author: MCDONALD, C. J.

text:
    STATE OF CONNECTICUT v. MICHAEL W. MORDOWANEC
    (SC 16251)
    McDonald, C. J., and Borden, Katz, Palmer and Sullivan, Js.

      Argued April 20, 2000
    officially released January 22, 2002

      Ira B. Grudberg, with whom was Minor C. Sterling, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, Francis J. McQuade, supervisory assistant state’s attorney, and John Kerwin, assistant state’s attorney, for the appellee (state).

       Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion was officially released, his continued participation on this panel is authorized by General Statutes § 51-198 (c). The listing of justices reflects their seniority status on this court as of the date of oral argument.

   Opinion

MCDONALD, C. J.

The defendant, Michael W. Mordowanec, appeals from his conviction, rendered after a conditional plea of nolo contendere, of the crimes of cultivation of marijuana in violation of General Statutes § 21a-277 (b), possession of four ounces or more of marijuana in violation of General Statutes § 21a-279 (b), and possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c). On appeal, the defendant claims that the trial court improperly: (1) determined that a warrantless thermal imaging scan of the defendant’s commercial premises did not constitute a search under the federal and state constitutions; (2) concluded that the defendant had failed to establish that false information was included intentionally or recklessly in the application for a war-ant to search those premises, in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); and (3) determined that there were sufficient facts in the affidavit accompanying the search warrant application to establish probable cause. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s claims on appeal. On February 9, 1996, a judge of the Superior Court issued a warrant to search the business premises of L & M Home Improvement (L & M) at 151 Main Street in Seymour. Seymour police officers executed that warrant and discovered on L & M’s second floor nineteen marijuana plants, lights used to grow the plants and other items relating to indoor marijuana cultivation and sales. As a result, the defendant and his brother, Daniel Mordowanec, the operators of L & M, were arrested and charged.

Prior to trial, the defendant moved to suppress all evidence seized pursuant to the search warrant, arguing that the warrant was obtained in violation of his rights under the fourth and fourteenth amendments to the United States constitution, and article first, §§ 7 and 8, of the Connecticut constitution. 6In the trial court, the defendant argued that the evidence seized in the execution of the warrant should be suppressed because the affidavit in support of the warrant did not present sufficient evidence for a finding of probable cause. The defendant’s motion to suppress included a request for a hearing pursuant to Franks v. Delaware, supra, 438 U.S. 154. In its memorandum of decision, the trial court noted that although it “felt that the [defendant] initially failed to sufficiently demonstrate that the affiants acted with ‘deliberate falsehood or reckless disregard for the truth,’ the court nevertheless gave the [defendant] the benefit of the doubt and allowed preliminary testimony in a Franks-type hearing.”

In its memorandum of decision, the trial court found the following facts: “The application for the warrant was supported by the affidavit of Det./Sgt. James Hayes of the Seymour police department and Special Agent David Hoyt of the [United States] Drug Enforcement Administration. The application and affidavit contained several basic allegations. First, Officer Hayes received an anonymous [telephone call from an unknown male caller who stated that he observed approximately twenty to twenty-five six-foot tall marijuana plants growing inside a room under tubular, purplish lights on the second floor of the building housing [L & M]. The caller stated that he made the observation through a slightly opened door from the rear fire escape of the building while taking a cigarette break from a karate class, which is located on the third floor of the building, in which his child was enrolled. The caller also indicated that he detected a strong odor of marijuana, claiming that he ‘knows marijuana citing the fact that he is a “Vietnam vet.’ ” Affidavit and Application for Search and Seizure Warrant, ¶ 3. The caller described two males located on the second floor who he believed to be ‘the guys from L & M,’ one heavy-set and balding and the other with glasses and his hair tied back in a ponytail. Id. He also stated that he did not think the males saw him and that ‘you better move quick or [you’re] gonna lose it.’ Id.

“The second affiant, Special Agent Hoyt, attested to his knowledge from ‘training and experience that individuals who grow marijuana indoors commonly utilize 1,000 watt metal halide or high pressure sodium lights to’ grow marijuana, and that the lights appear ‘bluish in color.’ Affidavit and Application for Search and Seizure Warrant, ¶4.

“In paragraph 5, Officer Hayes indicated that from his personal knowledge the descriptions of the two males fit Daniel [Mordowanec] and [the defendant]. He further verified by a visit to the third floor of 151/153 Main Street that there was an enclosed fire escape stairway in the rear of the building. See Affidavit and Application for Search and Seizure Warrant, ¶ 6. In addition, assessor’s records were obtained which showed that the building was owned by the [defendant’s] mother.

“The second allegation relied upon in the application for the search warrant was a claimed increase in the electrical power usage at the property. On February 7, 1996, an administrative subpoena was obtained and executed at Northeast Utilities for records of kilowatt electrical usage covering two years of service for 151 Main Street. The records revealed ‘a clear kilowatt hour usage increase [of 474 kilowatt hours] ... for the period covering December 1995 to January of 1996 as compared to the previous one month period, and more significantly, when compared to the same one month period one year ago.’ Affidavit and Application for Search and Seizure Warrant, ¶8.

“The final allegations relied upon in the application were the results of an external inspection of the heat emanating from the building at 151/153 Main Street through employment of a thermal imaging device. On February 9, 1996, at approximately 12:30 a.m., two Seymour police detectives and a Connecticut state police trooper fixed an ‘Agema’ Model 210 thermal imaging device on the building. Affidavit and Application for Search and Seizure Warrant, ¶9, 10. The device measured ‘a significantly higher surface temperature on the second floor than that of the first and third floors and adjacent buildings. ’ Affidavit and Application for Search and Seizure Warrant, ¶ 10. The affiant concluded that ‘[t]his is consistent with the heat that would be generated by the high power artificial lighting systems commonly used in the indoor cultivation of marijuana.’ Id. Furthermore, upon inspection of the town of Seymour building permits and assessor’s field card, it was evident that ‘only one oil fired hot water furnace [was] being used to heat said structure and . . . this furnace is located in the basement of the building and would not explain a high amount of heat emanating from the second floor.’ Affidavit and Application for Search and Seizure Warrant, ¶11.”

