¶1dissenting. I cannot agree with the conclusion by the majority that “a substantive discussion of the evidence or issues in the case must have been conducted by four jurors in the absence of two jurors.” My review of the record leads me to the conclusion that the plaintiff has not sustained the burden that the law places upon her to demonstrate jury misconduct resulting in the probability of prejudice.
¶2Every litigant has the right to have issues of fact tried by a jury. The named defendant, a physician, has endured a trial in which he was charged with malpractice and at the conclusion of which a jury decided in his favor. The trial judge considered the arguments that are now found to be persuasive by the majority and denied a motion for mistrial, a motion to set aside the verdict and a motion in arrest of judgment. We should not lightly reverse his judgment.
¶3The majority opinion accurately sets out the law to be applied to this appeal. Where we part company is in some of the facts inferred and conclusions drawn by the majority, which differ from the facts found and conclusions drawn by the trial judge, and which rest principally upon no firmer ground than speculation.
¶4*106This was understandably a hotly contested case. The court informed the jury at the end of the charge that it could have any testimony played back, but urged it to be as specific as possible in order to assist in the determination of that with which it was really concerned and to avoid playing back more than was necessary.
¶5On December 23, 1987, the second day of deliberations, the jury submitted two questions to the court. One question asked for the named defendant’s testimony during cross-examination by attorney Richard Fuchs regarding the monitoring of the patient’s blood pressure and pulse during the procedure. The court informed the jury that it would take about one and one-half hours to provide that. The other question asked whether the jury had to reach unanimous agreement on each paragraph of the complaint, as opposed to some disagreement on one or more paragraphs or subitems while still coming to a unanimous verdict. The court said that, in consultation with counsel, it had been decided to have the jury hear the defendant’s testimony beginning at 2 p.m., rather than running into the lunch hour, and that on the following morning he would answer the questions posed with an additional charge.
¶6At 2 p.m., the sheriff handed the trial judge another note and said that the foreman had tried to give it to him twice before the entire jury had reassembled. The trial judge expressed concern about whether the jurors had talked about the case outside the jury room among themselves. The jurors were called into the courtroom, and the trial judge said that he was not sure how clear he had made it to them that their deliberations were to go forward only in the jury room, and that it was obvious that the note had been composed after they had been excused until 2 p.m.
¶7*107The note said: “We amend our previous request regarding Dr. Delibero’s testimony to limit the testimony to that presented when Mr. Fuchs questioned on the blackboard the time discrepancy regarding monitoring of the patient’s blood pressure. We wish to hear the doctor’s answer to this only. Also, we wish to remain in deliberation after this testimony today until 5:00 p.m.”
¶8After reading the note, the court remarked that the request suggested that the members of the jury were feeling some time constraints. The jury was informed that the question concerning unanimity could not be answered that day and that no further deliberations would be permitted until that question had been answered. The court announced its intention to excuse the jury until Monday, December 28, 1987, at which time it would hear the named defendant’s testimony and the answer to its question.
¶9The foreman of the jury asked permission to speak and said that most of the members of the jury understood that they had to deliberate and render a unanimous decision on each paragraph and subitem and just wanted confirmation of that charge. He said that it was just a simple yes or no answer. The court replied that it was not a simple yes or no answer and involved more than that.
¶10The court again reminded the jury that there were to be no deliberations outside the jury room, and said that unless the jurors could tell him that there were no discussions outside the jury room that led to the note, it would be assumed that there were such discussions.
¶11The foreman of the jury responded that four of the jurors had had lunch together and discussed “this” amongst themselves. He said that before giving the note to the bailiff it was given to a fifth juror and that *108the sixth juror was informed of it when he arrived and that he agreed to it. The foreman identified one of the jurors who had not been present at lunch. The other who had not been present identified himself. None of the jurors signified any disagreement with what the foreman had said.
¶12When the court invited comment from counsel, the plaintiffs counsel objected to the continuance until Monday because he thought the delay too great. Defense counsel opined that the four jurors had discussed the case at lunch, despite the court’s frequent caution not to do so, and moved for mistrial. The plaintiff’s counsel, after reflection, joined in the motion.
