Daley v. J.B. Hunt Transport, Inc. , 187 Conn. App. 587 ( 2019 )

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DWIGHT DALEY v. J.B. HUNT
TRANSPORT, INC., ET AL.
(AC 39835)
DiPentima, C. J., and Lavine and Moll, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for, inter alia,
a violation of the Connecticut Fair Employment Practices Act (§ 46a-
60 et seq.) in connection with the termination of the plaintiff’s employ-
ment. The day after the jury returned its verdict in favor of the plaintiff,
one of the jurors, R, appeared at the courthouse and notified court staff
that she was ready to continue jury deliberations. After the trial judge
reminded R that the jury had returned its verdict the day before and of
the amount of the verdict, R became visibly upset and stated that she
did not remember the jury concluding its deliberations or returning its
verdict. The court subsequently held a status conference in which it
informed the parties’ attorneys of the events that had transpired with
R. Thereafter, the defendants filed a motion seeking a new trial or,
alternatively, an evidentiary hearing regarding the competency of R. The
trial court denied the defendants’ motion seeking a new trial or an
evidentiary hearing, finding that the parties had deemed R to be an
acceptable juror during jury selection, and that the parties did not chal-
lenge the competency of R during the evidentiary portion of the trial,
jury deliberations or the return and acceptance of the jury’s verdict. On
the defendants’ appeal and the plaintiff’s cross appeal, held that, under
the unique circumstances of this case, the trial court erred in failing to
hold a postverdict evidentiary hearing to examine R’s competency during
trial; there must be a preliminary showing of strong evidence that the
juror likely was incompetent during his or her jury service before a trial
court is required to conduct a full postverdict inquiry into the juror’s
competency, as that standard serves the interests of the avoidance of
postverdict harassment of jurors, the preservation of the finality of
judgments, the discouragement of meritless applications for postverdict
hearings, and the reduction of the likelihood of and temptation for
jury tampering, and there was sufficient evidence in the present case
indicating that R likely was not competent to serve on the jury, as R’s
statements to the trial judge and in a letter she had submitted to the
court, in which she stated that she had experienced a memory gap with
respect to the deliberations and the verdict, that she was concerned
that she may have suffered other mental lapses during the trial and that
she planned to undergo a medical evaluation to determine whether
she suffered from dementia or Alzheimer’s disease, constituted strong
evidence that R likely had been incompetent during her jury service,
such that a full inquiry by the court into R’s competency was necessary.
Argued October 11, 2018—officially released February 5, 2019
Procedural History
Action to recover damages for, inter alia, wrongful
termination of employment, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield and tried to the jury before Hon. William B.
Rush, judge trial referee; verdict and judgment for the
plaintiff; thereafter, the court denied the defendants’
motion for a new trial and their motion to set aside the
verdict and for judgment notwithstanding the verdict,
and the defendants appealed and the plaintiff cross
appealed to this court. Reversed in part; further pro-
ceedings.
Christopher M. Hodgson, with whom, on the brief,
was Warren L. Holcomb, for the appellants-cross appel-
lees (defendants).
Francis D. Burke, for the appellee-cross appellant
(plaintiff).
Opinion
MOLL, J. The defendants, J.B. Hunt Transport, Inc.
(J.B. Hunt), and David Bryant, appeal, and the plaintiff,
Dwight Daley, cross appeals, from the judgment of the
trial court rendered in accordance with a jury verdict
returned in favor of the plaintiff. The threshold issue
raised by the defendants on appeal that we must resolve
is whether the court erred in declining to conduct a
postverdict evidentiary hearing to determine whether
one of the jurors, R.L.,1 had been competent to serve
on the jury. We conclude that the court committed
error, and we reverse in part the judgment of the court
and remand the case for further proceedings while
retaining our jurisdiction over the remaining claims on
appeal and over the cross appeal pending the outcome
of the proceedings on remand.
The following facts, as found by the trial court in its
memorandum of decision or as undisputed in the
record, and procedural history are relevant to our reso-
lution of the threshold issue before us. In December,
2013, the plaintiff commenced the underlying action
against the defendants. In the operative complaint
(complaint), the plaintiff alleged, inter alia, that the
defendants terminated his employment despite pre-
viously having assured him that he could return to work
after he recovered from injuries he had sustained as
a result of a motor vehicle accident unrelated to his
employment. The complaint included, inter alia, the
following counts asserted against the defendants: viola-
tion of the Connecticut Fair Employment Practices Act,
General Statutes § 46a-60 et seq.; promissory estoppel;
negligent misrepresentation; fraudulent misrepresenta-
tion; and, as to J.B. Hunt only, breach of the implied
covenant of good faith and fair dealing. The defendants
denied the plaintiff’s substantive allegations and raised
several special defenses. The plaintiff denied the allega-
tions of the defendants’ special defenses.
