court’s earlier preclusion of the testimony of his expert witness, a board certified gastroenterologist, that the defendants’ professional negligence proximately caused the death of the decedent. We conclude that the trial court improperly precluded the plaintiffs proffered causation testimony, and thus reverse the judgment of the court.

On April 15,2009, the plaintiff commenced this action against the defendants, alleging negligence in the care and treatment of the decedent. By way of an amended complaint dated July 24, 2009, the plaintiff alleged that on July 27, 2007, while the decedent was a patient at the Hospital of Saint Raphael in New Haven, Ramsey, a board certified gastroenterologist, treated the decedent for dysphagia by the insertion of a percutaneous endoscopic gastrostomy (PEG) feeding tube that perforated the decedent’s small intestine or bowel. The plaintiff alleged that, following this procedure, Ramsey failed to monitor the decedent, and thus failed to recognize that the decedent was exhibiting signs and symptoms of a perforated bowel, including severe abdominal pain and a distended abdomen. The plaintiff further alleged that, because of Ramsey’s failure to monitor the decedent postoperatively and his consequent failure to recognize the complications arising from the insertion of the PEG feeding tube, Ramsey failed to obtain a timely surgical consultation, and thereby caused delay in further treatment, as a result of which the decedent developed sepsis, suffered multiorgan failure and, ultimately, died on August 13, 2007.

On December 2, 2009, the plaintiff disclosed William M. Bisordi, a board certified gastroenterologist, as an expert witness who would testify at trial as to the defendants’ deviation from the standard of care and causation. On December 11, 2009, the plaintiff filed a revised disclosure of Bisordi. The defendants deposed Bisordi on June 2, 2011. At his deposition, Bisordi opined, inter aha, that, following the insertion of the PEG feeding tube, Ramsey failed to recognize a complication arising from it, specifically a perforation of the bowel, and that this failure to recognize the perforation ultimately caused the decedent’s death. Bisordi testified that if Ramsey had examined the decedent within a couple of hours after the procedure, that complication would have been realized, and “then the window [of] opportunity to treat that complication would have allowed the patient to be treated and not subsequently develop peritonitis, multiorgan failure, sepsis and death.”

On June 14, 2012, the defendants filed a motion in limine seeking to preclude Bisordi from testifying on the issue of causation on the ground that he was not qualified to testify on that subject in this case because only a surgeon could competently testify as to the decedent’s likely “surgical outcome,” and he is a gastroenter-ologist, not a surgeon. On June 26, 2012, the trial corut held a hearing on various motions in limine filed by the parties. Following argument by counsel, the corut granted the defendants’ motion in limine to preclude Bisordi from testifying as to causation and issued a written order stating: “The plaintiff has provided no evidence that Dr. Bisordi is qualified to testify as to proximate cause, which, under the facts of this case, requires the expert testimony of a surgeon.” The defendants thereafter moved for summary judgment on the ground that the plaintiff could not make out a prima facie case because he did not have an expert witness to testify as to proximate causation of the decedent’s death. The court agreed with the defendants, and thus granted their motion for summary judgment. This appeal followed.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).

Although our review of the trial court’s decision to grant the defendants’ motion for summary judgment is plenary, that decision was based upon the court’s prior evidentiary ruling precluding Bisordi’s causation testimony, which the plaintiff challenges on appeal. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. ... It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience [of] any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.” (Internal quotation marks omitted.) Milton v. Robinson, 131 Conn. App. 760, 772-73, 27 A.3d 480 (2011), cert. denied, 304 Conn. 906, 39 A.3d 1118 (2012).

With that standard of review in mind, we turn to the legal principles pertaining to medical malpractice cases. “[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons. . . . All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician’s conduct proximately cause the plaintiffs injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiffs injury. . . . This causal connection must rest upon more than surmise or conjecture. ... A trier is not concerned with possibilities but with reasonable probabilities. . . . The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question. . . .

“To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. . . . An expert . . . need not use talismanic words to show reasonable probability.” (Citations omitted; internal quotation marks omitted.) Sargis v. Donahue, 142 Conn. App. 505, 512-13, 65 A.3d 20 (2013). There are no precise facts that must be proved before an expert’s opinion may be received in evidence. See Waldron v. Raccio, 166 Conn. 608, 614, 353 A.2d 770 (1974).

