author: ROBINSON, J.

text:
    DAVEY B.
      v. COMMISSIONER OF CORRECTION
    (AC 29456)
    Flynn, C. J., and Robinson and Berdon, Js.

      Argued February 6
    officially released June 9, 2009

      John R. Williams, for the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Erika L. Brookman, deputy assistant state’s attorney, for the appellee (respondent).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

ROBINSON, J.

The petitioner appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. Following the denial, the court granted certification to appeal to this court. On appeal, the petitioner claims that the court improperly (1) placed the burden on him to prove the absence of a tactical reason for counsel’s trial deficiencies and (2) held that the petitioner’s testimony could not be accepted without independent corroboration. We affirm the judgment of the habeas court.

The facts and procedural history underlying the petitioner’s appeal were recounted in the decision of our Supreme Court disposing of his direct appeal. “[The present matter] involves two cases that were tried together. The first case involves the [petitioner’s] alleged sexual assault of his stepdaughter, Jane Doe, beginning in May or June, 1997. Jane, then thirteen years old, eventually complained to her mother, T.B., that the [petitioner] was touching her in an inappropriate manner. Pursuant to Jane’s allegations, on September 7, 1997, T.B. brought her to state police Troop D barracks to file a complaint. Trooper Thomas Clark took written statements from both Jane and T.B., and, in accordance with procedure, notified the department [of children and families (department)]. Thereafter, T.B. obtained a restraining order to remove the [petitioner] from the family home. The department conducted its investigation simultaneously with the state police. Kathleen Payne, a department investigator, met with both Jane and the [petitioner]. Despite Jane’s continued allegations, the [petitioner] denied any wrongdoing and claimed that he accidentally could have touched Jane’s breasts while wrestling with her. Payne concluded that allegations of sexual abuse had been substantiated and sent a letter to T.B. reiterating the need to protect her children. The department, thereafter, closed its file in November, 1997.

“The second case involves the [petitioner’s] alleged physical assault of his stepson, John Doe, on or about September 4, 1997. A few days after the incident, John, then eleven years old, complained of back pain to his grandmother. Upon lifting his shirt, John’s grandmother noticed bruises and notified John’s mother, T.B. After observing the bruises on John’s back, T.B. took him to state police Troop D barracks to file a complaint on September 7, 1997. Clark observed the bruises and had photographs taken to document John’s condition. Clark took written statements from both John and T.B., and, subsequently, notified the department of the incident. On behalf of the department, Payne met with both John and the [petitioner]. The [petitioner] informed Payne that he went to spank John on his buttocks, but that John moved causing the [petitioner] to miss and strike John in the back. Payne concluded that the allegations of physical abuse had been substantiated and sent a letter to T.B. reiterating the need to protect her children. The department, thereafter, closed its file in November, 1997.

“On December 2, 1997, the [petitioner] was arrested on two separate warrants related to these allegations. The state filed two substitute informations on May 19, 1999, and the [petitioner], subsequently, was tried on both sets of charges before a single jury. On June 25, 1999, the jury returned a verdict of guilty on each count charged within the informations. On September 21, 1999, the court, Potter, J., imposed a total effective sentence of five years imprisonment, execution suspended after two years, and five years probation.” State v. [Davey B.], 256 Conn. 742, 745-47, 775 A.2d 966 (2001). The convictions were affirmed by our Supreme Court on July 17, 2001. Id., 745.

On September 13, 2004, the petitioner filed a petition for a writ of habeas corpus alleging that his trial counsel, Robert McCoy, rendered ineffective assistance of counsel. He alleges that McCoy’s representation was ineffective in two ways: first, by failing to object to the joinder of the two separate informations for trial; second, for failing to object and to preserve a claim arising from the state’s impeachment of the petitioner’s testimony with evidence of the petitioner’s postarrest silence.

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. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Necaise v. Commissioner of Correction, 112 Conn. App. 817, 820, 964 A.2d 562 (2009). With these principles in mind, we now begin a discussion of the petitioner’s claims.

I

The petitioner first claims that the court improperly placed the burden of proof on him to prove the absence of a tactical reason for his trial counsel’s deficient performance. It is his contention that it was the state’s burden in the underlying habeas action to demonstrate that the failure of the petitioner’s trial counsel to object to the joint trial was a tactical decision. We disagree.

“In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

“The first part of the Strickland analysis requires the petitioner to establish that . . . counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .” (Internal quotation marks omitted.) Necaise v. Commissioner of Correction, supra, 112 Conn. App. 821. “Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Emphasis added; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186 (2009), quoting Strickland v. Washington, supra, 466 U.S. 689.

Here, the petitioner’s argument that the state has the burden of proof to establish that his trial counsel made a tactical decision is in direct contradiction of well established authority and, accordingly, is without merit. The court properly placed the burden on the petitioner to prove his Strickland claim.

II

The petitioner next claims that the court improperly concluded that his habeas testimony could not be accepted without independent corroboration.

The following additional facts are relevant to our review of the petitioner’s claim. On direct appeal to our Supreme Court, the petitioner alleged that the trial court improperly permitted the state to impeach his testimony with evidence of his postarrest silence. State v. [Davey B.], supra, 256 Conn. 749-50. Specifically, he argued that “the cross-examination violated his right to remain silent because the questioning revealed that he had chosen to remain silent after his arrest and receipt of Miranda warnings.” Id., 750. After reviewing this claim, the court made this conclusion: “Contrary to the [petitioner’s] argument, the record is not clear whether his conversations with the police transpired after or before his arrest or receipt oí Miranda warnings. It is essential to know the timing of these conversations because the use at trial of silence prior to the receipt of Miranda warnings does not violate due process. . . . Because the record does not indicate whether Miranda warnings were given before the [petitioner’s] conversations with the police took place, the record is inadequate for review under [State v. Golding, 213 Conn. 239-40, 567 A.2d 823 (1989)].” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. [Davey B.], supra, 751.

Thereafter, in his petition for a writ of habeas corpus, the petitioner alleged that he had received ineffective assistance of counsel arising, in part, from McCoy’s failure to object to the impeachment and to preserve an adequate record for review of this claim. At the habeas proceeding, the petitioner testified to establish the timing of his conversations with the police. No additional evidence on this issue was presented.

In the memorandum of decision, the court made the following determination. “[T]he petitioner claims that trial counsel was ineffective because McCoy failed to object ... to his silence and request for the advice of counsel. It is virtually impossible for this court to address these claims because McCoy did not testify at the habeas corpus trial. This court has been presented with the thorny task of adjudicating an ineffective assistance of counsel claim by reviewing virtually the identical record presented to the Supreme Court, albeit supplemented now by petitioner’s minimal testimony. Simply put, there is no credible evidence shedding any light onto McCoy’s trial strategy, the tactics he employed to effectuate that strategy and whether McCoy’s representation fell below the standard this court must apply to determine whether his performance was deficient.” The court acknowledged that the petitioner had testified as to the timing of his conversations with the police; however, it concluded that the testimony was self-serving and unsupported by credible proof.

The determination of whether McCoy rendered ineffective assistance of counsel through his failure to object and to preserve an adequate record for appellate review is dependent on whether there was merit to the petitioner’s impeachment claim. As noted by our Supreme Court in Davey B., the timing of the petitioner’s conversations with the police is an essential element of this claim because the use at trial of silence prior to the receipt of Miranda warnings does not violate due process. State v. [Davey B.], supra, 256 Conn. 751. The only evidence presented at the habeas proceeding regarding the timing issue was through the testimony of the petitioner, and the court, as the trier of fact, is “the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Necaise v. Commissioner of Correction, supra, 112 Conn. App. 820. Here, the court concluded that the petitioner’s self-serving testimony, without the benefit of corroborating evidence, was not credible. This determination properly is within the purview of the fact finder; accordingly, the petitioner’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The petitioner submitted seven exhibits in support of his petition, including: (1) the exhibit packet for the underlying joint trial, (2) the appellate court record, (3) the supplemental record, (4) his appellate brief, (5) the state’s appellate brief, (6) his appellate reply brief and (7) a copy of the decision in State v. [Davey B.], supra, 256 Conn. 742.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JULIO DIAZ MARRERO v. COMMISSIONER OF CORRECTION
    (AC 29695)
    Graendel, Harper and Foti, Js.
    Submitted on briefs April 13
    officially released May 12, 2009
   Per Curiam.