The case was tried to a jury over the course of seven
days in August, 2016. Shortly after 5 p.m. on Thursday,
August 11, 2016, following less than one day of delibera-
tions,2 the jury returned a verdict in favor of the plaintiff,
awarding him $200,000 in economic damages and
$25,000 in noneconomic damages. In reaching its ver-
dict, the jury answered several interrogatories.3 On the
record, the clerk twice read the jury’s verdict and its
answers to the interrogatories, and, after each recita-
tion, the clerk asked the jury to confirm its verdict.
All of the jurors, including R.L., replied ‘‘yes’’ on both
occasions.4 The trial court, Hon. William B. Rush, judge
trial referee, thereupon accepted and recorded the ver-
dict at 5:08 p.m.
On Friday, August 12, 2016, R.L. appeared at the
courthouse where the underlying case had been tried
and notified court staff that she was ready to continue
jury deliberations.5 Judge Rush spoke with R.L. in the
civil caseflow office and reminded her that the jury had
returned its verdict in favor of the plaintiff the day
before. Judge Rush also reminded R.L. of the amount
of the verdict. In response to that information, R.L.
became visibly upset and stated that she did not remem-
ber the jury concluding its deliberations or returning
its verdict. Immediately thereafter, the court scheduled
a status conference, which took place in chambers on
August 16, 2016, during which he apprised the parties’
attorneys of the events that had transpired regarding
R.L. During the status conference, the court also pro-
vided the attorneys with a copy of a handwritten letter
submitted by R.L. to the court,6 which was dated August
12, 2016, in which R.L. wrote in relevant part: Upon
arriving at the courthouse for the purpose of finishing
the jury’s deliberations, she was ‘‘surprise[d]’’ to learn
that the jury had returned its verdict; she did not remem-
ber the jury concluding its deliberations or returning
its verdict the day before; she did not have a prior
history of ‘‘memory gaps,’’ but she ‘‘definitely’’ had expe-
rienced such a memory lapse with regard to the jury’s
deliberations and the return of its verdict; she was con-
cerned that she may have suffered ‘‘other gaps’’ during
the trial; she was sixty-four years old and intended to
undergo a medical evaluation to determine whether she
had ‘‘dementia/Alzheimer’s [disease],’’ which had been
recommended to her by a caregiver because her mother
had been diagnosed with early onset Alzheimer’s dis-
ease at sixty years of age; and she disagreed with the
amount of the verdict, as she would ‘‘never want [the
defendants] to pay any more than [thirty, forty, maybe
fifty] thousand [dollars].’’ (Emphasis in original.)
On September 16, 2016, the defendants filed a motion
seeking a new trial on the ground that R.L. had been
incompetent during the trial, thereby depriving them of
their right to due process.7 As alternative relief, the
defendants requested that the court conduct an eviden-
tiary hearing to evaluate R.L.’s competency.8 The plain-
tiff opposed that motion.
On October 11, 2016, the trial court heard argument
on, inter alia, the defendants’ motion seeking a new
trial or, alternatively, an evidentiary hearing addressing
R.L.’s competency during trial. By way of a memoran-
dum of decision dated November 4, 2016, the court
denied the motion seeking a new trial, including the
alternative request for an evidentiary hearing.9 The
court found that, during jury selection, the parties had
deemed R.L. to be an acceptable juror, and that none
of the parties had challenged the competency of R.L.
during the evidentiary portion of the trial, jury delibera-
tions, or the return and acceptance of the jury’s verdict.
It also found that R.L., along with the other jurors, twice
confirmed the verdict on the record.