The trial court then rejected each of the defendant’s arguments in support of his motion to suppress. The court stated that “[aflthough the [defendant] demonstrated that the evidence of electrical kilowatt usage obtained by the affiants applied to the wrong floor of the building at 151/153 Main Street, the [defendant has] failed to establish that the affiants engaged in a deliberate falsehood or reckless disregard for the truth; rather, the evidence indicates that in their effort to determine the electrical kilowatt usage of the second floor of the building, the affiants were merely innocently mistaken in their belief that the bill for 151 Main Street included the second floor.” The court also concluded that the thermal imaging scan did not constitute a search within the meaning of the federal or state constitutions. The trial court concluded that the affidavit presented sufficient objective indicia of reliability to justify a finding of probable cause and the issuance of a search warrant.

After entering his conditional plea of nolo contendere, the defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). On appeal, the defendant claims that the trial court improperly: (1) determined that a warrantless thermal imaging scan of the defendant’s commercial premises did not constitute a search under the federal and state constitutions; (2) concluded that the defendant had failed to establish that the affiants intentionally or recklessly included false information in the affidavit; and (3) concluded that the affidavit presented sufficient facts for a finding of probable cause. We affirm the judgment of conviction.

I

The defendant claims that the trial court incorrectly determined that the warrantless thermal imaging scan of his commercial premises did not constitute a search in violation of his rights under the federal and state constitutions. The state counters that the trial court properly concluded that a thermal imaging scan is not a search and that, even if the trial court was incorrect, there were sufficient other facts in the affidavit to establish probable cause. We agree with the state that there were sufficient other facts in the affidavit to establish probable cause and do not reach the issue of whether the warrantless thermal imaging scan of the defendant’s commercial premises constituted a search.

The United States Supreme Court has decided that such a scan of a home is a search requiring a search warrant. In Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 2046, 150 L. Ed. 2d 94 (2001), the court held that where a thermal imaging device reveals details of a “private home” that would have been unknowable without a physical intrusion, the surveillance is a fourth amendment search and is presumptively unreasonable without a search warrant.

In Kyllo, the court noted that “in assessing when a search is not a search” under the fourth amendment, it had “applied somewhat in reverse the principle” of Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Kyllo v. United States, supra, 121 S. Ct. 2042. It summarized the Katz principle as “whether the individual has an expectation of privacy that society is prepared to recognize as reasonable . . . .” Id., 2043. The court noted that “[i]n the home ... all details are intimate details because the entire area is held safe from prying government eyes”; id., 2045; and it emphasized that a minimal expectation of privacy exists in a home that is acknowledged to be reasonable. Id., 2043.

The court held in Kyllo that “[w]hile it may be difficult to refine Ka,tz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes—the prototypical and hence most commonly litigated area of protected privacy—there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area . . . constitutes a search—at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id. The court then remanded the case to the District Court to determine whether, without the evidence resulting from the scan, there was probable cause to support issuance of the search warrant under which evidence was seized from the petitioner’s home. Id., 2046.

The Kyllo decision did not address the question of whether a search warrant would be required to conduct a thermal imaging scan of premises other than a home, such as a commercial property. The court emphasized, however, the heightened expectation of privacy in one’s home and distinguished that heightened expectation from the lesser expectation of privacy in a commercial property. Id., 2045 (“an industrial complex . . . does not share the Fourth Amendment sanctity of the home”); cf. Dow Chemical Co. v. United States, 476 U.S. 229, 237-38, 106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986) (“the Government has greater latitude to conduct warrantless inspections of commercial property because the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home” [internal quotation marks omitted]). We need not decide that issue because we conclude, as we discuss in part III of this opinion, that even without the results of the thermal imaging scan there were other sufficient facts in the affidavit to establish probable cause.

II

The defendant claims that the trial court incorrectly determined that the affiants did not include false information in the affidavit intentionally or with reckless disregard for the truth.

The following additional facts are relevant to the resolution of this claim. In his motion to suppress, the defendant claimed that Hayes intentionally or recklessly had: (1) represented that there was an increase in electricity usage for the building, when the electricity records showing an increase did not include the usage for the second floor; (2) omitted from the affidavit the karate school’s class schedule, which indicated that there were no morning classes for children and contradicted the anonymous caller’s story;* ** and (3) failed to attempt to verify whether one could peer into the second floor of the building from the rear fire escape, which, the defendant claimed, would have contradicted the anonymous caller’s report.

At the Franks hearing, Hayes testified that, pursuant to an administrative subpoena, he had obtained electricity records for service at 151 and 153 Main Street. The subpoenaed records did not specify which floors were covered under each address. Hayes stated that he knew from his personal experience that L & M used 151 Main Street as its address and occupied the first and second floors of the building. He also knew that the American Hapkido martial arts school was on the third floor and that its address was 153 Main Street. Hayes testified that he believed that the electricity usage for the second floor was reflected in the record for 151 Main Street, and he therefore included that information in the warrant affidavit. The state stipulated at the hearing, however, that the electricity record for 151 Main Street covered only the first floor of the building, not the second floor as represented in the affidavit.

At the hearing, Charles Ehrentraut, the head teacher from the karate school on the third floor of the building, testified that, at the time of the anonymous caller’s alleged sighting of the marijuana plants, the school provided only adult classes in the mornings. The defendant also attempted to present testimony from an investigator that, as one walks down the fire escape from the third floor of the building to the second floor, it is impossible to see into the second floor of the building, even if the door to the fire escape is open. The trial court did not admit this testimony at the Franks hearing.

In its memorandum of decision, the trial court stated that “the [defendant has] not established by a preponderance of the evidence [his] allegations of perjury or reckless disregard by the affiants. Although the [defendant] demonstrated that the evidence of electrical kilowatt usage obtained by the affiants applied to the wrong floor of the building at 151/153 Main Street, the [defendant has] failed to establish that the affiants engaged in a deliberate falsehood or reckless disregard for the truth; rather, the evidence indicates that in their effort to determine the electrical kilowatt usage of the second floor of the building, the affiants were merely innocently mistaken in their belief that the bill for 151 Main Street included the second floor.”