The appeal is dismissed.


text:
    GLORIA PALMIERI v. CINDY SCANIFFE ET AL.
    (AC 29958)
    Flynn, C. J., and Lavine and Hennessy, Js.
    Submitted on briefs April 13
    officially released May 12, 2009
   Per Curiam.

The judgment is affirmed.


text:
    SHAWNA L. CASPER v. WATERBURY HOSPITAL HEALTH CENTER
    (AC 29809)
    DiPentima, Graendel and Peters, Js.
    Argued April 15
    officially released May 12, 2009
   Per Curiam.

The judgment is affirmed.


text:
    THEODORE E. BROCHU v. PROGRESSIVE NORTHWESTERN INSURANCE COMPANY
    (AC 29682)
    Bishop, Beach and Peters, Js.
    Argued April 16
    officially released May 12, 2009
   Per Curiam.

The judgment is affirmed.


text:
    DONALD GIBSON v. COMMISSIONER OF CORRECTION
    (AC 30086)
    DiPentima, Robinson and Alvord, Js.
    Submitted on briefs April 28—officially
    officially released May 12, 2009
   Per Curiam.

The appeal is dismissed.


text:
    LARRY SCALES v. COMMISSIONER OF CORRECTION
    (AC 29458)
    Beach, Robinson and McDonald, Js.
    Argued April 15
    officially released May 12, 2009
   Per Curiam.

The judgment is affirmed.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ANDREW ALEXANDER
    (AC 29769)
    Bishop, Harper and Foti, Js.
    Argued March 18
    officially released June 9, 2009

      James B. Streeto, assistant public defender, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

This appeal concerns the contours of the protections provided by the fourth amendment to the federal constitution. The defendant, Andrew Alexander, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, of possession of more than one kilogram of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), interfering with an officer in violation of General Statutes § 53a-167a (a), forgery in the second degree in violation of General Statutes § 53a-139 (a) (3) and possession of marijuana with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence after concluding improperly that he had failed to sustain his burden of establishing a subjective expectation of privacy in a common hallway in the apartment building in which he lived. We disagree and, accordingly, affirm the judgment of the trial court.

In December, 2007, the court held hearings on the defendant’s motion to suppress. At those hearings, the state presented evidence of the following events that led to the defendant’s arrest. In March, 2006, Robert Martin and Christopher Lee, detectives with the Bridgeport police department (department), were assigned to the fugitive task force. During that assignment, they were part of Operation Park City, a joint operation consisting of the department, the state police, the United States Marshals Service and the Federal Bureau of Investigation. The operation’s purpose was to serve multiple warrants secured by each entity over a two day period in and around Bridgeport.

On March 29, 2006, Martin and Lee went to 146 to 152 Dover Street, a single building consisting of six apartments, to serve eight rearrest warrants on Craig Wilson for failure to appear in the first and second degree. Martin had received information from a police informant that Wilson was at the address. When they arrived at the address, Martin and Lee, dressed in plain clothes with bulletproof vests and their badges hanging on chains around their necks, mounted the front porch. They were confronted with four doors numbered 146, 148, 150 and 152; of these, only number 148 was unlocked. They also noticed that the entire first floor appeared to be vacant with ‘for rent’ and ‘for sale’ signs posted in various windows. Martin called the telephone number on one of the signs and spoke with Fernando Ocampo, the owner of the building. Ocampo told Martin that only the third floor apartment at number 148 was occupied by a young man and his grandmother, who were Jamaican.

Adjacent to the door numbered 148 were three unmarked doorbells. Martin and Lee, for reasons of safety, chose not to announce their presence by way of ringing any doorbell. They entered the unlocked door. Upon entry, they came upon stairs that led to the second floor and climbed them. After passing through the second floor landing, they went up another flight of stairs that dead-ended at the door of the defendant’s apartment. Once there, Martin knocked on the door, but did not announce that he and Lee were police officers. The defendant opened the door, without asking who was there, with a smile on his face.

Immediately upon the defendant’s opening the door, Martin smelled an overwhelming odor of marijuana, so powerful as to suggest to him that there was a very large quantity of the substance present in the apartment. Due to his training and experience, Martin surmised at once that the presence of such a quantity of marijuana suggested the strong probability that weapons could also be present and decided to pat down the defendant. Martin tried to pat down the defendant’s waistband with both hands, but the defendant retreated into the apartment. Attempting to secure the defendant, who continued to retreat into the apartment as he resisted Martin’s efforts, Martin tried to handcuff the defendant’s left wrist.

The detectives entered the defendant’s kitchen, and a struggle ensued. During the struggle with the defendant, Martin saw in plain view on a kitchen table a pile of marijuana and a scale. After a few minutes, Martin handcuffed the defendant and determined that he possessed no weapons. He then approached the pile of marijuana on the nearby table and discovered a large bag containing more marijuana. In total, there were more than nine pounds of marijuana found in the defendant’s kitchen. No other individuals were discovered during a protective sweep of the apartment; however, at the defendant’s insistence of retrieving a telephone number from his bedroom, Martin discovered several rolls of currency on the defendant’s dresser, which were seized along with the contraband.

In its June 2,2007 memorandum of decision, the court set forth the facts that it found to support its denial of the defendant’s motion to suppress, generally accepted the state’s evidence as accurate and noted that the defendant’s testimony was not credible. It also found that 148 Dover Street was functionally a two-family house with a common hallway for egress and ingress. The court further found that the entry door to this hallway was unlocked when the detectives entered. Additionally, the court found that there was no evidence that other individuals were excluded from the hallway or that the defendant had the right to exclude others. As a result, the court found that the defendant had failed to sustain his burden of establishing that he had a subjective expectation of privacy in the hallway, and, even if he had, it was not one that society would recognize as reasonable.

On the basis of these facts and after the denial of his motion to suppress the evidence seized after his arrest, the defendant entered a plea of nolo contendere to possession of more than one kilogram of marijuana with intent to sell by a person who is not drug-dependent, interfering with an officer, forgery in the second degree and possession of marijuana with intent to sell within 1500 feet of a school. This appeal followed. Further facts will be put forth as necessary.

On appeal, the defendant’s sole claim is that the court improperly denied his motion to suppress after concluding that he did not have a protected privacy interest in the common hallway of 148 Dover Street leading from the entryway door to his third floor apartment. The defendant claims that his fourth amendment rights were violated by the detectives’ entry into the common hallway without either a warrant or a valid exception to the warrant requirement. We disagree and conclude that the defendant had neither a subjective expectation of privacy nor one that society would find reasonable and, therefore, that he lacks standing to challenge the warrantless entry of the police into the common hallway of his apartment building. The court properly denied his motion to suppress.

Preliminarily, we put forth the standard of review applicable to a motion to suppress. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citations omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

“The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994). Absent such an expectation, the subsequent police action has no constitutional ramifications. State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). In order to meet this rule of standing ... a two-part subjective/ objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances. . . . State v. Joyce, supra, 20. Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing; State v. Callari, 194 Conn. 18, 23, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985); and the trial court’s finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law. State v. Pittman, 209 Conn. 596,601, 553 A.2d 155 (1989).” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92-93, 675 A.2d 866 (1996).

“A tenant has a reasonable expectation of privacy ‘in areas where his use is exclusive, that is, where he has the legal right to control access and to exclude others.’ United States v. Holland, 755 F.2d 253, 255-56 [(2d Cir.), cert. denied, 471 U.S. 1125, 105 S. Ct. 2657, 86 L. Ed. 2d 274 (1985)] (legitimate expectation of privacy of apartment tenant exists only in an area subject to the tenant’s exclusive control); United States v. Arboleda, 633 F.2d 985, 991 (2d Cir. 1980) [cert. denied, 450 U.S. 917, 101 S. Ct. 1362, 67 L. Ed. 2d 343 (1981)] (apartment dweller’s legitimate privacy expectation exists in area where tenant has the right to exclude others); State v. Ragsdale, 381 So. 2d 492, 497 (La. 1980) (apartment dweller had reasonable expectation of privacy in completely enclosed patio outside his apartment unit); Commonwealth v. Hall, 366 Mass. 790, 794-95, 323 N.E.2d 319 (1975) (tenant has expectation of privacy in areas over which he can control access).” State v. Torres, 36 Conn. App. 488, 500, 651 A.2d 1327, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995).