In addition, the court determined that, although a
specific claim of juror misconduct generally would
require an inquiry by the court, a juror’s failure to
remember deliberations that resulted in a verdict did
not constitute juror misconduct. The court further
stated in relevant part: ‘‘The instructions to the jury by
the court . . . instructed the jury that each juror must
decide the case for themselves and not merely acqui-
esce in the verdict of their fellow jurors. The fact that,
after the lengthy deliberations and the [rendition and
acceptance of the verdict], a juror does not remember
those events does not mean that they did not take place
in accordance with our laws. The notes of the court
indicate the instructions to the jury were completed at
11:03 a.m. and that the verdict was accepted shortly
after 5 p.m. so that it is not a short period of time that
[R.L.] cannot recall. However the failure to recall those
events is itself a postverdict event. The holding of a
hearing on [the] issue of the competence of [R.L.] during
the course of the trial, the deliberations of the jury
and the rendition and acceptance of the verdict would
require, for a thorough analysis, an inquiry into areas
which, under the law, the court cannot do. If [R.L.]
cannot recall the deliberations and the rendition of the
verdict it is doubtful that [R.L.] could reliably recall the
state of her competency during the trial itself and any
further inquiry would involve the court directly in the
process of the deliberations. Accordingly, the request
of the defendants to hold a hearing and the motion to
set aside the verdict on the issues raised [concerning
R.L. are] hereby denied.’’10 This appeal and cross
appeal followed.
The threshold issue raised by the defendants on
appeal is whether, in light of the events involving R.L.
that transpired on Friday, August 12, 2016, the trial court
erred in declining to conduct a postverdict evidentiary
hearing to determine whether R.L. had been competent
to serve as a juror during the trial. We conclude that,
under the unique circumstances of the present case,
the court committed error in failing to hold a postverdict
evidentiary hearing to examine R.L.’s competency.
We begin by setting forth the relevant standard of
review. ‘‘We consistently have held that, unless other-
wise required by statute, a rule of practice or a rule of
evidence, whether to conduct an evidentiary hearing
generally is a matter that rests within the sound discre-
tion of the trial court.’’ (Internal quotation marks omit-
ted.) Customers Bank v. CB Associates, Inc., 156 Conn.
App. 678, 695, 115 A.3d 461 (2015). The defendants have
not identified a statute, a rule of practice, or a rule
of evidence that required the trial court to hold an
evidentiary hearing to evaluate R.L.’s competency and,
thus, we review the court’s decision declining to con-
duct an evidentiary hearing under the abuse of discre-
tion standard of review.
As an initial matter, we note that, in cases involving
specific allegations of juror misconduct, a trial court
is required to perform a preliminary inquiry into those
allegations. See Harrison v. Hamzi, 77 Conn. App. 510,
522, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d
69 (2003). ‘‘[T]he form and scope of such an inquiry lie
within a trial court’s discretion . . . . That form and
scope may vary from a preliminary inquiry of counsel,
at one end of the spectrum, to a full evidentiary hearing
at the other end of the spectrum, and, of course, all
points in between. Whether a preliminary inquiry of
counsel, or some other limited form of proceeding, will
lead to further, more extensive, proceedings will
depend on what is disclosed during the initial limited
proceedings and on the exercise of the trial court’s
sound discretion with respect thereto.’’ (Internal quota-
tion marks omitted.) Id. In the present case, the thresh-
old issue before us is whether the trial court erred in
declining to conduct a postverdict evidentiary hearing
to address a juror’s competency during trial, rather than
a juror’s alleged misconduct. The parties have not cited,
and our research has not revealed, any authoritative
Connecticut case law that informs our analysis of this
discrete issue. Thus, we turn to federal case law for
guidance. See, e.g., Bristol v. Tilcon Minerals, Inc., 284
Conn. 55, 88, 931 A.2d 237 (2007).
In Sullivan v. Fogg, 613 F.2d 465, 467–68 (2d Cir.
1980), the United States Court of Appeals for the Second
Circuit held that a trial court erred in failing to conduct
a complete postverdict inquiry into a juror’s compe-
tency. In Sullivan, approximately one month following
a criminal jury trial in which the petitioner had been
found guilty of two counts of murder and one count
of illegal possession of a weapon, one of the jurors
contacted the local district attorney to complain that
he was being harassed by ‘‘voices.’’ (Internal quotation
marks omitted.) Id., 466. The juror was brought before
the trial court for questioning to determine whether
he had been competent during the trial. Id. The juror
presented testimony suggesting that he had experi-
enced delusions or paranoid sensations during the trial
and that he had heard ‘‘vibrations’’ throughout the trial
that seemed amplified in the jury room. (Internal quota-
tion marks omitted.) Id. He testified that he had heard
a ‘‘voice, [he had] heard [his] name,’’ and that ‘‘they
were spying maybe in favor of the [petitioner],’’ but that
the ‘‘voices’’ had not influenced him in reaching his
verdict. (Internal quotation marks omitted). Id. He fur-
ther testified that he previously had heard ‘‘voices’’
while serving as a juror in a prior unrelated criminal
trial, which had resulted in a conviction. Id. The trial
court appointed a psychiatrist to perform an indepen-
dent evaluation of the juror. Id. In a written report
submitted to the court, the court-appointed psychiatrist
determined that, although the juror appeared to have
a ‘‘schizoid personality with paranoid features . . .