On appeal, the defendant claims that the trial court improperly concluded that Hayes did not act with intentional or reckless disregard for the truth when he included false information in the affidavit. The state counters that the trial court correctly concluded that Hayes made an innocent mistake with respect to the electricity records. This court rejects a trial court’s findings after a Franks hearing only if they are clearly erroneous. State v. Stepney, 191 Conn. 233, 239, 464 A.2d 758, cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). We conclude that the trial court’s conclusion that the affiants did not act with intentional or reckless disregard for the truth was not clearly erroneous. The court did find, as the state stipulated, that Hayes had relied on inapplicable electricity records. “It is not enough, however, for the defendant to show an error in an affidavit. The error must be shown by a preponderance of the evidence to have been ‘knowingly and intentionally’ false or made ‘with reckless disregard for the truth.’ Franks v. Delaware, supra, [438 U.S.] 155. ‘Allegations of negligence or innocent mistake are insufficient’ to require a reevaluation of the affidavit. Id., 171.” State v. Stepney, supra, 239. Given the evidence adduced at the hearing, we conclude that it was not clearly erroneous for the trial court to have found that Hayes innocently was mistaken about which electricity record covered which floor of the building.

Moreover, even if the trial court should have concluded that the statements were intentionally false or made with reckless disregard for the truth, we conclude that other facts existed that were sufficient to sustain a finding of probable cause. This court has stated that if, despite a violation of Franks v. Delaware, supra, 438 U.S. 154, “the affidavit’s remaining content independently establishes probable cause, the warrant is valid and the evidence seized pursuant to it need not be suppressed.” State v. Delmonaco, 194 Conn. 331, 335, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). We conclude that, even if the electricity records were disregarded, the warrant affidavit provided, as we discuss in part III of this opinion, sufficient probable cause to search the defendant’s commercial premises.

The state argues, and we agree, that the claims with respect to the karate class schedule and the visibility of the second floor from the rear fire escape are without merit because, under Franks, the truthfulness of the affiant, and not the informant, is the issue. Federal precedent limits the Franks challenge to the veracity of the affiant. See State v. Glenn, 251 Conn. 567, 574-75, 740 A.2d 856 (1999), and cases cited therein. In Glenn, we acknowledged that federal precedent in applying our state constitution to Franks hearings, and we refused to apply Franks to claims that it was the affiant’s informant and not the affiant who was untruthful. Id. We see no reason to depart from that holding in this case.

Accordingly, we reject the defendant’s claim concerning the karate class schedule and the visibility of the second floor from the rear fire escape.

Ill

The defendant claims that there was insufficient probable cause to search the L & M business premises. We conclude to the contrary that, even without the thermal imaging scan results and the electricity bills, there was probable cause set forth in the affidavit.

A number of federal Circuit Courts of Appeal that have reviewed search warrants that were issued partially based on the basis of the results of thermal imaging scans have found that, even without those results, probable cause was established by other information in the warrant affidavits. See United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996) (holding that search warrant was based on probable cause without information supplied by thermal imaging device); United States v. Olson, 21 F.3d 847 (8th Cir.), cert. denied, 513 U.S. 880, 115 S. Ct. 230, 130 L. Ed. 2d 155 (1994) (finding probable cause to search premises independent of information obtained from thermal imaging device, based in part on reports from anonymous informant); United States v. Feeney, 984 F.2d 1053 (9th Cir. 1993) (finding probable cause to search home independent of readings from thermal imaging device, based in part on report from anonymous informant). In like manner, we conclude that the information before the issuing judge established probable cause, even if the results of the imaging scan are excluded.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” (Citations omitted; internal quotation marks omitted.) State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991). In Barton, we adopted the totality of the circumstances standard of Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 76 L. Ed. 2d 917 (1983), in considering informants’ reports for probable cause.

“In determining whether the warrant was based upon probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. McClendon, 248 Conn. 572, 580, 730 A.2d 1107 (1999); State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992).

“If information provided by an unnamed source is believable under the totality of the circumstances test, it may be credited and evaluated along with the other information in the affidavit.” State v. Duntz, supra, 223 Conn. 217. “When hearsay information from third parties is relied on by the affidavit, the ‘veracity’ or ‘reliability’ and ‘basis of knowledge’ of those persons are ‘highly relevant’ in determining the existence of probable cause.” State v. Sivri, 231 Conn. 115, 146, 646 A.2d 169 (1994). “[Statements made by an informant are entitled to greater weight if corroborated by evidence independently gathered by the police.” State v. Rodriguez, 223 Conn. 127, 136, 613 A.2d 211 (1992).

As to the basis of the anonymous caller’s knowledge, the affidavit set forth that the anonymous caller personally observed marijuana plants growing on the second floor of the building where L & M was located. The caller stated that he was on a rear fire escape stairway, taking a cigarette break from his child’s third floor karate class, when he noticed the distinctive odor of marijuana, which he recognized from his service in Vietnam. Looking through a partially opened doorway, he saw approximately twenty to twenty-five six foot marijuana plants under tubular purplish lights. The caller also saw two men in the room with the marijuana plants. He described one man as white, heavyset and balding, and the other man as white, with glasses and a ponytail. The caller thought that the two men were affiliated with the L & M business.

As to the reliability of the caller’s information, Hayes knew, from his personal experience, that a karate school was located on the third floor of the building. He visited the karate school and confirmed that there was an enclosed fire escape stairway accessible at the rear of the building. Hayes also knew from his personal experience that the caller’s descriptions of the two men matched the physical appearance of the defendant and his brother, both of whom Hayes knew operated the L & M home improvement business on the first two floors of the building. Hayes also knew, from a criminal records check, that the defendant had a prior record for a narcotics offense. A suspect’s prior criminal record, even if inadmissible at trial, may be the basis for establishing probable cause. See Brinegar v. United States, 338 U.S. 160, 172-74, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); United States v. Wagner, 989 F.2d 69, 73-74 (2d Cir. 1993). Town records indicated that Lida Mordowanec, the mother of the defendant and his brother, owned the building. In addition, Hoyt, who was trained and experienced in indoor marijuana cultivation investigations, confirmed that indoor marijuana cultivation commonly employed 1000 watt grow lights that emit a bluish color.

The caller’s report that L & M, a home improvement business, not a florist or a vegetable market, was using high-powered grow lights in midwinter was consistent with marijuana growing. The caller’s sighting of those lights inside a home improvement shop in the middle of winter supports a finding of probable cause. In United States v. Cusumano, supra, 83 F.3d 1248-49, the court found probable cause from the occupant’s use of a grow light to grow vegetables in a concealed basement containing an underground swimming pool.