After a thorough review of the record, we conclude that the court properly determined that the defendant cannot establish a reasonable expectation of privacy in this case because he did not have exclusive control over the hallway and could not control access to or exclude others from the hallway. First, the court found that 148 Dover Street was functionally a two-family house and that the hallway was a common hallway of egress and ingress for both apartments. See State v. Reddick, 207 Conn. 323, 334 n.5, 541 A.2d 1209 (1988) (diminution of expectation of privacy when common hallway in two-family house means of ingress and egress to both apartments). The court also found that the door leading into the common hallway was unlocked at the time the detectives entered and that this determination undermined the defendant’s assertion that he kept the door locked at all times. Cf. State v. Torres, supra, 36 Conn. App. 501 (fact that police needed key to enter common hallway insignificant in determining whether defendant had expectation of privacy). This fact indicates that the defendant had not maintained the location and the items within it in a private manner at the time of the detectives’ entry; see State v. Boyd, 57 Conn. App. 176, 185, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000); and is one of the factors considered in determining whether he manifested a subjective expectation of privacy in the common hallway. See id. In fact, the court found that the defendant failed to adduce any evidence that he had made efforts to establish an intention to maintain privacy in the common hallway. The landlord had access to the hallway, as did potential tenants of the vacant apartments and potential purchasers of the building itself, and there was no evidence that the defendant had the right to exclude anyone from the hallway. In short, the mutual use and control of the common hallway by the tenant and the property owner undermines the defendant’s asserted expectation of privacy. See State v. Torres, supra, 501.

The judgment is affirmed.

In this opinion the other judges concurred.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       On December 5, 10 and 20, 2007, the hearings were held.

       Wilson, with whom Martin was acquainted, was Jamaican as well.

       Number 148 Dover Street, the court found, was functionally a self-contained two-family apartment house with no access to any other residential units in the building.

       Although the defendant briefed his claim to this court as a violation of the privacy protections contained in article first, § 7, of the state constitution, the issue was not presented to the trial court under that authority. He also did not seek review of his state constitutional claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Therefore, we will not consider it here because, as we have often stated, we will not consider claims that were not made before the trial court and raised for the first time on appeal. McGuire v. McGuire, 102 Conn. App. 79, 87, 924 A.2d 886 (2007).

       We note that the defendant has made no claim that the stairway to the third floor apartment should be treated differently from the entire hallway.


author: LAVINE, J.

text:
    AMERICAN EXPRESS CENTURION BANK v. WILLIAM HEAD
    (AC 29926)
    Lavine, Beach and Stoughton, Js.
    Argued January 13
    officially released June 9, 2009

      William Head, pro se, the appellant (defendant).

      William L. Marohn, with whom, on the brief, was Joseph M. Tobin, for the appellee (plaintifi).
   Opinion

LAVINE, J.

The defendant, William Head, appeals from the judgment rendered by the trial court in favor of the plaintiff, American Express Centurion Bank, following the granting of the plaintiffs summary judgment motion. The defendant argues that the plaintiff failed to prove the absence of a genuine issue of material fact as to the amount the defendant allegedly owed to the plaintiff. We agree with the defendant and consequently reverse the judgment of the trial court.

The following facts and procedural history are relevant for our consideration of the defendant’s claim. The plaintiff served a two count complaint on the defendant. In the first count, the plaintiff alleged that it had entered into a credit card agreement with the defendant, that the payments on the account were delinquent and that the defendant owed the plaintiff $3824.97 plus interest and costs. The second count was based on unjust enrichment. The defendant filed an answer on December 4, 2006, denying all allegations and asserting special defenses. On December 27, 2006, the defendant filed a motion asking the court to order the plaintiff to produce written evidence to validate the defendant’s alleged indebtedness to the plaintiff, which the court, Radcliffe, denied.

On October 1, 2007, the plaintiff filed a motion for summary judgment. In support of its motion, the plaintiff filed a memorandum of law, affidavits from its authorized agent and attorney, credit card terms and conditions and account documents. The plaintiffs affidavits attested in relevant part that the interest in the present matter was $791.16, that the attached documents were accurate copies of the plaintiffs records and that there was no evidence that the defendant had disputed any of the charges shown on the account statements in a timely fashion.

The account documents provided by the plaintiff consisted of photocopies of some monthly account statements it mailed to the defendant and fifty-two receipts. The closing dates shown on the account statements start on January 27, 2002, and end on April 27, 2004. The balance indicated on the earliest submitted account statement, with the closing date of January 27, 2002, is $8040.38, and the statement does not include a list of specific transactions or charges. The latest account statement, dated April 27, 2004, shows a balance of $3824.97, which is the amount alleged in the plaintiffs complaint. The remaining account statements submitted by the plaintiff cover the periods between May 27 and December 28, 2002, and between January 28 and April 27, . 2004, and include itemized transactions.

In addition to the account statements, the plaintiff submitted fifty-two copies of receipts documenting the defendant’s transactions between February 6 and March 27, 2002. Of the fifty-two copies, twenty-three are devoid of information such as an account number, a date or an amount charged, or the service establishment and location and merely state: “The detailed information for the transaction described above could not be processed through our billing system. Please refer to your receipt provided at the time of purchase.” The remaining receipt copies bear the defendant’s account number, date and record of charge and the amount charged. The charges on the receipts that contain the amounts add up to a total of $860.77.

On February 14,2008, the defendant filed an objection to the plaintiffs motion for summary judgment, seeking “debt validation” and proof of a valid and enforceable contract, specific as to amounts owing and due. On April 7, 2008, the parties appeared before the court, Hiller, J. The court directed the defendant to read the relevant sections of the rules of practice and to submit appropriate documents in opposition to the plaintiffs motion for summary judgment.

On April 23, 2008, the defendant filed a motion for a nonsuit, to which he attached a notarized affidavit. The affidavit and the motion for a nonsuit contain the same information. The defendant asked for a dismissal of the case and stated that he believed that the claimed charges were not his and that even if they were his, the charges and the associated interest alleged by the plaintiff as due were far greater than any amount that the defendant believed he had actually incurred. The defendant repeated his allegation that the plaintiff had failed to provide a validation of debt as required under federal and state laws and asserted that without such validation, a genuine issue of material fact existed as to the amount he owed. The defendant further pointed out that the documents provided by the plaintiff contain a small number of monthly statements with annual interest rates in excess of 20 percent, that thirty-two of the fifty-two submitted receipts are blank and that the total charges on the receipts that show charges total $860.77.

On April 28, 2008, at the hearing on the plaintiffs motion, Judge Hiller stated that he intended to rule against the defendant because the defendant failed to file the appropriate papers required to oppose a motion for summary judgment. The court noted that the plaintiff submitted an affidavit, that the documents attached to the plaintiffs motion for summary judgment pertained to the defendant’s account and that they added up to the amount that the plaintiff said was owed by the defendant. The court further indicated that if the defendant had stated in an affidavit that he did not owe the alleged amount, there would have been an issue of fact and the court would have given the defendant a trial right away. When the defendant directed the court’s attention to the affidavit he had filed in support of his motion for a nonsuit, the court stated: “This is a motion for a nonsuit. It has nothing to do with a motion for summary judgment.” The court, however, proceeded to review the defendant’s affidavit and concluded that the affidavit merely asserted that the plaintiffs claims violated federal and state laws. The court further told the defendant that he should have disputed specific charges, to which the defendant replied that he could not do so because the plaintiff had not presented all the charges.

Also on April 28, 2008, the court ordered summary judgment in the plaintiffs favor in the amount of $4616.13, or the principal amount of $3824.97 plus interest in the amount of $791.16. In a memorandum of decision filed on July 23, 2008, the court stated that the plaintiff filed documentation sufficient to support its motion for summary judgment and that the defendant failed to file any opposing affidavit or evidence sufficient to demonstrate that an issue of material fact existed. The defendant filed the present appeal on May 16, 2008.

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; emphasis added; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

“Our review of the trial court’s decision to grant the . . . motion for summary judgment is plenary. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Little v. Yale University, 92 Conn. App. 232, 234, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).

We conclude that the court improperly concluded that the plaintiff satisfied its burden of proving the absence of any genuine issue of material fact as to the amount allegedly owed by the defendant. We therefore do not reach the issue of whether the defendant failed to raise a genuine issue of material fact in opposing the plaintiff’s motion. See Allstate Ins. Co. v. Barron, supra, 269 Conn. 405.