vulnerable to a paranoid psychotic decompensation,’’
the juror had been competent during the trial because
the ‘‘voices’’ he had heard had not influenced his verdict
or prevented him from making a rational judgment on
the merits of the case. (Internal quotation marks omit-
ted.) Id. The petitioner was not given an opportunity
to cross-examine the court-appointed psychiatrist or to
retain his own psychiatrist to testify. Id. On the basis
of the court-appointed psychiatrist’s report, the trial
court concluded that no additional inquiry into the
juror’s competency was necessary. Id. The petitioner’s
conviction was affirmed on appeal. Id. Thereafter, the
petitioner filed a petition for a writ of habeas corpus
in federal district court, which was denied. Id.
On appeal from the denial of his petition for a writ
of habeas corpus, the petitioner claimed that his right
to due process had been violated as a result of the trial
court’s failure to conduct a full and fair hearing to
evaluate the juror’s competency. Id. The Second Circuit
agreed with the petitioner that a full inquiry into the
juror’s competency was necessary. Id., 467–68. In reach-
ing that conclusion, the Second Circuit pronounced:
‘‘Due process requires that jurors be sane and compe-
tent during trial. . . . Once a preliminary showing of
incompetence or juror misconduct has been made there
is a corresponding right to an inquiry into the relevant
surrounding circumstances. . . . Where the allega-
tions involve considerations internal to the jury deliber-
ation process, such as juror insanity, this court has
required strong evidence that it is likely that the juror
suffered from such incompetence before ordering a
post-verdict inquiry. . . . This high threshold is
intended to avoid post-verdict harassment of jurors,
preserve the finality of judgments, discourage meritless
applications for post-verdict hearings, and reduce the
likelihood of and temptation for jury tampering.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) Id., 467. The Second Circuit determined
that there had been a ‘‘sufficient showing of incompe-
tence to justify, indeed to require, a further inquiry’’
into the juror’s competency, emphasizing in particular
the juror’s unsolicited statements that were ‘‘strongly
suggestive of incompetence during trial and delibera-
tions.’’11 Id. As relief, the Second Circuit reversed the
habeas court’s judgment and remanded the case with
instructions to grant the petition for a writ of habeas
corpus unless the state reopened the hearing and pro-
vided the petitioner with an opportunity to cross-exam-
ine the court-appointed psychiatrist or the petitioner
was granted a new trial. Id., 468.
We adopt the standard set forth in Sullivan, namely,
that there must be a preliminary showing of strong
evidence that a juror likely was incompetent during his
or her jury service before a trial court is required to
conduct a full postverdict inquiry into the juror’s compe-
tency. Id., 467. We are persuaded that such a standard
serves the interests identified in Sullivan, namely, the
avoidance of postverdict harassment of jurors, the pres-
ervation of the finality of judgments, the discourage-
ment of meritless applications for postverdict hearings,
and the reduction of the likelihood of and temptation
for jury tampering. Id.