“To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. ... As [our Supreme Court] observed . . . [l]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . . The second component of legal cause is proximate cause, which [our Supreme Court has] defined as [a]n actual cause that is a substantial factor in the resulting harm .... The proximate cause requirement tempers the expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty. . . . [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.” (Internal quotation marks omitted.) Phelps v. Lankes, 74 Conn. App. 597, 601-602, 813 A.2d 100 (2003).

In other words, “[pjroximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm .... [T]he inquiry fundamental to all proximate cause questions . . . [is] whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. . . . Additionally, we note that a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant’s conduct.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 124, 869 A.2d 179 (2005).

The plaintiff claims on appeal that the trial court improperly precluded Bisordi’s testimony as to causation on the ground that Bisordi is not qualified to testify as to causation in this case because he is not a surgeon. Although the court did not issue a detailed memorandum of decision setting forth the factual and legal bases for its preclusion of Bisordi’s causation testimony, a review of the transcript of the hearing on the defendants’ motion to preclude is helpful in ascertaining its rationale. During that hearing, the court posited: “I don’t think that he’s able to testify as to proximate cause, that has to come from a surgeon. Here’s the ramifications of the untimely failure to diagnose. Dr. Bisordi can’t testify to that because he just doesn’t know, quite frankly, that’s beyond the realm of his expertise. He gets you through the procedure into [p]ostprocedure monitoring and what the obligations of Dr. Ramsey would be, to turn it over to a surgeon in a consultation. But, then, when you get to that point, that’s where his expertise ends. He can testify in general terms that sepsis may lead to death, but, you—you’re missing all of the key components in there about what the delay meant for the chances of recovery here. . . . That whole part is missing.” The court also inquired: “Don’t you need to have a surgeon to say, look, if it had been done on the day that it should have been discovered, [the decedent’s] outcome would have been 90 percent. Waiting five hours, it was 85 percent. Waiting a day it was 50 percent. Waiting two days it was 20 percent. Waiting three days, he had no chance of survival. Don’t you need to have a surgeon testify to that in order to establish your wrongful death action?” The court insisted that the plaintiff needed an expert to testify as to “whether surgery was warranted, when it was warranted, what its results would have been, whether it would have changed the course of events for the decedent, what the chance of survival would have been. These are all things that a surgeon would be able to answer, particularly with comorbidity as has been indicated here ...."

Finally, the court concluded that, with Bisordi’s testimony, “[y]ou get right up to the ordering the [surgical] consult, and, then, from that point forward, you need an expert to say here’s what would have happened if Dr. Ramsey had done his job that day, I would have immediately ordered these diagnostic tests, I would have then seen the amount of air in the cavity. I would have then immediately ordered surgery, sent him to the [operating room], and I would have done this particular procedure. And he would have had, based on his comor-bidity, had this rate of survival, and I would have saved his life. That’s the expert that you need and that is missing from your case, and this, unfortunately, [is] critical to your case. Not, I’m a gastroenterologist, and you nick the bowel, bad stuffs going to come out and the patient’s going to die. . . . That doesn’t get proximate cause in this particular case. . . . You need to have that surgical expert who can, without speculation, testify, within reasonable medical probability, this is what I would have done, this is what I would have seen, this is what I would have done, and this is the reasonable outcome to be expected here, that this gentleman wouldn’t have died if I had done the surgery in this fashion, within this time frame. That’s how you get to the jury. You’re missing that whole part of it.”

The court’s rationale was further elucidated in its subsequent memorandum of decision granting the defendants’ motion for summary judgment, in which it characterized its earlier ruling precluding Bisordi’s testimony on causation as follows: “The court previously ruled that a surgeon must render the opinion that a surgical consult and more immediate surgery would have changed the course of events.” The court further explained: “The plaintiffs expert must testify that Dr. Ramsey’s conduct, or lack thereof, caused the decedent to suffer injury and death. In other words, the plaintiff must establish, not just that the complication which resulted from the PEG feeding tube led to the [decedent’s] demise, but that Dr. Ramsey’s failure to follow up with the [decedent] and call for a surgical consult in the horns following the procedure led to the [decedent’s] demise. For instance, expert testimony would be required as to the issue of what surgical options were available, when such options were viable, and whether they were foreclosed by lost opportunity caused by Dr. Ramsey.”