The plaintiffs complaint sounds in two counts, breach of contract and unjust enrichment. “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn. App. 719, 728, 916 A.2d 834 (2007). “Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

In the present case, the defendant disputed the amount of debt alleged in the plaintiffs complaint, namely, $3824.97, when he denied all of the plaintiffs allegations in his answer to the complaint. The amount of debt allegedly incurred by the defendant was therefore a disputed material issue. We disagree with the court’s finding that the documents attached to the plaintiffs motion for summary judgment “added up” to the amount the plaintiff claimed it was owed by the defendant. The earliest account statement submitted by the plaintiff, with a closing date of January 27, 2002, indicates that the defendant owed the plaintiff $8040.38. The plaintiff did not submit any evidence, such as a list of itemized transactions, showing that the plaintiff incurred charges in the amount of $8040.38 prior to January 27, 2002. The individualized receipts submitted by the plaintiff, twenty-three of which are essentially blank, also do not account for $8040.38 allegedly owed by the defendant as of January 27, 2002, because they are incomplete and they date from the period between February 6 through March 27,2002. The receipts and the copies of monthly statements submitted by the plaintiff account only for some periods of the defendant’s credit card billing history. In summary, we conclude that the plaintiff has failed to submit documentation supporting the total amount claimed to be due.

We conclude that because the defendant disputed in his pleadings the amount he allegedly owed to the plaintiff, the plaintiff had the burden to prove that there was no genuine issue as to the amount of debt alleged in its complaint. The plaintiff submitted the April, 2004 monthly statement, showing the amount it sought in its complaint, and various statements and receipts that provided the defendant’s incomplete credit card history. We conclude that in this case, submitting a monthly account statement that indicates the alleged amount of debt, and an affidavit stating that the defendant never disputed his monthly billing statements and that the submitted documents, some of which are essentially blank, are accurate copies of the plaintiffs records, does not satisfy that burden. We do not suggest that defendants who default on their credit card payments can defeat a summary judgment motion simply by denying that they have incurred those charges. We merely conclude that the plaintiff creditor needs to substantiate its claims with sufficient evidence at the summary judgment stage. Having failed to negate the existence of a genuine issue of material fact, the plaintiff did not meet its burden of establishing that as a matter of law, summary judgment should have been rendered in its favor. Accordingly, we reverse the judgment of the trial court.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The defendant, who is a pro se litigant, primarily argues on appeal, as he did before the trial court, that the plaintiff failed to “validate” the alleged debt by submitting original contracts and original receipts pursuant to various state and federal statutes. The defendant did not adequately brief his arguments regarding the statutory provisions, and we therefore decline to review them. The defendant, however, also argues that the court’s “decision to grant [the] plaintiff summary judgment was rendered with said insufficient evidence with respect to the alleged debts.” “Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. . . . [I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” (Internal quotation marks omitted.) Vanguard Engineering, Inc. v. Anderson, 83 Conn. App. 62, 65, 848 A.2d 545 (2004). Because the defendant essentially is addressing the sufficiency of proof at the summary judgment stage, we construe his argument on appeal accordingly.

       We are aware that a number of our trial courts, faced with an action to recover damages for the breach of a credit card agreement, have granted a motion for summary judgment in favor of a creditor plaintiff where the plaintiff submitted records demonstrating an amount due and an affidavit stating that the plaintiff sent monthly statements to the defendant, that the defendant did not dispute the amounts due and that, therefore, the defendant essentially acquiesced to all past monthly statements being true records of the amount of debt owed. See, e.g., Citibank v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV-05-4002020-S (December 21, 2005) (40 Conn. L. Rptr. 489); Citibank (South Dakota) N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV-05-4012384-S (November 30, 2005) (40 Conn. L. Rptr. 337). These cases rely on the “account stated” theory of recovery as articulated by our Supreme Court in General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 160 A. 296 (1932), and Dunnett v. Thornton, 73 Conn. 1, 46 A. 158 (1900), and seem to conclude that the plaintiff is entitled to summary judgment on the basis of evidence that the defendant received monthly statements and failed to dispute their content.
      We neither endorse nor disavow the approach taken by our trial courts because the plaintiff in the present case did not rely on the account stated theory in its complaint. See Citibank (South Dakota), N.A. v. Manger, 105 Conn. App. 764, 765, 939 A.2d 629 (2008) (plaintiff commenced lawsuit sounding in account stated). The court’s memorandum of decision does not mention the account stated theory although the plaintiff s affidavit in support of its summary judgment motion and the accompanying memorandum relied on it. Additionally, neither party raises the issue of account stated in its appellate brief. We therefore do not address the applicability of the account stated Iheory, as articulated by our Supreme Court in General Petroleum

        Products, Inc., and Dunnett, to actions to recover damages for breach of a credit card agreement.


author: BEACH, J.

text:
    HELEN M. LESEBERG v. KEVIN O’GRADY
    (AC 29484)
    Harper, Beach and West, Js.
    Submitted on briefs March 19
    officially released June 9, 2009

      Helen M. Leseberg, pro se, the appellant, filed a brief (plaintiff).

      Richard Blumenthal, attorney general, and Susan Quinn Cobb and Philip Miller, assistant attorneys general, filed a brief for the appellee (defendant).
   Opinion

BEACH, J.

Rather than appeal from the decrees of a court of probate, the plaintiff chose to pursue a cause of action against the Probate Court judge for civil damages. For more than 200 years, the doctrine of judicial immunity has required dismissal of such actions. This case is no exception. The plaintiff, Helen M. Leseberg, appeals from the judgment of the trial court rendered following the granting of the motion to dismiss filed by the defendant, Kevin O’Grady. On appeal, the plaintiff claims that the court, relying on the doctrines of judicial immunity and sovereign immunity, improperly dismissed her claims. We affirm the judgment of the trial court.

The following facts provide the necessary backdrop for the plaintiffs appeal. At all relevant times, the defendant was the judge of probate for the district of West-port. On July 15, 2004, the plaintiffs son, Steven Popovich, filed an ex parte application for temporary conservatorship of the plaintiff in the Probate Court. The defendant granted the application. On July 30,2004, the plaintiffs daughter, Diane Leseberg, filed an objection to Popovich’s application. On August 10, 2004, the defendant, as judge of probate, denied Diane Leseberg’s objection and also denied a motion to transfer filed by Diane Leseberg.

Also on August 10,2004, Popovich filed an application for the plaintiffs permanent conservatorship. On August 25,2004, the defendant held a hearing on Popovich’s application for permanent conservatorship. Present at the hearing were Popovich and his attorney, Diane Leseberg, the plaintiffs attorney and the property manager of the living facility where the plaintiff had resided since 2000. The plaintiff was not present at the hearing. Following the hearing, the defendant granted Popovich’s application.

The plaintiff did not appeal from any of the decrees of the Probate Court. Instead, the plaintiff filed the present action against the defendant on August 10,2007. The complaint alleged that the defendant violated the plaintiffs due process rights, intentionally inflicted emotional distress and committed negligence per se by improperly granting both the ex parte application and permanent application for conservatorship, and by denying Diane Leseberg’s motion to transfer. The defendant moved to dismiss the plaintiffs complaint on the ground that the plaintiffs claims were barred by the doctrines of judicial immunity and sovereign immunity. The court granted the defendant’s motion. This appeal followed.

The plaintiff argues that the court improperly granted the defendant’s motion to dismiss and that it “erred/ abused its discretion” by “failing to find that the defendant’s actions/omissions were in [excess]/outside of his statutory authority/jurisdiction . . . .” We disagree.

In reviewing the trial court’s decision to grant a motion to dismiss, we “take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). “[A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. ... If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken.” (Citation omitted.) Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007).

“It is a long-standing doctrine that a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge. The rationale is that a judge must be free to exercise his judicial duties without fear of reprisal, annoyance or incurring personal liability. . . . Absolute immunity, however, is strong medicine .... The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. . . .

“The officers to whom the absolute protection of judicial immunity extends is limited. This fact reflects an [awareness] of the salutary effects that the threat of liability can have ... as well as the undeniable tension between official immunities and the ideal of the rule of law .... The protection extends only to those who are intimately involved in the judicial process, including judges, prosecutors and judges’ law clerks. . . . Moreover, it is important to note that even judges do not enjoy absolute immunity for administrative as opposed to judicial actions. . . . The determination is made using a functional approach. . . . [IJmmunities are grounded in the nature of the function performed, not the identity of the actor who performed it.” (Citations omitted; emphasis added; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 630-32, 749 A.2d 630 (2000).