In the present case, the defendants assert that there
was sufficient evidence in the record indicating that
R.L. likely was not competent to serve on the jury and,
therefore, the court should have held a postverdict evi-
dentiary hearing to inquire into R.L.’s competency. In
response, the plaintiff argues, inter alia, that there was
no evidence in the record suggesting that R.L. had been
incompetent during her jury service. We agree with
the defendants. One day after the jury had finished
deliberating and returned its verdict, R.L. spoke with
Judge Rush personally and informed him that she could
not recall the conclusion of the jury’s deliberations or
the return of the verdict. In addition, in her letter submit-
ted to the court, R.L. wrote that she was ‘‘surprise[d]’’
to learn that the jury had returned its verdict, she ‘‘defi-
nitely’’ had experienced a ‘‘memory gap’’ with respect
to the jury’s deliberations and the return of the verdict,
and she was concerned that she may have suffered
other mental lapses during the trial. She further wrote
that she planned to undergo a medical evaluation, which
had been recommended to her by a caregiver, to deter-
mine whether she suffered from ‘‘dementia/Alzheimer’s
[disease],’’ particularly given that her mother had been
diagnosed with early onset Alzheimer’s disease at
approximately her age. Although there had not been
any overt indication prior to the jury returning its ver-
dict that R.L. may have been suffering from a medical
condition that rendered her incompetent during her
jury service, we conclude that R.L.’s statements to
Judge Rush and her letter submitted to the court consti-
tute strong evidence that R.L. likely had been incompe-
tent during her jury service, such that a full inquiry by
the court into R.L.’s competency was necessary.12 Thus,
the court erred in failing to hold a postverdict eviden-
tiary hearing to determine whether R.L. had been com-
petent to serve as a juror during the trial.13
Having concluded that the trial court committed error
in failing to conduct a full postverdict inquiry into R.L.’s
competency during the trial, we reverse the portion of
the judgment denying the defendants’ motion seeking
a new trial or, alternatively, an evidentiary hearing
addressing R.L.’s competency and remand the case for
an evidentiary hearing to determine whether R.L. had
been competent to serve as a juror.14 Deciding the form
and scope of the hearing to be held on remand is within
the discretion of the trial court.15 See, e.g., Sullivan v.
Fogg, supra, 613 F.2d 468 (trial court has discretion
to determine form of postverdict evidentiary hearing
examining juror’s competency); see also, e.g., State v.
Biggs, 176 Conn. App. 687, 709, 171 A.3d 457 (trial courts
have wide discretion in conducting evidentiary hearings
to assess allegations of juror misconduct), cert. denied,
327 Conn. 975, 174 A.3d 193 (2017).16 After conducting
the evidentiary hearing and determining whether R.L.
was competent to serve on the jury, the trial court must
decide whether to grant the defendants’ motion seeking
a new trial.17
This conclusion effectively disposes of the threshold
issue before us. In addition to appealing from the trial
court’s denial of their motion seeking a new trial or,
alternatively, an evidentiary hearing addressing R.L.’s
competency, the defendants claim that the court erred
in denying (1) their motion to set aside the verdict and
for judgment notwithstanding the verdict, and (2) a
request submitted by them to charge the jury on mitiga-
tion of damages. In his cross appeal, the plaintiff claims
that the court erroneously denied (1) his motion for
punitive damages, (2) his motion seeking postjudgment
interest,18 and (3) a request submitted by him to charge
the jury on retaliation in violation of the Connecticut
Fair Employment Practices Act. Rather than addressing
these other claims at this time, we believe that the wiser
approach, under the unique circumstances of this case,
is to retain our jurisdiction over the remaining claims
on appeal and over the cross appeal pending the out-
come of the proceedings on remand, which may obviate
the need for appellate review of these other claims.
See, e.g., Tayco Corp. v. Planning & Zoning Commis-
sion, 294 Conn. 673, 688, 986 A.2d 290 (2010) (reversing
judgment denying motion to dismiss and remanding
case for further proceedings while retaining jurisdiction
over appeal to review, as necessary, other claims raised
on appeal); Higgins v. Karp, 239 Conn. 802, 811, 687
A.2d 539 (1997) (reversing judgments and vacating deni-
als of motions to set aside defaults, and remanding case
for redetermination of whether good cause existed to
set aside defaults while retaining jurisdiction over
appeal to review other claims raised on appeal in event
that trial court did not find good cause to set aside
defaults); Gilbert v. Beaver Dam Assn. of Stratford Inc.,
85 Conn. App. 663, 675, 680–81, 858 A.2d 860 (2004)
(affirming in part and reversing in part judgment and
remanding case for additional proceedings on plaintiff’s
claims under Common Interest Ownership Act, General
Statutes § 47-200 et seq., while retaining jurisdiction
over appeal to consider plaintiff’s claim regarding valid-
ity of association’s bylaws pending outcome of proceed-
ings on remand), cert. denied, 272 Conn. 912, 866 A.2d
1283 (2005); Colonial Penn Ins. Co. v. Patriot General
Ins. Co., 45 Conn. App. 630, 633, 697 A.2d 694 (1997)
(ordering limited remand for trial court to assure com-
pliance with applicable notice requirement while
retaining jurisdiction over case); O’Bymachow v. O’By-
machow, 10 Conn. App. 76, 78–79, 521 A.2d 599 (1987)
(setting aside judgment declining to consider motion
to open and remanding case to trial court to adjudicate
motion to open while retaining jurisdiction over appeal
from denial of motion for modification pending resolu-
tion of motion to open); see also General Statutes § 51-
197a (b) (providing that ‘‘[t]he Appellate Court may
issue all writs necessary or appropriate in aid of its
jurisdiction and agreeable to the usages and principles
of law’’).