From the information that the caller provided, it was also clear that he was a citizen informer, and, therefore, deserving of credibility. As the affidavit reflects, the caller telephoned the police department and engaged in a conference or three-way conversation with the detective and gave extensive details as to his happening to witness the growing of marijuana at the premises. He also urged the officers to act quickly. “Although anyone who gives information to the police in confidence might be called a ‘confidential informant,’ the term is usually employed in a more restricted sense to describe a person who is himself in the underworld, so that he is particularly well placed to know its secrets. Courts have properly distinguished between such ‘confidential informants’ and the average citizen who, as a victim or a witness, happens to have information useful to the police. Such ‘citizen informers’ are considered more deserving of credibility than are underworld informers, and courts have accordingly tended to examine the basis and sufficiency of a citizen informer’s information more closely than his credibility.” State v. Barton, supra, 219 Conn. 542 n.10. We conclude that the affidavit contained facts from which the issuing judge reasonably could have found that the caller spoke from personal knowledge based upon his experience in Vietnam and also reasonably could have concluded that the anonymous caller’s information was reliable, even if the results of the thermal imaging scan and the electricity bills were excluded.

In Gates v. Illinois, supra, 462 U.S. 213, the informant’s identity was unknown, but his report was sufficiently detailed and confirmed by a police investigation to establish probable cause. As in Gates, the facts set forth in the affidavit in the present case supported an inference that the informant’s report was not the repetition of a “casual rumor” but rather one, as the informant reported, gained by personal, firsthand visual observation. Here, as in Gates, the magistrate “could properly conclude that it was not unlikely that [the informant] had access to reliable information of the . . . alleged illegal activities.” Id., 245.

Finally, the United States Supreme Court has stated that, “[b]ecause a search warrant provides the detached scrutiny of a neutral magistrate . . . we have expressed a strong preference for warrants and declared that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. . . . Reasonable minds frequently may differ on the question whether a particular- affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate’s determination.” (Citations omitted; internal quotation marks omitted.) United States v. Leon, 468 U.S. 897, 913-14, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). We also have stated in State v. Duntz, supra, 223 Conn. 216, that “[i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination.” (Internal quotation marks omitted.) As the United States Supreme Court has noted, “[a] grudging or negative attitude by reviewing courts toward warrants ... is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner. . . . Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate’s probable-cause determination has been that so long as the magistrate had a substantial basis for . . . concluding] that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” (Citations omitted; internal quotation marks omitted.) Illinois v. Gates, supra, 462 U.S. 236; see also State v. Cobb, 251 Conn. 285, 317, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 641 (2000); State v. Diaz, 226 Conn. 514, 535-36, 628 A.2d 567 (1993) (neither Connecticut constitution nor General Statutes § 52-33f requires de novo review of issuing judge’s determination that probable cause existed to issue search warrant).

Mindful of the preference for search warrants and the deference to which they are entitled, we uphold the trial court’s determination that the motion to suppress should be denied.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 21a-277 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance . . . may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”
      General Statutes § 21a-279 (b) provides in relevant part: “Any person who possesses or has under his control . . . four ounces or more of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than five years or be fined not more than two thousand dollars or be both fined and imprisoned, and for a subsequent offense may be imprisoned not more than ten years or be fined not more than five thousand dollars or be both fined and imprisoned.”
      General Statutes § 21a-277 (c) provides: “No person shall knowingly possess drug paraphernalia in a drug factory situation as defined by subdivision (20) of section 21a-240 for the unlawful mixing, compounding or otherwise preparing any controlled substance, for purposes of violation of this chapter.” The original information also charged the defendant with cultivation of marijuana in violation of General Statutes § 21a-278 (b), but that charge was dropped when the defendant entered his plea of nolo contendere.

       According to the trial court’s memorandum of decision, “[t]he inventory for property seized contains 40 entries for items seized, including: (1) 19 plastic buckets, each containing soil and 1 marijuana plant (approximately 6 feet tall); (2) assorted greenish plant-like material; (3) 2 clear plastic bags containing ground-up greenish plant-like material; (4) 1 box of ‘Gro-Best’ plant food; (5) 1 box of Zip-loc baggies; (G) 1 box of ‘Miracle-Gro’ plant food; (7) 1 white hand shovel; (8) 1 Tntermaüc’ electric timer; (9) 1 pair of handled scissors; (10) 1 pair of wire strippers; (11) 1 pair of snips; (12) 1 ‘AR 20 Colored Floor Grout’ color chart; (13) 2 sponges; (14) 1 wooden handled trowel; (15) 2 ‘Windex’ spray bottles containing a clear liquid; (16) 1 small plastic watering can; (17) 1 metal pitcher; (18) 1 plastic bucket; (19) 1 ‘Tork’ time control unit; (20) 1 15-pound bag of ‘Hyponex All-Purpose Potting Soil’; (21) 4 five-gallon plastic buckets, 2 containing soil and 1 containing a length of electric wire; (22) 1 cardboard box containing 4 ‘Wide Spectrum Plant & Aquarium’ 48-inch 48-watt tubular light bulbs; (23) 1 electric extension cord; (24) 1 4-bladed electric ceiling fan; (25) 3 empty prescription bottles issued to [the defendant]; (26) 1 plastic tube approximately two inches in length containing a residue; (27) plant-like seeds contained in two plastic baggies and one prescription bottle; (28) 1 25-pound bag of ‘Frank’s All Purpose Natural Fertilizer’; (29) 1 bag of ‘Scott’s’ potting soil (nearly empty); (30) 1 pair of cloth gloves; (31) 1 glass ashtray containing remnants of tobacco and marijuana cigarettes; (32) 6 white plastic soil pots; (33) 6 ceramic soil pots; (34) 1 beige plastic soil pot; (35) 4 8-foot fluorescent lighting fixtures containing 2 ‘Gro-Lux’ bulbs each; (36) 2 4-foot fluorescent lighting fixtures containing 4 ‘Plant & Aquarium’ bulbs each; (37) 1 yellow electric extension cord; (38) 2 ‘Gro-Lux’ 8-foot fluorescent bulbs; (39) documentation consisting of SNETCO bill, states sales and tax use permit and Amoco statement; (40) 1 ‘Lakewood’ 1500-watt electric heater.”