A judge is entitled to absolute judicial immunity unless “the judicial conduct is so far outside the normal scope of judicial functions that the judge was in effect not acting as a judge.” Shay v. Rossi, 253 Conn. 134, 170, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003), citing Stump v. Sparkman, 435 U.S. 349, 364, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). Judicial immunity “is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. . . . Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991).

In the present case, the defendant was acting in his judicial capacity when he ruled on the applications for temporary conservatorship and permanent conservatorship and the motion to transfer. The general subject area is prescribed by statutes governing the Probate Court. See General Statutes § 45a-650 (appointment of conservator); General Statutes § 45a-654 (appointment of temporary conservator); General Statutes § 45a-661 (transfer of records upon relocation of person under representation); see also Collins v. West Hartford Police Dept., 380 F. Sup. 2d 83, 90 (D. Conn. 2005) (“appointment of a conservator for [plaintiffs mother] properly viewed as a judicial act within the jurisdiction of the probate court”).

The plaintiff argues, however, that the defendant lacked jurisdiction to act because his challenged rulings failed to comply fully with statutory procedures. In particular, the plaintiff alleged that the defendant granted the ex parte application even though it did not contain a physician’s report as required by § 45a-654 (b). The plaintiff alleged that the defendant denied Diane Leseberg’s motion to transfer even though the plaintiff was not a resident of Westport, the defendant’s district, at the time the motion was filed, in violation of § 45a-661. The plaintiff also alleged that the defendant violated § 45a-650 when he granted the permanent application without the plaintiffs presence at the hearing.

These allegations, even if true, are not inconsistent with the defendant’s general authority to act on such matters. A judge does not act in the complete absence of authority, even if she acts erroneously, unless “the judicial conduct is so far outside the normal scope of judicial functions that the judge was in effect not acting as a judge.” (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301,326,828 A.2d 549 (2003), quoting Shay v. Rossi, supra, 253 Conn. 170. There is no basis in the law on which to conclude that the defendant was acting outside the scope of his judicial functions when, as here, he was ruling on applications for the appointment of a conservator and a motion to transfer. These actions are clearly within the scope of judicial functions of a judge of the Probate Court. See General Statutes §§ 45a-650, 45a-654 and 45a-661.

In Phelps v. Sill, 1 Day (Conn.) 315 (1804), the defendant, the Simsbury probate judge, was sued for damages because of his appointment of a guardian to oversee a $2000 estate of a nine year old boy. The guardian was reportedly “a man of no property, and a notorious bankrupt . . . .’’Id. Although the nature of the guardian’s character was “well known to the defendant, at the time of [the] appointment”; id.; the defendant “neglectfed] and refus[ed] to take security from the guardian, as by law [was] required . . . .” Id., 328-29. Subsequently, the guardian, “soon after the receipt of the [plaintiffs] property, squandered and spent the whole amount thereof, and absconded . . . .” Id., 315.

The court found that the defendant was entitled to judicial immunity for his appointment of the guardian. Id., 329. It explained: “By these charges the defendant is [not] otherwise implicated, than for error of judgment, in doing an act ... in the exercise of judicial power; and it is a settled principle, that for those a judge is not to be questioned in a civil suit. A regard to this maxim is essential to the administration of justice. If by any mistake in the exercise of his office, a judge should injure an individual, hard would be his condition, if he were to be responsible therefor in damages. The rules and principles, which govern in the exercise of judicial power, are not, in all cases, obvious; they are often complex, and appear under different aspects to different persons. No man would accept the office of judge, if his estate were to answer for every error in judgment, or if his time and property were to be wasted in litigations with every man, whom his decisions might offend. It is, therefore, a settled principle, that however erroneous his judgment may be, either by positive acts, neglect, or refusal to do certain acts, or however injurious to a suitor, a judge is never liable, in any civil action, for damages arising from his mistake.” Id. That principle remains intact.

The judgment is affirmed.

In this opinion the other judges concurred.

       Diane Leseberg sought to have the matter transferred from the probate district of Westport to the district of Fairfield, the location of the plaintiff’s living facility at that time.

       The plaintiff also filed an amended complaint on September 28, 2007, thirty-one days after the return day of the original complaint. General Statutes § 52-128 permits the filing of an amended complaint outside of the thirty days following the original return day at the discretion of the court, provided that the plaintiff pays costs. There is nothing in the record indicating that the plaintiff paid costs or that the court authorized the amendment. In its articulation of its decision regarding the defendant’s motion to dismiss, the court referenced the original complaint. Therefore, the plaintiff’s original complaint is the operative complaint in this matter.

       Frequently, a motion to dismiss contests the jurisdiction of the court. See Practice Book § 10-30; Filippi v. Sullivan, 273 Conn., 1, 8, 866 A.2d 599 (2005). The issue of whether a motion to dismiss on the ground of judicial immunity is jurisdictional was raised but not decided in Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005). We similarly do not need to decide the issue in the context of this case.

       In light of this disposition, we need not reach the issue of sovereign immunity.


author: BISHOP, J.

text:
    BRENDA SAWICKI v. NEW BRITAIN GENERAL HOSPITAL ET AL.
    (AC 29597)
    Bishop, Harper and Foti, Js.

      Argued March 18
    officially released June 9, 2009

      Oliver B. Dickins, for the appellant (plaintiff).

      Laura Pascóle Zaino, with whom, on the brief, were Richard C. Tynan, JuneM. Sullivan and Brian J. Gedicks, for the appellee (defendant Mandell & Blau, M.D.’s, P.C.).
   Opinion

BISHOP, J.

The plaintiff, Brenda Sawicki, appeals from the judgment of the trial court rendered following a jury verdict in favor of the defendant Mandell & Blau, M.D.’s, P.C/The plaintiff claims on appeal that the court improperly denied her motion to set aside the verdict and for a new trial on the basis of juror misconduct. In response, the defendant claims, as an alternate ground for affirmance, that if the court had precluded the testimony of the plaintiffs expert witness as requested, the plaintiff could not have met her burden of persuasion, entitling the defendant to a directed verdict. Because we agree with the plaintiffs claim that she was prejudiced by juror misconduct and disagree with the defendant’s claim regarding the plaintiffs expert witness, we reverse the judgment of the trial court.

The following factual and procedural history is relevant to the resolution of the plaintiffs appeal. The plaintiff commenced this medical malpractice action on August 9, 2002. In her complaint, the plaintiff alleged that on August 2, 2000, she went to the defendant for a routine mammogram. A radiologist employed by the defendant noticed new masses and recommended further evaluation with an ultrasound. On August 8, 2000, the plaintiff returned to the defendant for further examination with an ultrasound. Instead of performing the ultrasound, a different radiologist decided that another mammogram would suffice. On the basis of a determination that the August 8 mammogram film was inconclusive, the defendant’s radiologist recommended that the plaintiff return for an examination in the normal schedule. On June 4, 2001, the plaintiff returned to the defendant. A sonogram was performed that indicated two masses in the plaintiffs right breast. A mammogram performed on that same day demonstrated a mass in the plaintiffs right breast that was highly suggestive of malignancy. Two days later, on June 6,2001, the plaintiff underwent a biopsy that revealed that the masses in the plaintiffs right breast were carcinogenic. The plaintiff thereafter underwent a complete mastectomy and reconstruction of her right breast. Axillary nodes that were dissected during the mastectomy were positive for metastasis.

The plaintiff alleged in her complaint that the defendant breached the standard of care by not performing the recommended ultrasound on August 8, 2000. She further alleged that when the August 8, 2000 mammogram was as inconclusive as the August 2,2000 mammogram, the defendant breached the standard of care by not following up and, instead, recommending that she return in the normal schedule. The plaintiff alleged that as a result of the defendant’s negligence, the subsequent diagnosis of cancer in her right breast was too late because it had already metastasized. The plaintiff claimed that the delayed diagnosis deprived her of the chance of a full recovery and left her with a diminished life expectancy. The defendant claimed, by way of special defense, that the plaintiffs negligence was a substantial factor in causing her injuries. Specifically, the defendant alleged that the plaintiff negligently failed to return for follow-up examinations in December, 2000, and that following her mastectomy on July 10, 2001, she negligently refused to follow prescribed therapies and protocols for treatment.

Jury selection in this case commenced on June 7, 2006, and the presentation of evidence began on June 20, 2006. The jury deliberated and returned a verdict in favor of the defendant on July 19, 2006. Each juror affirmed the verdict in open court when individually polled. The plaintiff thereafter filed a motion to set aside the verdict and for a new trial, which was denied. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly denied her motion to set aside the verdict and for a new trial in which she claimed, inter alia, that she was deprived of a fair trial due to juror misconduct. We agree.