The judgment is reversed only as to the denial of the
defendants’ motion seeking a new trial or, alternatively,
an evidentiary hearing and the case is remanded for
further proceedings consistent with this opinion. We
retain jurisdiction over the case in order to resolve, as
necessary, the remaining claims presented in the appeal
and the cross appeal pending the outcome of the pro-
ceedings on remand.
In this opinion the other judges concurred.
1
To protect the privacy of the juror discussed in this opinion, we shall
refer to her only by her initials. See Hurley v. Heart Physicians, P.C., 298
Conn. 371, 388 n.14, 3 A.3d 892 (2010).
2
The jury was charged on August 11, 2016.
3
On the basis of its answers to the interrogatories, the jury found in
favor of the plaintiff on the following counts: promissory estoppel; negligent
misrepresentation; fraudulent misrepresentation; and breach of the covenant
of good faith and fair dealing.
4
After the jury twice had confirmed its verdict, the trial court submitted
two additional interrogatories to the jury, namely: (1) whether the plaintiff
was entitled to recover $225,000 in damages from the defendants collectively;
or (2) whether the plaintiff was entitled to recover $225,000 in damages
from each defendant, for a total amount of $450,000. The jury answered
‘‘yes’’ to the first interrogatory and ‘‘no’’ to the second interrogatory. On the
record, the court read the jury’s answers to those interrogatories and asked
the jury to confirm its answers. All of the jurors, including R.L., replied ‘‘yes.’’
5
In a memorandum of decision disposing of, inter alia, several postverdict
motions, the trial court stated that the verdict had been accepted on ‘‘Friday
August 11, 2016’’ and that R.L. had gone to the courthouse ‘‘[t]he following
Tuesday . . . .’’ On July 10, 2017, the parties filed a joint motion to correct
the memorandum of decision, to reflect, inter alia, that R.L.’s postverdict
appearance at the courthouse occurred on Friday, August 12, 2016, and that
the parties’ attorneys had attended a status conference with the court on
Tuesday, August 16, 2016, to discuss the events concerning R.L. The court
neither ruled on the joint motion to correct nor amended the memorandum
of decision at any time thereafter.
We take judicial notice that August 11, 2016, was a Thursday and August
12, 2016, was a Friday. See Federal Deposit Ins. Corp. v. Napert-Boyer
Partnership, 40 Conn. App. 434, 442, 671 A.2d 1303 (1996) (‘‘[f]acts which
are of common knowledge, that is, facts so well known that evidence to
prove them is unnecessary are proper subjects of judicial notice’’ [internal
quotation marks omitted]); see also Old Lyme Associates Corp. v. Zoning
Commission, 31 Conn. Supp. 440, 441, 333 A.2d 406 (1974) (‘‘[c]ourts may
take cognizance of the days of the week with the days of the month’’). In
their joint motion to correct, the parties represented that R.L. had arrived
at the courthouse on Friday, August 12, 2016. Further, in a letter dated
August 12, 2016, which R.L. had submitted to the court, R.L. wrote that she
had arrived at the courthouse ‘‘today . . . .’’ In addition, during argument
on the parties’ respective postverdict motions, Judge Rush, in reciting the
events regarding R.L., stated that he had informed R.L. that the jury’s verdict
had been returned and accepted ‘‘the day before . . . .’’ The verdict was
returned and accepted on Thursday, August 11, 2016. In light of the above,
we conclude that the court mistakenly determined that R.L. had gone to
the courthouse on August 16, 2016, the Tuesday following the return and
acceptance of the verdict, rather than on Friday, August 12, 2016.
6
R.L. addressed the letter to the Honorable Barbara N. Bellis, the presiding
civil judge for the judicial district of Fairfield.
7
The trial court granted the parties an extension of time to file postverdict
motions through September 16, 2016.
8
On August 23, 2016, the defendants filed a caseflow request asking the
trial court to schedule an evidentiary hearing to determine whether R.L.
had been competent to serve on the jury. The plaintiff opposed that request.
9
In its memorandum of decision, the trial court also denied the following:
a motion to set aside the verdict and for judgment notwithstanding the
verdict filed by the defendants; a motion for punitive damages filed by the
plaintiff; a motion for prejudgment and postjudgment interest filed by the
plaintiff; and a request to file an amended complaint filed by the plaintiff.