       The defendant’s brother was convicted of cultivation of marijuana in violation of § 21a-277 (b) and possession of marijuana in violation of § 21a-279 (b). The trial court sentenced him to two concurrent sentences of four years, execution suspended, with four years probation. Daniel Mordowanec did not appeal from his judgment of conviction.

       The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” The fourteenth amendment to the United States constitution provides that no state shall “deprive any person of life, liberty or property, without due process of law . . . .”
      Similarly, article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Article first, § 8, provides that no person shall “be deprived of life, liberty or property without due process of law . . . .”

        In Franks v. Delaware, supra, 438 U.S. 155-56, the United States Supreme Court held that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.”

       As the United States Supreme Court has noted, there may be exigent circumstances, such as terrorism, that are not related to ordinary crime control. See Indianapolis v. Edmond, 531 U.S. 32, 45, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). This counsels caution in deciding issues regarding the use of sense-enhancing technology such as that involved in the present case.

       The caller indicated that he had made his incriminating observations during a break from his child’s karate class at approximately noon a few days before he called the police.

       The caller stated that he was standing on the rear fire escape stairwell when he looked through the doorway to the second floor and viewed the blue lights and the marijuana plants.

       It was never established, however, whether the caller’s child was participating in karate classes for adults or children.

       The defendant also claims, for the first time on appeal, that the use of the electricity records obtained from Northeast Utilities under a so-called “administrative subpoena” was in effect an illegal, warrantless search and should not have been considered in the probable cause analysis of the warrant affidavit. We conclude that the defendant cannot prevail on this unpreserved claim because he has failed to establish that he has a legitimate expectation of privacy in the records of his electricity usage. See United States v. Miller, 425 U.S. 435, 442-43, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (no fourth amendment interest in financial records kept at bank).
      We also reject the defendant’s argument that he had a privacy interest in his electricity records protected under General Statutes § 16-262c (e), which provides in relevant part: “No provision of the Freedom of Information Act . . . shall be construed to require or permit a municipal utility furnishing electric . . . service ... to disclose records under the Freedom of Information Act . . . which identify or could lead to identification of the utility usage or billing information of individual customers, to the extent such disclosure would constitute an invasion of privacy.” (Emphasis added.) Because there is nothing in the record to establish that Northeast Utilities is a “municipal utility,” we conclude that this statutory provision is not applicable to this case.

       The trial court disregarded the electricity usage records, as do we.


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    KEVIN WAGNER ET AL. v. CLARK EQUIPMENT COMPANY, INC., ET AL.
    (SC 16505)
    Borden, Norcott, Katz, Vertefeuille and Zarella, Js.

      Argued September 13, 2001
    officially released January 29, 2002

      Wesley W. Horton, with whom were Kimberly A. Knox, and, on the brief, Karen L. Dowd, Daniel J. Krisch and Colleen A. Madden, legal intern, for the appellants (defendants).

      Jacques J. Parenteau, for the appellee (named plaintiff).

      Jeremy G. Zimmermann, Mary A. Wells, pro hac vice, L. Michael Brooks, Jr., pro hac vice, and Hugh F. Young, Jr., pro hac vice, filed a brief for the Product Liability Advisory Council, Inc., as amicus curiae.

      Michael P. Koskoff, Antonio Ponvert III, Robert B. Adelman and Jeffrey Robert White, pro hac vice, filed a brief for the Connecticut Trial Lawyers Association et al. as amicus curiae.
   Opinion

ZARELLA, J.

The plaintiff, Kevin Wagner, brought this product liability action against the defendants, Clark Equipment Company, Inc. (Clark), and Summit Handling Systems, Inc., doing business as Clarklift of Connecticut (Summit), for injuries sustained when a forklift manufactured by Clark and distributed by Summit crushed the plaintiffs left foot. The jury returned a verdict in favor of the plaintiff in the amount of $3 million, and the trial court, Hurley, J., rendered judgment in accordance with the verdict. The defendants appealed from that judgment and, in an earlier decision, this court reversed the judgment of the trial court and remanded the case for a new trial. Wagner v. Clark Equipment Co., 243 Conn. 168, 201, 700 A.2d 38 (1997). On remand, the jury returned a verdict in favor of the plaintiff in the amount of $9,412,382.56, and the trial court, Koletsky, J., rendered judgment in accordance with that verdict, from which the defendants appealed.

The dispositive issue in this appeal is whether the trial court, Koletsky, J., improperly limited the testimony of the defendants’ expert witness to the subject matter specified in the expert witness disclosure filed after the first trial but before the second trial, on the basis of the trial court’s determination that that disclosure superseded an earlier expert witness disclosure filed before the first trial. Additionally, the plaintiff urges us to consider, in the event that we order a new trial, whether the trial court improperly denied his request for leave to amend his complaint and improperly excluded certain evidence because it was outside the scope of the allegations contained in the operative complaint. We conclude that the trial court improperly limited the testimony of the defendants’ expert witness to the subject matter specified in the disclosure filed after the first trial but before the second trial. We also conclude that the trial court, Handy, J., improperly denied the plaintiffs request for leave to amend his complaint. Accordingly, we reverse the judgment of the trial court.

The following relevant facts and procedural history are undisputed. The plaintiff was employed as a carpenter for the Electric Boat Division of General Dynamics Corporation (Electric Boat) in Groton. On October 25, 1989, the plaintiff was directing an overhead crane operator from the ground when a forklift backed up and struck him from behind, knocking him to the ground. The forklift ran over the plaintiffs left foot, causing serious injuries that eventually resulted in the amputation of the plaintiffs left leg below the knee.

The plaintiff brought this product liability action pursuant to General Statutes § 52-572m. Specifically, the plaintiff alleged that the forklift “was defective and unreasonably dangerous” because it lacked, inter alia: (1) a mirror “on the right side of the [forklift] cab”; (2) a strobe light that “would have directed bright, blinking light directly at [the plaintiff]”; and (3) a back-up alarm that sounded “sufficiently distinct to warn [the plaintiff] . ” The jury returned a verdict in favor of the plaintiff. The defendants filed several posttrial motions, including a motion to set aside the verdict and for a new trial, and a motion to have judgment rendered in accordance with the defendants’ motion for a directed verdict. The trial couit denied all of the defendants’ posttrial motions and rendered judgment in accordance with the jury’s verdict. This appeal followed.