The following facts are relevant to our discussion of the plaintiffs claim. In support of her motion to set aside the verdict and for a new trial, the plaintiff submitted affidavits from two of the trial jurors, P and G. In their affidavits, which were essentially the same, P and G indicated that another juror, M, and other jurors had evaluated the evidence and stated their positions prior to the close of evidence and the court’s submission of the case to the jury for deliberation. They averred that M stated his position on the case before any evidence had been taken and that he engaged other jurors in discussions of the merits of the case as the evidence was introduced. Following receipt of the plaintiffs motion, the court held an evidentiary hearing during which it questioned all of the jurors, with the exception of one L, who had died a few days before the hearing.

The court first questioned G. G testified that at some point after the verdict, she and P had dinner at the plaintiffs house with the plaintiff and her attorney where they discussed M’s misconduct and where G agreed to sign an affidavit regarding what had occurred in the jury room. G also testified that M was very biased, particularly against women. She stated that “at one point, he said that—he said: ‘I even let them know I was biased against her and they still kept me on the case.’ ” She further indicated that she also recalled him stating, “we know which way this case is going already,” and, “she’s gonna lose,” and, “I can’t believe they’re keeping me on this case.” G stated, “I’m not saying he persuaded other jurors to go the wrong way or the right way because I don’t know what’s what, okay, but I know that as a person, that I just—I just feel in my heart that I have—I had to do what I’m doing. You know, that I believe things he did [were] wrong.”

P testified that he had been released from jury service a few days prior to deliberations due to a scheduled vacation and that when he returned from vacation and learned of the verdict, he called the plaintiff and told her that he “was sorry” and that “she shouldn’t have lost . . . .’’He indicated that he also “told her that I was going to call her on Friday when I was released because of all the talking that was going on in the back jury room while I was here up to that point. And, you know, from day two, when this other juror, [M] said that he wouldn’t vote for [the plaintiff]. I mean, it started from the beginning, so I knew she was not gonna win.” P stated that when he went to the plaintiffs house in late July or early August, where he met with the plaintiff, her attorney and G, they discussed “the people, the jury on the case and how I knew from the beginning that she would not have won because the first day when [M]—the second day when [M] came out and said he wouldn’t vote for her and then came back in the jury room back there and was laughing and saying that she can’t win now because I’m still here. And everyone was talking about how this was a waste of their time and [a] frivolous case. I mean, I knew from the beginning [that] she wasn’t going to win and I just had to keep it all to myself because you told me I couldn’t talk to anybody.”

P testified that following the testimony of one of the physicians, another juror, C, “came in and said that this case is over now because she saw all that she had to see.” In response to C’s comment, M “started to laugh and said this case has been over since the second day because when he came out here and said that he had an extreme bias toward the plaintiff and they kept him, and that was a bad mistake . . . because he would not vote for [the plaintiff] from the beginning.” P testified that C “said she saw all she had to see after the algorithm was shown, that big chart. She said, at that point, [that] the whole, you know, part of the plaintiffs case was that she should have known when to come back. And she was pretty much saying that . . . after we saw the algorithm the case was done; we saw all that we had to see and, you know, her mind at that point must have been made up, is what I got out of what she said.” P indicated that M and C commented that the testimony of the plaintiffs expert was wrong.

M testified next. He stated that when he returned to the jury room after the hearing regarding his note to the court, he told his fellow jurors what he had said in court, that he “found it inconsistent between, you know, her and the way she behaved after she found out about the, you know, the mammogram.” He indicated that there “was a lot of discussion going on in the jury room . . . . A lot of people were . . . angry about the case, and there was a lot of discussion going on. Most of the jury was talking.” He stated that when the mammographer from New Haven testified on behalf of the defendant, “[p]eople made a lot of comments that that had been a very strong case, very strong point made.” And “people expressed shock at the point that it was just so clear” that the plaintiff knew about the appointments. The court asked M if he “follow[ed] the court’s instructions regarding waiting to make up your mind before deciding the case?” M responded: “I—I kept looking for some sort of evidence, you know, to show that they, you know, that there was neglect. I was looking for it. I was waiting for it, and I never did see it. I—I didn’t make up my mind. I really wanted to see, is there anything on the other side, and I never did see it.” The court then asked, “Did you hear that from other jurors, that either they made up their mind . . . .” M responded: “No. I never heard that from anybody. People—I think people wanted, you know, some solid information that there was neglect, and we just never saw it.” M indicated that during the trial, he heard comments from his fellow jurors, specifically C, that if the plaintiff had followed the advice of her physicians, she probably would have gotten better. M stated that he probably did express his opinion to the other jurors. He indicated that the most common comment that he heard was, “They just don’t have a case.” He stated: “I heard people say I haven’t seen anything yet, I don’t—you know, there’s no evidence, things like that, they just don’t have a case. ... I think people were looking—I think a lot of people were probably like me, they were looking for some evidence, you know. I know I was looking for evidence. I mean, I hadn’t—you know, I waited and waited for something to come along, and I never did see it.” The court asked M whether, following the June 21, 2006 hearing at which the court addressed his note when he returned to the jury room, he had a bias. M responded, “I wiped my mind clean, and I was waiting for more information.”

C testified that she did not discuss the case with any of her fellow jurors. She indicated that although she heard other jurors make comments about the case, she did not recall anything beyond cursory comments. C did recall that M was “extremely frustrated that [the plaintiff] refused all treatments that were offered to her.” She recalled that early on in the trial, M had said “something to [the] effect that he felt his mind was already made up.” She testified that he said that once or twice in the beginning of the trial. When the court asked C if she had followed its instruction to wait for all of the evidence and the court’s charge before making up her mind, C responded affirmatively.

Another juror, K, testified next. She indicated that there was “a lot of general talk” and that most of the jurors commented on the credibility of the witnesses. She stated that the jurors compared the witnesses from California to the local witnesses. She recalled the foreperson, R, making a lot of general comments and P making a comment about not liking one of the parties. She also recalled C commenting on the size of the tumor and the different time frames. K testified that she did not specifically recall any comments suggesting that any of the jurors had made up their minds but that “[t]here could have been comments made like that.” K also told the court, in response to the court’s inquiry, that she followed its instruction to wait for all of the evidence and the court’s charge before making up her mind.

S testified that she recalled jurors discussing the length of the trial and the financial problems that the length of the trial was causing them. She stated that “nobody spoke about the case.” She stated that “[M] had a bias toward the plaintiff because of filing the suit, and he felt that there was no case to be decided. And I think part of the reason was because of his financial situation and that it was a waste of time.” S indicated that M expressed that opinion on a few occasions and that he would share his frustration with the other jurors “even day to day.” S recalled M saying, beginning in the first days of trial, that he was against the plaintiff. She also recalled C having “some opinions about the case in the beginning,” to the effect that she did not like the plaintiff or the way the plaintiff was going about the case. S testified that L stated that the case was a waste of his time and that he did not like the plaintiff for that reason, “almost as if placing blame. ... He just said that he had a bias toward the plaintiff for that reason.” She stated that the jurors shared their personal experiences with chemotherapy, but those discussions were not related to the case. S stated that both M and L expressed, before the case was submitted to them, that they would vote against the plaintiff. The court asked S if she had followed its instruction to wait for all of the evidence and the court’s charge before making up her mind. S responded that she had followed the court’s instructions and did not make up her mind before deliberating.

The foreperson, R, testified that he did not hear M express any opinions prior to deliberations. He recalled M being called out and then, upon returning, M stating, “They’re not gonna let me go.” R did not recall anyone expressing that either party was going to win or lose. He stated: “I can honestly say I don’t believe anybody made up their mind before you gave us the okay, okay, now you’ve had everything, now go deliberate or discuss it. That’s when we started discussing it.”

Alternate juror B testified that he did not hear discussions or comments of his fellow jurors regarding the case. He indicated that he followed the court’s instructions to wait until he heard all of the evidence and the charge before making up his mind.

Alternate juror T testified that she did not hear any discussions or comments of her fellow jurors other than a few regarding the length of the trial and whether certain witnesses were hired to testify in certain cases. She did not recall hearing anybody express their opinions as to who should win or lose the case.