10
Although the trial court stated that it was denying ‘‘the request of the
defendants to hold a hearing and the motion to set aside the verdict on the
issues raised [concerning R.L.],’’ we construe the court’s ruling as a denial
of the defendants’ motion seeking a new trial or, alternatively, an evidentiary
hearing to address R.L.’s competency. The court subsequently denied the
defendants’ separate motion to set aside the verdict and for judgment not-
withstanding the verdict.
11
In Sullivan, the Second Circuit distinguished the case before it from
United States v. Dioguardi, 492 F.2d 70 (2d Cir.), cert. denied, 419 U.S. 873,
95 S. Ct. 134, 42 L. Ed. 2d 112 (1974), in which it had addressed a claim
regarding a juror’s competency. In Dioguardi, approximately ten days fol-
lowing a jury trial in which two codefendants had been found guilty of
several criminal charges, one of the jurors mailed an unsolicited letter to one
of the defendants in which the juror wrote, inter alia, that her ‘‘clairvoyant’’
powers enabled her to see that the defendant was a good person, but that
she believed he was guilty and should repent. Id., 72, 75. Several psychiatrists
contacted by defense counsel opined, on the basis of the juror’s letter,
that the juror appeared to suffer from various mental illnesses, but that
a psychiatric evaluation was necessary to develop a clear diagnosis and
determine whether the juror’s mental illnesses had prevented her from
comprehending the trial proceedings. Id., 76. The codefendants moved for
a new trial or, alternatively, an evidentiary hearing to examine the juror’s
competency. Id., 78. The trial court denied the motion. Id. On appeal, the
Second Circuit upheld the denial of the motion, concluding that the juror’s
letter, accompanied by the ‘‘horseback uninformed opinions’’ of the psychia-
trists, fell ‘‘considerably short of justifying any further inquiry’’ into the
juror’s competency. Id., 78–79, 81.
In Sullivan, the Second Circuit determined that Dioguardi was distin-
guishable, stating: ‘‘In Dioguardi, unlike this case, there was no evidence
that the alleged feelings of clairvoyance and other psychic phenomena exhib-
ited by the juror after trial were present during trial. In addition, the
evidence in [Dioguardi] consisted of a letter written by the juror to the
defendant. Here the juror’s own statements indicated that the delusions
occurred during trial, and there was ample justification for ordering a further
inquiry.’’ (Emphasis added.) Sullivan v. Fogg, supra, 613 F.2d 467. The
foregoing indicates that the Second Circuit, in concluding that the high
threshold necessitating a full evidentiary hearing had been satisfied in Sulli-
van, found particularly important that (1) the juror made personal, unsolic-
ited statements suggesting that he had suffered from a mental illness, and
(2) the evidence showed that the juror’s alleged mental illness likely had
been present during the trial.
12
We consider the unique circumstances of this case to be more analogous
to Sullivan than to Dioguardi. In her unsolicited statements made personally
to Judge Rush and/or in her letter submitted to the court, R.L. expressed:
she was ‘‘surprise[d]’’ to learn that the jury had returned its verdict, as she
had no recollection of the jury concluding its deliberations or returning its
verdict; although she did not have a prior history of ‘‘memory gaps,’’ she
‘‘definitely’’ had experienced such a memory lapse as to the jury’s delibera-
tions and the return of its verdict and she feared that she potentially had
suffered ‘‘other gaps’’ during the trial; and she was sixty-four years old and
intended to undergo a medical evaluation to determine whether she had
‘‘dementia/Alzheimer’s [disease],’’ per a caretaker’s recommendation
because her mother had been diagnosed with early onset Alzheimer’s disease
at sixty years of age. Here, as in Sullivan and unlike Dioguardi, the evidence
in the record indicates that it is likely that R.L. suffered from a medical
condition that rendered her incompetent during the trial, and the evidence
was not limited to the letter submitted by R.L. to the trial court, but also
consisted of unsolicited statements made personally by R.L. to Judge Rush.
See footnote 11 of this opinion.
13
The plaintiff argues that, even assuming that R.L. had been incompetent
to serve as a juror, there is no indication that the defendants were prejudiced
by R.L.’s incompetency. We disagree. Due process requires that jurors be
sane and competent during trial. Sullivan v. Fogg, supra, 613 F.2d 467. A
juror deemed to be incompetent cannot, as a matter of law, be considered
to be a fair and impartial juror.