I

The defendants claim that the trial court improperly limited the testimony of their expert witness to the subject matter specified in their expert witness disclosure filed after the first trial but before the second trial. The defendants argue that this disclosure, which was preceded by an earlier expert witness disclosure filed before the first trial, did not displace the first disclosure, but, rather, supplemented, it, and, therefore, their expert should have been allowed to testily concerning the subject matter contained in the first disclosure. The plaintiff, on the other hand, contends that the trial court properly limited the testimony of the defendants’ expert to the subject matter contained in the second disclosure. We agree with the defendants.

The following additional facts are necessary to the disposition of the defendants’ claim. In 1993, before the first trial, the defendants disclosed Walter Girardi as one of their expert witnesses. The defendants disclosed that Girardi was to testify on the issue of whether the forklift involved in the plaintiffs accident was defectively designed. In 1998, after this court reversed the first trial court’s judgment and remanded the case for a new trial; Wagner v. Clark Equipment Co., supra, 243 Conn. 201; but prior to the commencement of the new trial, the defendants again disclosed Girardi as an expert who they were expecting to call during the new trial. In their second disclosure, dated June 30, 1998, the defendants stated that Girardi would testify as to “safe and proper material handling practices in industrial settings [such as] . . . Electric Boat . . . ,” The second disclosure did not indicate whether it was supplementary to or in lieu of the first disclosure.

Subsequently, the plaintiff filed a motion in limine in which he stated, inter aha, that he expected that “Girardi [would] offer testimony consistent with the testimony at the [first] trial [at which he] . . . suggested [that] there was scientific, technical or specialized knowledge to support it.” (Internal quotation marks omitted.) According to the plaintiff, it was questionable whether Girardi’s testimony would comport with the rule on the admissibility of expert testimony established in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), which was decided after the first trial but before the commencement of the second trial. Additionally, the plaintiff stated in his motion in limine that he expected that the “defendants [would] attempt to offer expert [testimony] to deny [his] claim of defect and in support of their special defenses alleging that some other person or entity other than [the] defendants [is] liable for the injuries caused to [the] plaintiff.” The trial court subsequently denied the plaintiffs motion in limine.

At the second trial, the defendants presented Girardi as an expert. When the defendants sought to question Girardi about the safety standards for forklifts, the plaintiff objected, claiming that the testimony was outside the scope1 of the defendants’ disclosure. The trial court allowed Girardi to testify as to the subject matter specified in the second disclosure, but refused to allow him to testify regarding the forklift’s defective design, the subject matter on which Girardi was expected to testify according to the first disclosure. The trial court ruled that the first disclosure was superseded by the second disclosure.

Before reaching the defendants’ claim, we briefly address the applicable standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Torres v. Waterbury, 249 Conn. 110, 118-19, 733 A.2d 817 (1999).” (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000). None of the parties to this appeal has challenged the factual findings of the trial court. Our task, therefore, is to decide whether, on the basis of those factual findings, the trial court’s conclusions of law are legally and logically correct. E.g., Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999).

Our resolution of the defendants’ claim depends on whether a subsequent disclosure of an expert witness that contains no specification that it is intended to supplement a previous disclosure, serves to supplement or to supersede any previous disclosures. The disclosure of experts is governed by Practice Book §§ 13-4 and 13-15.* Under Practice Book §§ 13-4 and 13-15, parties have a continuing duty to disclose information and, thus, they are required to supplement their disclosures with the names of any additional experts who are expected to testify and to designate any additional subject matter on which the experts are expected to testify. Pursuant to Practice Book § 13-4 (4), a court has the authority to preclude the testimony of an expert if, upon motion, the court determines that the late disclosure “will cause undue prejudice to the moving party . . . or . . . undue interference with the orderly progress of trial of the case ... or [when the later disclosure] involves bad faith delay ... by the disclosing party.” Practice Book § 13-4 (4).

The trial court in the present case did not limit Girardi’s testimony based on the existence of any of the factors enumerated in § 13-4 (4). Rather, the trial court concluded that the defendants’ second disclosure effectively nullified the defendants’ first disclosure, thereby limiting the subject matter of Girardi’s testimony. The trial court based its conclusion of law upon the absence of any indication by the defendants that they intended the second disclosure to supplement the first disclosure. We disagree with the trial court’s conclusion.

Pursuant to Practice Book § 13-15, parties are under a continuing duty to “file and serve in accordance with [Practice Book §§] 10-12 through 10-17 a supplemental or corrected compliance” upon the discovery of additional or new material or information. Nothing in the rules of practice, however, requires that this supplemental or corrected compliance be labeled clearly as such. Although we believe it is a more prudent course to notify the court and the other parties of the supplemental nature of a disclosure, we disagree with the trial court’s conclusion that the absence of such notification effectively nullifies any prior disclosures.

The plaintiff contends that the parties were directed, pursuant to a scheduling order issued on January 6, 1998, to redisclose all expert witnesses expected to testify at the second trial. We disagree with this characterization, however, because the scheduling order did not contain any language indicating any such mandate. Furthermore, to the extent that the scheduling order at issue contains words such as “update” and “clarify” to describe more fully the actions to be taken by the prescribed dates, it suggests the opposite.

The plaintiffs claim that the trial court properly limited Girardi’s testimony to the subject matter specified in the second disclosure because the plaintiff had not been given fair notice is equally unavailing. The plaintiff argues that, because he understood that the defendants’ second disclosure was the only operative disclosure, he believed that Girardi would not be testifying on the subject of design defect. Thus, the plaintiff argues, he would have been unfairly surprised at the second trial had the trial court allowed the defendants to elicit testimony from Girardi regarding design defect. The plaintiff, therefore, asserts that the proper standard of review on appeal is abuse of discretion. We conclude, however, that, even under this more stringent standard of review, the trial court reasonably could not have found that the plaintiff would have been unfairly surprised by Girardi’s testimony concerning the subject matter specified in the first disclosure, namely, design defect.