Following the hearing, the court issued a memorandum of decision denying the plaintiffs motion to set aside the verdict and for a new trial. The court found that some jurors engaged in misconduct because some “expressed opinions about evidence, and some about witnesses.” The court found, however, that the plaintiff failed to sustain her burden of proving that the misconduct resulted in probable prejudice. This appeal followed.

“Our review of the trial court’s action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness . . . since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence.” (Citations omitted.) Palomba v. Gray, 208 Conn. 21, 24-25, 543 A.2d 1331 (1988).

It is well settled that presubmission discussion of the evidence by jurors in any degree is not an acceptable practice and constitutes misconduct. See State v. Washington, 182 Conn. 419, 426, 438 A.2d 1144 (1980). It is equally well established, however, that not every incident of juror misconduct requires a new trial. State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). The court found that there was juror misconduct in this case, and that finding has not been challenged on appeal. Thus, the issue we confront is whether the court properly determined that the plaintiff was not prejudiced by the misconduct.

“[T]he burden is on the moving party in a civil proceeding to establish that juror misconduct denied him a fair trial. . . . That burden requires the moving party to demonstrate that the juror misconduct complained of resulted in probable prejudice to the moving party. ... In sum, the test is whether the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror.” (Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 104, 956 A.2d 1145 (2008).

“In reviewing juror misconduct, we use an objective standard in which the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors.” (Internal quotation marks omitted.) Harrison v. Hamzi, 77 Conn. App. 510, 523, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003). “The question is whether the misconduct is of such a nature that it probably rendered the juror unfair or partial. In determining the nature and quality of the misconduct we must be mindful that the concerns [are] not simply that the jurors may have discussed the evidence presubmission, but that they may have taken positions on the evidence. . . . Any inquiry into the content of the opinion or the impact it had on the juror is clearly impermissible.” (Internal quotation marks omitted.) State v. Castonguay, 194 Conn. 416, 437, 481 A.2d 56 (1984).

“[T]he rule that prohibits the examination of the jurors’ mental process excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict. [C.] McCormick, Evidence (2d Ed.) § 68, p. 148.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, supra, 289 Conn. 106; see also Practice Book § 16-34 (“[u]pon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined”).

“[Testimony] or affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner. . . . And . . . [e]vidence of the actual effect of the extraneous matter upon jurors’ minds can and should be excluded, as such evidence implicates their mental processes, but receiving their evidence as to the existence of the condition or the happening of the event . . . supplies evidence which can be put to the test of other testimony (and thus sound policy is satisfied) and at the same time the evidence can serve to avert ... a grave miscarriage of justice, which it is certainly the first duty of a court of conscience to prevent if at all possible.” (Citation omitted; internal quotation marks omitted.) Aillon v. State, 168 Conn. 541, 551, 363 A.2d 49 (1975).

Examples of testimony that cannot be considered include “any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.” (Internal quotation marks omitted.) Josephson v. Meyers, 180 Conn. 302, 310-11, 429A.2d 877 (1980). “[J]urors [are] competent to testify to the occurrence of incidents during trial or during their deliberations which might have affected the result of the trial, but [cannot] testify as to the impact of such incidents on their verdict.” Hamill v. Neikind, 171 Conn. 357, 361, 370 A.2d 959 (1976). The court “must apply an objective test, assessing for itself, whether or not, there is a likelihood that that influence would affect a jury outcome.” (Emphasis added.) Aillon v. State, supra, 168 Conn. 549.

“Thus, a trial court may inquire about whether members of the jury observed the situation, whether they discussed it during deliberations, and whether they, as individuals, arrived at a fixed opinion as to the situation such that they were unable to deliberate with open and impartial minds. . . . Beyond that, however ... a court may not tread. A court may not inquire as to [e]vidence of the actual effect of the extraneous matter upon jurors’ minds because such evidence implicates their mental processes .... We conclude that, once a verdict has been reached, the proper inquiry does not involve a determination of what conclusions the jurors actually drew but, rather, of whether the jurors were aware of or actually exposed to the courtroom situation, whether it affected their ability to be impartial and whether it was of such a nature that it probably rendered the juror [s] unfair or partial.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Johnson, 288 Conn. 236, 262-63, 951 A.2d 1257 (2008).

Here, the court did not follow the analytical path set forth by this decisional law. Rather than focus on the nature and quality of the jury misconduct, the court fastened its decision on responses by the jurors that they followed the court’s jury instructions notwithstanding their predeliberation discussions of the evidence and expressions of opinion regarding the plaintiffs case. Specifically, the court found that the jurors followed the court’s instructions not to decide the issues before hearing all of the evidence. The court focused on the testimony of the jurors and the assertions they made during the hearing as to the actual impact the misconduct had on them. Additionally, the court found that any statements made by M stating his opinion, or that his mind was made up, were made before he sent the note to the court indicating his bias and before he assured the court that he would keep an open mind. On the basis of M’s testimony at the hearing, the court concluded that M had “kept his mind open.” The court specifically credited M’s statement: “I kept looking for some sort of evidence ... to show that . . . there was neglect, I was looking for it. I was waiting for it, and I never did see it, I—I didn’t make up my mind, I really wanted to see, is there anything on the other side, and I never did see it.” In its memorandum of decision, the court did not discuss testimony that C and L had expressed opinions about the case prior to deliberations. On the basis of the jurors’ claims at the hearing regarding their adherence to the court’s instructions and without consideration of the likely impact of the jurors’ admitted misconduct on the fairness of the trial in light of the nature and quality of juror misconduct, the court concluded that the plaintiff had not met her burden of proving she was prejudiced by the misconduct.

In light of the evidence of the serious nature and quality of undisputed jury misconduct in this instance, the court’s reliance on statements by the jurors that they kept their minds open despite the ongoing presubmission discussions was misplaced. The court’s evaluation of the subjective assessment by jurors that they followed the court’s instructions and, by implication were not swayed by the improper presubmission discussions, ignored the likely influence of the misconduct. In other words, the court employed an incorrect legal analysis in determining whether the plaintiff was prejudiced by focusing its attention on the mental processes of the jurors and drawing conclusions from their testimony as to the actual effect of the misconduct, and not the probable effect of their misconduct as objectively judged by its nature and quality.

In support of its position that the court properly determined that the plaintiff was not prejudiced by juror misconduct, the defendant relies on State v. Newsome, 238 Conn. 588, 682 A.2d 972 (1996). Although our Supreme Court has held that statements of jurors regarding biases ought not be disregarded as “inevitably suspect”; id., 631; Newsome is legally and factually distinguishable from the case at hand. In Newsome, certain jurors improperly discussed the credibility of one of the state’s witnesses prior to deliberations. The trial court found that although the jurors had discussed the fact that a witness had told two different stories about the crime, they did not express any opinion as to which account, if either, was truthful or whether the defendant was guilty. Thus, the court concluded that “although improper, the remarks were limited in scope and did not result in any juror committing himself or herself to a position on the evidence, the primary danger associated with jurors’ presubmission discussion of the evidence or issues in the case.” Id. Additionally, the jurors’ conversations about the credibility of a witness did not relate to a contested issue, as both the state and the defense had made it clear that the witness had changed his story. The Supreme Court therefore concluded that because the “comments relating to [the witness’] credibility were limited to recognition of the view, stressed by counsel for both the state and the defendant, that [the witness] had told two different stories about the crime; were few in number; were made or heard only by a small minority of the jurors and alternates; and, further, that there was no indication that the challenged comments either influenced the jurors’ deliberations or prejudiced them against the defendant”; id., 632; the trial court properly concluded that the defendant was not prejudiced by the misconduct.

In contrast to the present case, in Newsome, although the jurors discussed the fact that the witness changed his stoiy regarding the crime, they did not opine as to the truth of the witness’ stories. And, as noted, the lack of credibility of the witness in Newsome was uncontested. Here, on the other hand, the presubmission discussions and expressions of opinions by jurors related to core, contested issues in the case. There was ample evidence before the court that certain jurors formed and expressed opinions regarding the merits of the plaintiffs case. These comments were numerous and, unlike in Newsome, were not limited in scope to just one issue or one witness. Unlike the case at hand, the presubmission comments in Newsome were made or heard only by a small minority of the jurors. Here, several of the jurors testified that most of the jurors had made comments throughout the trial or engaged in the presubmission discussions.