14
We note that we consider our conclusion to be consistent with the
United States Supreme Court’s decision in Tanner v. United States, 483
U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987). In Tanner, the court held
that Federal Rule of Evidence § 606 (b) (Rev. 1974), which prohibited a
juror from testifying ‘‘as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon his or
any other juror’s mind or emotions as influencing him to assent to or dissent
from the verdict or indictment or concerning his mental processes in connec-
tion therewith,’’ subject to exceptions pertaining to ‘‘extraneous prejudicial
information’’ or ‘‘outside influence[s],’’ precluded jurors from being called
as witnesses at a postverdict evidentiary hearing to testify about misconduct
in the form of drug and alcohol use by certain jurors during trial for the
purpose of impeaching the jury’s verdict because juror intoxication did not
constitute an ‘‘outside influence.’’ (Internal quotation marks omitted.) Id.,
121–25. The court noted that § 606 (b) was ‘‘grounded in the common-
law rule against admission of jury testimony to impeach a verdict and the
exception for juror testimony relating to extraneous influences.’’ Id., 121.
The court also recognized that there was another common-law exception
allowing a postverdict inquiry into a juror’s competency in cases of ‘‘substan-
tial if not wholly conclusive evidence of incompetency . . . .’’ (Internal
quotation marks omitted.) Id., 125. Without deciding whether § 606 (b)
retained that common-law exception, the court determined that the evidence
in the record supporting the allegation of juror misconduct, which included
a juror’s affidavit in which the juror attested that several jurors consumed
alcohol and fell asleep during the trial, did ‘‘not suffice to bring this case
under the common-law exception allowing post-verdict inquiry when an
extremely strong showing of incompetency has been made.’’ Id., 126.
15
The plaintiff argues that an evidentiary hearing addressing R.L.’s compe-
tency necessarily would require an inquiry into R.L.’s mental processes
during the jury’s deliberations in violation of Practice Book § 16-34. We
disagree. Section 16-34 provides: ‘‘Upon 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. Subject
to these limitations, a juror’s testimony or affidavit shall be received when
it concerns any misconduct which by law permits a jury to be impeached.’’
The proscription contained in § 16-34 is not implicated here. An inquiry into
R.L.’s competency will not require the parties or the court to delve into the
substance of the jury’s deliberations or R.L.’s ‘‘mental processes by which
the verdict was determined’’; rather, the relevant inquiry will be whether
R.L. suffered from a medical condition that would have prevented her from
fulfilling her duties as a competent juror.
16
We are aware that a considerable amount of time has passed since the
verdict was returned and accepted in this case. We expect that, in exercising
its discretion on remand, the trial court will consider the passage of time.
17
Thereupon, pursuant to Practice Book § 61-9, the parties may file an
amended appeal and/or an amended cross appeal, as the case may be, for
the narrow purpose of seeking appellate review of any subsequent rulings
made by the trial court on remand.
In addition, to avoid triggering a dispute over the application of General
Statutes § 51-183c, we make clear that we perceive no bar to Judge Rush,
if available, conducting the proceedings on remand as ordered herein. See
State v. Santiago, 245 Conn. 301, 340–41 n.25, 715 A.2d 1 (1998) (following
reversal of judgment with respect to trial court’s decision not to conduct
more extensive inquiry into postverdict allegation of juror misconduct, differ-
ent judge is not required to preside over proceedings on remand to make
such inquiry); see also Barlow v. Commissioner of Correction, 166 Conn.
App. 408, 426–27 n.10, 142 A.3d 290 (2016) (‘‘We observe that the court [in
Santiago] did not remand the case for a new trial on the merits of the case,
but for further proceedings related to an allegation of juror misconduct. As
opposed to a new trial, such a proceeding is more like a sentencing hearing,
a hearing related to pretrial matters, or a short calendar hearing—proceed-
ings to which § 51-183c does not apply. . . . In light of the particular circum-
stances of that case and the issues that would come before the court on
remand, it determined prospectively that the trial judge’s participation in
the case on remand would not give rise to an appearance of impartiality or
bias. Its determination in this regard was dispositive of the issue of the
propriety of the trial court’s participation in the case on remand.’’ [Citations
omitted.]), appeal dismissed, 328 Conn. 610, 182 A.3d 78 (2018).
18
The plaintiff also moved for an award of prejudgment interest, which
the trial court denied. During oral argument before this court, the plaintiff
conceded that he is not pursuing his claim on appeal regarding prejudg-
ment interest.