Although Practice Book § 13-4 (4) provides that an expert shall not testify if the court determines that a late disclosure will cause undue prejudice, the disclosure at issue was not late. Furthermore, the plaintiff stated in his motion in limine, which was filed prior to the second trial, but after the defendants filed their second disclosure, that “[i]t is expected that [the] defendants will attempt to oiler expert evidence to deny [the] plaintiffs claim of defect . . . .” The plaintiffs assertion, therefore, that Girardi’s testimony concerning design defect would have caused him undue prejudice or that he had not been given fair notice of the subject matter contained in the first disclosure is not supported by the record. To the contrary, the defendants, not the plaintiff, suffered prejudice by virtue of the trial court’s decision to preclude the defendants from eliciting testimony on the issue of design defect from the only expert witness that the defendants called for that purpose. Accordingly, we hold that the trial court improperly concluded that the June 30, 1998, or second, disclosure failed to give “fair notice” to the plaintiff regarding the full extent of Girardi’s testimony.

II

On the basis of our conclusion in part I of this opinion, we reverse the judgment of the trial court and remand the case for a new trial. Consequently, we turn to the plaintiffs claim that the trial court, Handy, J., improperly denied the plaintiffs request for leave to amend his complaint following the first trial. See footnote 3 of this opinion and accompanying text. Specifically, the plaintiff claims that he should have been permitted to amend his complaint because the requested amendments did not allege a new cause of action, but merely amplified the operative pleadings and, therefore, were not time barred. We conclude that the trial court abused its discretion in denying the plaintiffs request for leave to amend following the first trial.

The following additional facts are necessary to our resolution of this issue. The original complaint in this case was filed in 1991. On August 21, 1995, the plaintiff filed an amended complaint. On December 5, 1995, in the course of the first trial, the plaintiff filed a motion for leave to amend his complaint. The requested amendment pertained to the issue of whether the forklift was defective because its back-up alarm did not sound continuously when the shifting lever was in the reverse position. The plaintiff claims that his request for leave to amend was made in response to the unexpected cross-examination testimony of Robert M. Sarette, the operator of the forklift, during the first trial. Sarette testified that the back-up alarm might not have been sounding continuously prior to impact with the plaintiff. The plaintiff alleges that this was unexpected testimony because, in a statement signed by Sarette on the day of the accident, Sarette stated that “[a]t the time of the accident, [he] was moving at a slow rate of speed and [the back-up] alarm was operational.” The trial court, Hurley, J., denied the plaintiffs request for leave to amend.

On October 16, 1997, after the first trial but before the second trial, the plaintiff filed another request for leave to amend his complaint. The plaintiff sought to amend his complaint by adding a paragraph alleging a breach of an implied warranty of fitness for a particular purpose and two paragraphs containing allegations concerning the back-up alarm on the forklift. The defendants filed an objection to the plaintiffs October 16, 1997 request to amend on November 4, 1997, pursuant to what is now Practice Book § 10-60 (a). The trial court, Handy, J., sustained the defendants’ objection to the plaintiffs request for leave to amend, concluding that the claims that formed the basis of the request for leave to amend were “barred by the applicable statute of limitations and further barred by prior rulings in this case which constitute the law of the case . . . .”

On August 27,1998, the plaintiff filed another request for leave to amend his complaint. The plaintiffs proposed amendments were identical to those proposed in the plaintiffs October 16, 1997 request for leave to amend. On August 31, 1998, the defendants filed an objection to the plaintiffs latest request and the trial court, Koletsky, <■/., sustained the objection.

Our standard of review of the plaintiffs claim is well settled. “While our courts have been liberal in permitting amendments; Johnson v. Toscano, 144 Conn. 582, 587, 136 A.2d 341 [1957]; this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959). The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. Freccia v. Martin, 163 Conn. 160, 164, 302 A.2d 280 (1972). Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 488 (1983). Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. Falby v. Zarembski, 221 Conn. 14, 24, 602 A.2d 1 (1992). It is the [plaintiffs] burden in this case to demonstrate that the trial court clearly abused its discretion. Kelley v. Bonney, 221 Conn. 549, 591, 606 A.2d 693 (1992).” (Internal quotation marks omitted.) AirKaman, Inc. v. Groppo, 221 Conn. 751, 766-67, 607 A.2d 410 (1992).

We focus our attention upon the plaintiffs second attempt to revise his complaint on October 16, 1997,

which was denied by the trial court, Handy, J. The court determined, inter alia, that the claims that formed the basis for the plaintiffs request for leave to amend were barred by the applicable statute of limitations. The plaintiff argues that the claims that formed the basis of his request for leave to amend arise out of the same cause of action as that alleged in the complaint and, therefore, those claims are not barred by the applicable statute of limitations.

It is true that a party properly may “amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same.” (Internal quotation marks omitted.) Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985). If a new cause of action is alleged in an amended complaint, however, it will “[speak] as of the date when it was filed.” Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974). “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated.” (Citations omitted; internal quotation marks omitted.) Sharp v. Mitchell, 209 Conn. 59, 71-72, 546 A.2d 846 (1988).

In the present case, the plaintiff challenges the ruling of the trial court only as to the addition of paragraphs “s” and “t” to his complaint. We, therefore, do not address the propriety of adding paragraph “r.” The allegations found in proposed paragraphs “s” and “t,” which pertain to the issue of design defect with respect to the back-up alarm, arise out of the same set of facts set forth in the complaint, namely, an injury caused by a defective forklift. Consequently, paragraphs “s” and “t” contain allegations that arise from the same cause of action stated in the complaint, and, thus, the proposed amendments in paragraphs “s” and “t” are not barred by the statute of limitations.

The trial court, Handy, J., also relied on the law of the case to sustain the defendants’ objection to the plaintiffs October 16,1997 request to amend. The defendants argue that the law of the case doctrine bound the court to the earlier ruling in which the trial court, Hurley, J., had refused to grant the plaintiffs request for leave to amend. This claim is without merit. “A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . [0]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.” (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 98-99, 439 A.2d 1066 (1982).

Moreover, because the circumstances surrounding the plaintiffs first request for leave to amend were very different from those surrounding the plaintiffs October 16, 1997 request for leave to amend, the court properly could have deviated from the earlier decision. The plaintiffs first attempt to amend his complaint had been made during the course of the first trial, whereas the second attempt was made after the first trial and nearly two years prior to the second trial. Thus, in light of this change in circumstances, the court properly should have considered the plaintiffs request for leave to amend.