Additionally, the court relied exclusively on the jurors’ assurances that they remained unbiased and did not make up their minds until they had heard all of the evidence. In reaching its conclusion regarding prejudice, the court did not assess testimony that the jurors’ discussions were ongoing throughout the entirety of the trial and that more than one juror openly expressed a position on the plaintiffs case prior to submission of the case to the jury. Our Supreme Court has explained the danger involved when a juror expresses an opinion on the evidence, stating that “the human mind is constituted so that what one himself publicly declares touching any controversy is much more potent in biasing his judgment and confirming his predilections than similar declarations which he may hear uttered by other persons. When most men commit themselves publicly to any fact, theory, or judgment they are too apt to stand by their own public declarations, in defiance of evidence. This pride of opinion and of consistency belongs to human nature." (Internal quotation marks omitted.) State v. Washington, supra, 182 Conn. 426.

Finally, although the Supreme Court in Newsome opined that it was not improper for the trial court to have permitted testimony from the jurors regarding the impact of their presubmission discussions regarding the credibility of a witness, the trial court in Newsome, unlike the court in the present case, denied the defendant’s motion to open on the basis of its findings regarding the nature and quality of jury misconduct. Thus, although Newsome includes the proposition that a court need not ignore what jurors may say about the effect of improper conduct on them, it does not change the fundamental requirement that the court make its ultimate determination on the basis of its own assessment of the likely effect of juror misconduct based on its nature and quality.

In sum, Newsome is distinguishable from the present case because the trial court in Newsome followed the proper analytical path in focusing on the nature and quality of the misconduct and the probable effect it had on the jurors, whereas the court in this case relied solely on the jurors’ claims regarding the actual effect the ongoing predeliberation discussions had on them in determining that the plaintiff was not prejudiced by the misconduct. In light of the extraordinary circumstances of this case, in which more than one juror openly expressed his or her opinion regarding the plaintiffs case and most of the jurors commented on the credibility or reliability of the witnesses prior to submission of the case to them, the court abused its discretion by concluding that it was not probable that the misconduct prejudiced the plaintiffs case.

II

The defendant claims, as an alternate ground for affirmance, that the court improperly failed to preclude the testimony of the plaintiffs expert witness, Gerald Sokol, a physician, pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). Specifically, the defendant claims that Sokol’s opinion was not supported by any scientifically reliable methodology. We disagree.

Prior to trial, the defendant filed a motion to preclude Sokol’s testimony on the ground that his opinions were not properly founded in or based on any reliable medical, scientific or other specialized knowledge, or any recognized scientific methodology. The court held a Porter hearing at which Sokol testified that as a result of the defendant’s failure to diagnose the plaintiffs cancer in August, 2000, her chance of recovery was diminished. Sokol testified that the most significant factor in determining survivability is the number of cancer positive lymph nodes or the volume of the tumor. He opined that if the plaintiffs cancer had been found in August, 2000, instead of June, 2001, the plaintiff would have had far fewer positive nodes and a greater than 50 percent chance of survival. Sokol based his opinion on the number of positive lymph nodes found in July, 2001, the rate of growth of the plaintiffs tumor and the fact that the number of positive nodes has a linear relation with the volume of cancerous tumors. In support of his opinion, Sokol cited several medical journal articles that he provided to the court.

The court denied the defendant’s motion to preclude. In doing so, the court indicated that it considered Sokol’s testimony, the written materials that he provided to the court and the affidavit of the defendant’s expert witness. The court found that Sokol’s opinions were reliable and were “based on scientific knowledge rooted in methods and procedures of science [including] articles in peer reviewed literature pertinent to his opinions.” The court further found that there is “a general acceptance of the tumor mode metastasis staging, that is, tumor, size, node involvement and prognostication of the outcome. . . . [T]he relation between tumor size, lymph node status and outcome has been qualitatively known for many years. Numerous studies have shown the value of using tumor size and nodal status to estimate prognosis in breast cancer. . . . [The articles relied on by Sokol] also pertain to a relationship between tumor size, be it primary or multifocal or centric, and the number or percentage of nodes involved . . . indicating a linear relationship between [the] diameter of [the] primary tumor and [the] percent [of] positive lymph nodes.” In further support of its conclusion that Sokol’s opinion was based on appropriate methodology, the court referred to a statement contained in the affidavit of the defendant’s expert witness in which he, too, relied on peer reviewed literature in opining as to the plaintiffs chance of survival if she had commenced the recommended treatment in June, 2001. The court further found that Sokol’s testimony was relevant because it related to the plaintiff and the facts of her case and her disease. The court stated that it based its conclusions on the principles and methodology underlying Sokol’s opinions, not the substance of his conclusions, because the jury is entitled to give those conclusions whatever weight it deems appropriate.

“It is well established that [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Concerning expert testimony specifically, the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Citation omitted; internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 342, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007). “Because a trial court’s ruling under Porter involves the admissibility of evidence, we review that ruling on appeal for an abuse of discretion.” (Internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 214, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).

In Porter, our Supreme Court adopted the test for determining the admissibility of scientific evidence. “First . . . the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods and procedures of science . . . and is more than subjective belief or unsupported speculation. . . . This requirement establishes a standard of evidentiary reliability ... as, [i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity. . . . Second . . . the scientific evidence must fit the case in which it is presented. ... In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract.” (Internal quotation marks omitted.) State v. John, 282 Conn. 260, 270-71, 919 A.2d 452 (2007).

Here, the court properly engaged in the inquiry mandated by Porter and admitted Sokol’s testimony. On the basis of our thorough review of the record, we cannot conclude that the court abused its discretion when it denied the defendant’s motion to preclude.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       New Britain General Hospital was also a defendant, but the complaint against it was withdrawn prior to trial. We therefore refer to Mandell & Blau, M.D.’s, P.C., as the defendant.

       The plaintiff also claims on appeal that the court improperly denied her request to submit rebuttal testimony from one of her expert witnesses. Because we reverse the judgment on the basis of juror misconduct, we need not reach that issue.

       In the interest of preserving the privacy of the jurors who served on this case, we refer to them by initials.

       Early in the trial, on June 21, 2006, M sent a note to the court that stated, “Judge, I need to speak with you about a bias I have in this case.” Upon receipt of the note, the court held a hearing at which M explained, “Well, I’m becoming—I’m wondering, it seems to me as though, this plaintiff is, you know, seems to be in control of business, family and everything, but when it comes to her own health, the whole thing, just let it fall by the wayside, just let it be in the hands of other people. And that doesn’t seem consistent to me. That—she’s in control of a huge business, family, all these responsibilities, but when it comes to a decision to get—to get a second opinion on a sonogram, that didn’t happen.”
      M denied having discussed his opinion with other jurors and acknowledged hearing the court’s instruction that he was not to make up his mind about the case until all evidence was submitted and the court had instructed the jury regarding the law. The court reminded M not to make up his mind until he heard all of the evidence and sent him back to the jury room.

       Although it is not apparent from M’s testimony specifically what “appointments” he was referring to, the import of his testimony is that jurors were expressing opinions about the evidence as it was being submitted and before deliberations, contrary to the court’s instructions.

       The court discredited the testimony of G and P due to the “circumstances under which their affidavits were procured and scripted.”

       In concluding that the plaintiff was not prejudiced by the juror misconduct, the court also relied on its finding that this was a “conscientious” jury in that it deliberated for a few hours and asked a few questions after the case was submitted to it for deliberations. Not only is this an impermissible subjective view of the mental processes of this jury, but this court has noted that “[t]he length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict. In fact, the length of time of the jury’s deliberations is a double-edged sword. A short deliberation, rather than being indicative of a lack of diligence, may in fact attest to the strength of the [prevailing party’s] case.” State v. Hernandez, 28 Conn. App. 126, 136, 612 A.2d 88, cert. denied, 223 Conn. 920, 614 A.2d 828 (1992).

       It is noteworthy that this language in Newsome comes from State v. Rodriguez, 210 Conn. 315, 330, 554 A.2d 1080 (1989), which did not involve presubmission deliberations and, in fact, is a case in which all of the jurors testified that no misconduct had occurred.

       As our Supreme Court stated in Porter, “[a]s long as the expert’s methodology is well founded, the nature of the expert’s conclusion is generally irrelevant, even if it is controversial or unique. ... [In other words] [o]nce the methodology underlying an expert conclusion has been sufficiently established, the mere fact that controversy, or even substantial controversy, surrounds that conclusion goes only to the weight, and not to the admissibility, of such testimony.” (Citation omitted; internal quotation marks omitted.) State v. Porter, supra, 241 Conn. 83.