*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
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 (§ 46a60 et seq.) in connection with the termination of the plaintiff’s employment. 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 challenge 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 proceedings.

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 resolution 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 previously 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: violation of the Connecticut Fair Employment Practices Act,

General Statutes § 46a-60 et seq.; promissory estoppel;

negligent misrepresentation; fraudulent misrepresentation; 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 allegations 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 deliberations,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 verdict, 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 recitation, 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 verdict 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 remember 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 provided 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 remember 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 experienced such a memory lapse with regard to the jury’s

deliberations and the return of its verdict; she was concerned 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 disease 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 evidentiary hearing to evaluate R.L.’s competency.8 The plaintiff 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 memorandum 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 deliberations, 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 acquiesce 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 otherwise 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 discretion of the trial court.’’ (Internal quotation marks omitted.) 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 conduct an evidentiary hearing under the abuse of discretion 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 quotation marks omitted.) Id. In the present case, the threshold 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 competency. 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 experienced delusions or paranoid sensations during the trial

and that he had heard ‘‘vibrations’’ throughout the trial

that seemed amplified in the jury room. (Internal quotation 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 further 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 independent 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 omitted.) 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 reaching that conclusion, the Second Circuit pronounced:

‘‘Due process requires that jurors be sane and competent 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 allegations involve considerations internal to the jury deliberation 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.’’ (Citations omitted; footnote omitted; internal quotation

marks omitted.) Id., 467. The Second Circuit determined

that there had been a ‘‘sufficient showing of incompetence 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 deliberations.’’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 provided the petitioner with an opportunity to cross-examine 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 competency. Id., 467. We are persuaded that such a standard

serves the interests identified in Sullivan, namely, 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. 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 evidentiary 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 submitted to the court, R.L. wrote that she was ‘‘surprise[d]’’

to learn that the jury had returned its verdict, she ‘‘definitely’’ 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 determine 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 verdict 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 constitute strong evidence that R.L. likely had been incompetent 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 evidentiary hearing to determine whether R.L. had been competent 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 mitigation 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 outcome 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 Commission, 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 denials 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 validity of association’s bylaws pending outcome of proceedings 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 compliance with applicable notice requirement while

retaining jurisdiction over case); O’Bymachow v. O’Bymachow, 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 resolution 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 proceedings 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 notwithstanding 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 following 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 psychiatrists, 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 distinguishable, stating: ‘‘In Dioguardi, unlike this case, there was no evidence

that the alleged feelings of clairvoyance and other psychic phenomena exhibited 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 Sullivan, found particularly important that (1) the juror made personal, unsolicited 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 deliberations 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 connection 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 commonlaw 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 ‘‘substantial 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 competency 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, different 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—proceedings to which § 51-183c does not apply. . . . In light of the particular circumstances 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 prejudgment interest.