The judgment is reversed and the case is remanded with direction to grant the plaintiffs request for leave to amend his complaint and for a new trial.

In this opinion the other justices concurred.

       The plaintiff was joined in the original action by his ex-wife, Kim Wagner, who sought damages for loss of consortium. Subsequently, however, she withdrew her claim against the defendants and is no longer a party to this case. We refer to Kevin Wagner as the plaintiff throughout this opinion.

       The defendants appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       The plaintiff raised this issue in a preliminary statement of issues filed with this court pursuant to Practice Book § 63-4 (a) (1), which provides in relevant part: “If any appellee wishes to . . . (B) present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial . . . that appellee shall file a preliminary statement of issues within twenty days from the filing of the appellant’s preliminary statement of the issues. . . .”

       In light of our conclusion that the trial court’s judgment must be reversed and the case remanded for a new trial, we do not reach the merits of the defendants’ other claims, namely, that the trial court improperly: (1) failed to extend the requirements for the admissibility of expert scientific testimony set forth in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), to the nonscientific expert testimony offered by the plaintiff; (2) excluded the prior testimony of the plaintiffs ex-wife, an unavailable witness on the issue of mitigation of damages; and (3) recharged the jury in response to the juiy’s interrogatories on issues relating to liability by failing to include a definition of the term “unreasonably dangerous.” In addition, we note that, with respect to the defendants’ claim regarding the extension of Porter to nonscientific expert testimony, our review of the record discloses that the defendants did not clearly request that the trial court do so. Rather than address such a claim on this state of the record, therefore, we defer our resolution of that claim to a case in which the record squarely presents it.

       Because we conclude that the trial corut improperly denied the plaintiffs request for leave to amend his complaint prior to the second trial, we do not reach the merits of the plaintiffs claim that the trial court improperly excluded certain evidence because it was outside the scope of the allegations contained in the operative complaint.

       General Statutes § 52-572m provides in relevant part: “(b) ‘Product liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent. . . .”

       Specifically, this first disclosure stated that Girardi was expected to testify that the forklift “was not defectively designed or manufactured, and . . . that it was not defective in any other way alleged by the plaintiff . . . .”

       More specifically, the defendants stated in their second disclosure that Girardi would testify that “the material handling practices used and followed at Electric Boat’s Groton facility ... at or near the time of [the plaintiffs] injury were neither safe nor proper.”

       During discussion of the plaintiffs objection to Girardi’s testimony, the following colloquy took place:
      “[Jacques J. Parenteau, the Plaintiffs Attorney]: This witness is disclosed, Your Honor, to testify as to the safe and proper material handling practices in industrial—
      “The Court: Hold it.
      “Mr. Parenteau: The subject matter which Mr. Girardi is expected to testify to—
      “The Court: I understand. You want to object that the testimony is outside the disclosure
      “Mr. Parenteau: Correct.
      “[E. Wayne Taff, the Defendants’ Attorney]: I do want to tell the court the initial disclosure—the other disclosure was intended to supplement the initial disclosure.
      “The Court: I don’t think that’s what it says.
      “Mr. Taff: It may not, Your Honor. But I can tell you what was the intent, and the witness has been fully deposed, fully testified on various subject matters of product design and by [the plaintiffs attorney] in this matter. And I can tell you, Your Honor, that is the intent, perhaps not the language, but the intent of the later disclosure was ... to make clear' there would also be discussion of material handling practices.
      “The Court: . . . I’m not challenging your statement that [the second disclosure] was intended to . . . supplement the [first] disclosure. I am ruling, however, that it doesn’t say so, and, therefore, is not fair notice of the defendants]. And you may not ask—well, I’m not going to do a global ruling. . . . [M]y ruling is that you—that the witness not be permitted to testify outside the fair reading of the [second] disclosure.”

       Practice Book § 13-4, formerly Practice Book, 1978-97, § 220, provides in relevant part: “(4) . . . [A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. . . .”

       Practice Book § 13-15, formerly Practice Book, 1978-97, § 232, provides: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, that party shall promptly notify the other party, or the other party’s attorney, and file and serve in accordance with Sections 10-12 through 10-17 a supplemental or corrected compliance.”

       Hereinafter, we refer to the plaintiffs amended complaint of August 21, 1995, which is the operative complaint for purposes of our analysis, as the “complaint.”

       On appeal, the plaintiff does not claim that the trial court, Hurley, J., abused its discretion in denying this request for leave to amend his complaint.

       The plaintiff sought to amend his complaint by adding the following paragraphs:
      “r. . . . Summit breached the implied warranty of fitness for a particular purpose.
      “s. The forklift was defective and unreasonably dangerous because it was assembled by Summit . . . such that the [back-up] alarm would stop sounding when the gear lever was in reverse while the clutch brake pedal was depressed.
      “t. The forklift was defective and unreasonably dangerous because it was assembled by Summit . . . such that the [back-up] alarm was deactivated by disengaging the transmission when the shifting lever was in reverse.”

       Practice Book § 10-60 (a) provides in relevant part: “[A] party may amend his or her pleadings ... in the following manner . . .
      “(2) By written consent of the adverse party; or
      “(3) By filing a request for leave to file such amendment, with the amendment appended .... If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party ... be filed . . . within the time specified above and placed upon the next short calendar list.”

       Furthermore, the trial court, Handy, J., concluded that it would not overrule the defendants’ objection to the plaintiffs request for leave to amend even though the defendants’ objection had not been filed within fifteen days of the plaintiffs request for leave to amend; see Practice Book § 10-60 (a); because to do so would “elevate form over substance . . . .”

       See footnote 14 of this opinion.

       The plaintiff also claims that the trial court, Koletsky, J., abused its discretion in sustaining the defendants’ objection to the plaintiffs August 27,1998 request for leave to amend his complaint. Because we conclude that the trial court, Handy, J., abused its discretion in sustaining the defendants’ objection to the plaintiffs October 16, 1997 request for leave to amend his complaint, we do not address this claim.

       See footnote 14 of this opinion.

       See footnote 14 of this opinion.

       The law of the case doctrine provides that when “a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).