In so reasoning, the trial court adopted the defendants’ argument that, as a matter of law, this case was a “surgical outcome case,” which required a surgical expert’s testimony as to causation. We disagree. Although our legislature has set forth specific requirements for an expert who is offered to testify as to standard of care, it has not done so with causation testimony. As this court has noted, General Statutes § 52-184c pertains only to the standard of care in medical malpractice cases, not causation. Wallace v. St. Francis Hospital & Medical Center, 44 Conn. App. 257, 261 n.1, 688 A.2d 352 (1997). There is no law that sets forth specific requirements as to the qualifications of experts who testify as to causation in a medical malpractice case. Rather, “[m]edical specialties overlap, and it is within a court’s discretion to consider that fact in exercising its discretion to deem the witness qualified to testify. It is not the artificial classification of a witness by title that governs the admissibility of the testimony, but the scope of the [witness’] knowledge of the particular condition.” Marshall v. Hartford Hospital, 65 Conn. App. 738, 758, 783 A.2d 1085, cert. denied, 258 Conn. 938, 786 A.2d 425 (2001).

In support of the preclusion of Bisordi’s testimony, the defendants rely upon this court’s decision in Wallace v. St. Francis Hospital & Medical Center, supra, 44 Conn. App. 257. In Wallace, the plaintiff administrator of the estate of a patient who died of internal bleeding alleged that the defendant hospital’s failure to diagnose the patient and to perform surgery had caused the patient to lose his chance of survival. The trial court directed a verdict in favor of the defendant after determining that the plaintiff had failed to prove that the defendant’s conduct had led or contributed to the decedent’s death. Id., 258. Although this court determined that it was within the trial court’s discretion to rule that the plaintiffs proffered expert was not a surgeon, and was therefore not qualified to render an expert opinion on surgical outcome; id., 261; we further noted that “the plaintiff offered no evidence as to the rate, cause or origin of the decedent’s internal bleeding. Yet, the plaintiff wanted [her expert] to render his expert opinion as to whether the defendant’s failure to deliver the decedent to surgery led to his death. If [her expert] had been permitted to render an opinion on the question of a surgical outcome on the decedent, however, it would have been based not on fact but on speculation. . . . [B]ecause no evidence was introduced concerning the source or cause of the decedent’s internal bleeding, we conclude that it was within the trial court’s discretion to conclude that there was not a substantial factual basis on which an expert opinion could be rendered.” (Emphasis added.) Id., 261-62.

We agree with the plaintiff that Wallace is distinguishable from the case at hand. In Wallace, although this court noted that the proffered expert was not a surgeon, and thus could not testify as to surgical outcome, we emphasized the fact that there was no evidence upon which the expert could base his opinion. The primary and dispositive distinction between the present case and Wallace is that, in Wallace, no evidence was presented as to the source or cause of the decedent’s internal bleeding and, without that evidence, any opinion as to the cause of death would necessarily have been speculative. Here, by contrast, it is undisputed that Ramsey perforated the decedent’s bowel when inserting the PEG feeding tube and that, as a result of that perforation, the decedent developed sepsis and died.

Bisordi’s proffered testimony on causation was based upon his training, education, practice, and experience. As a board certified gastroenterologist, he knows that perforation of the bowel is a common complication of insertion of a PEG feeding tube; he knows that the greatest risks of bowel perforation are sepsis and death; he knows that, in the event of a bowel perforation, the proper course of treatment is to close the perforation by surgical means to stop the leaching of poisons into the patient’s system; he knows that timely surgical intervention to repair a perforated bowel is essential to a favorable outcome for the patient; he thus knows, is able to recognize, and is trained to carefully monitor his patients for the signs and symptoms of bowel perforation to ensure timely diagnosis of bowel perforation and appropriate surgical intervention. The plaintiff claims that Bisordi is “qualified to render an opinion regarding the necessity to close a hole that has been created by the gastroenterologist, and that without closing the perforation, the toxins and bacteria would continue to seep into the abdominal cavity and infect the patient’s systems. As a [board certified] gastroenterologist, Dr. Bisordi is familiar with the prognosis of patients who have a perforated bowel diagnosed and repaired in a timely fashion as opposed to patients whose diagnosis and repair is delayed.” We agree.

On the basis of that knowledge and experience as a board certified gastroenterologist, upon which he relied in reviewing the decedent’s medical records and autopsy report, Bisordi opined, with a reasonable degree of medical probability, that Ramsey’s negligence in failing to monitor the decedent adequately and to obtain a timely surgical consult resulted in a delay that ultimately led to the decedent’s death. The harm suffered by the decedent, sepsis and death, are unquestionably of the same general nature as the foreseeable risk created by Ramsey’s alleged negligence. See Monk v. Temple George Associates, LLC, supra, 273 Conn. 124. Although this is not a case where the facts would require a jury to find that the defendants’ acts were the sole proximate cause of decedent’s death, it is also not a case where the defendants’ actions “were so far removed from the actual occurrence producing the injury that they become mere incidents of the operating cause.” (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 306 Conn. 558.

On the basis of the foregoing, we conclude that the trial court abused its discretion by precluding Bisordi from testifying on the issue of causation on the ground that he is not a surgeon. Instead of treating his lack of that credential as dispositive, the court should have examined the full range of Bisordi’s professional familiarity with the cause of, proper treatment for and likely prognosis of patients timely diagnosed with perforated bowels to determine if he was competent to offer expert testimony that the defendants’ failure to monitor the decedent for the signs and symptoms of that dangerous complication proximately caused his sepsis and resulting death. Had it done so on the basis of the record before it, where undisputed evidence of Bisordi’s professional familiarity with these matters as a board certified gastroenterologist was substantial, the court should have denied the defendants’ motion to preclude, and, accordingly, their subsequent motion for summary judgment in ruling that only a surgeon would be qualified to testify as to causation in this case. In so doing, the court erred in concluding that Bisordi was not qualified to testify as to causation, and thus improperly granted the defendants’ motion to preclude Bisordi’s causation testimony. We further conclude that the court’s summary judgment in favor of the defendants, rendered on the basis of that erroneous evidentiary ruling, was also improper.

The judgment is reversed and the case is remanded with direction to deny the defendants’ motions to preclude the plaintiffs expert testimony and for summary judgment and for further proceedings according to law.

In this opinion the other judges concurred.

       The plaintiff also claims that the court erred in denying his motion to preclude the testimony of the defendants’ expert witness. Because we reverse the judgment on other grounds, we decline to address this claim.

       Perforation of the bowel is a known risk associated with the insertion of a PEG feeding tube and the plaintiff does not allege that the perforation of the bowel of the plaintiffs decedent was the result of negligent conduct by Ramsey.

       We note that Bisordi’s qualifications, as set forth in both December, 2009 disclosures, never changed, but the defendants did not seek to preclude his testimony until two and one-half years later, on the eve of trial.

         At that hearing, the court posited that even if Ramsey was negligent, “the result would have been the same, the untimely demise of the decedent, because somebody down the chain didn’t do what they were supposed to do, regardless of whether . . . Ramsey did what he was supposed to do.” In so stating, it appears that the court may have assumed that the intervening negligence of the surgeons, in waiting to operate on the decedent, may have relieved Ramsey of liability. As noted herein, such an assumption is contrary to our law. See Monk v. Temple George Associates, LLC, supra, 273 Conn. 124.

       By the defendants’ reasoning, anytime a patient must undergo a remedial course of treatment or procedure, causation must be proven, as a matter of law, via testimony of a medical expert of the same specialty as the health care provider who is administering the remedial measures. That argument finds no support in our law.

       We note that the plaintiff filed a motion to preclude the testimony of the defendants’ expert, a sturgeon, as to the standard of cáre of a gastroenter-ologist. In opposition to that motion, the defendants argued that, although their expert does not perform the procedure of inserting PEG feeding tubes, he does perform other surgical procedures and thus, based upon his experience, has knowledge of the standard of care regarding postoperative care. At the hearing on the motion to preclude, the defendants ironically argued, inter alia; “I believe that it’s an overlapping specialty, these are one of those areas in which he should be permitted to testify because of the overlapping sort of specialty and the fact that he is a surgeon.”