¶13The court then reconvened the jury and asked the foreman specifically whether, when the four jurors had lunch together, there was any discussion of the case, other than whether or not they wanted to have all the testimony read. The following then occurred:
“James Botten: That was the only discussion we—
“The Court: — What about the determination expressed that you would like to continue until 5:00 p.m.?
“James Botten: That was discussed partially during that period also.
“The Court: Anything discussed about the evidence itself or anything like that?
“James Botten: No, we did not discuss any — any of the evidence. Just the fact that we wanted to just hear that one portion of the testimony and that we wanted to continue because we thought it would be shorter testimony and we would therefore just like to continue until the end of the day.”
¶14Thereafter, the court expressed itself as satisfied that “[t]he discussion between those four jurors was limited *109largely, if not exclusively, to procedural problems, nothing substantive.” It thereupon denied the motion for mistrial.
¶15During the argument on the motion for mistrial, the court observed that he customarily emphasizes to jurors that they are not to discuss the case except among themselves and then only in the jury room while considering their verdict. Although that instruction was not given when the jury was excused for lunch on the day of the episode complained of, defense counsel remarked that it had been given on frequent occasions during the trial, and the plaintiffs counsel said nothing to dispute that. Absent a fair indication to the contrary, we presume that the jury followed the court’s instruction. State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985).
¶16In this case, the foreman of the jury said specifically that the four jurors had not discussed any of the evidence. I am not willing to conclude, as does the majority, that the foreman did not understand that “evidence” includes “testimony.” In the first place, the charge made it clear that “evidence” included “testimony.” In the second place, the colloquy between the court and the foreman quoted earlier followed the court’s inquiry as to whether there was any discussion of the case. Clearly, and as the plaintiff’s counsel argued at the time, the note discussed by the four jurors was a clarification of what had been meant by the first request. The first note requested the named defendant’s testimony during cross-examination regarding monitoring of the patient’s blood pressure, and this was simply amended to limit the testimony to that presented when Fuchs questioned on the blackboard the time discrepancy regarding monitoring of the patient’s blood pressure. The fact that the foreman sought to deliver the note even before all of the jurors had reassembled renders *110it more logical to assume that it was this that was actually meant by the first request than to assume that the first note embodied the concerns of some or all of the jurors.
¶17It is not really necessary to assume anything, however, because all of the jurors were present when the note was delivered, all were present in court when the note was read, and none expressed any disagreement with it. The request to continue deliberations that day was not in any sense an indication that the unanimity question was no longer of importance, nor did it suggest that the question no longer needed to be resolved by the court. It said only that the jury wanted to have played back less of the testimony than the court intended to have played back, and suggested that the jury could use the time remaining that day to deliberate on the questions raised by what the jurors heard in the testimony. In fact, the court had all of the cross-examination of the named defendant regarding monitoring of the blood pressure played back, exactly as requested originally. The amended request was an attempt at the specificity requested by the court during the charge. It did not address the unanimity concern at all, and we should not conclude that it was intended to withdraw that request. In any case, the court gave a supplemental charge on unanimity.
¶18A ruling denying a motion for mistrial should not be overturned unless there has been a clear abuse of discretion resulting in manifest injury to a litigant. Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980). Every instance of jury misconduct does not require a new trial. Williams v. Salamone, 192 Conn. 116, 122, 470 A.2d 694 (1984). Absent misconduct brought about by the prevailing party, the burden is on the complainant to show prejudice. Id., 121. Moreover, as the majority opinion observes, “[t]he question *111is whether the misconduct is of such a nature so as to make it probable that the misconduct resulted in prejudice and an unfair trial.”
¶19The plaintiff has never attempted to show what specific probable prejudice she claims resulted from the amended request for testimony. Indeed, it is difficult to see how she could do so. She simply offers the conclusion that under the circumstances there is a probability of prejudice. The majority opinion acknowledges the need “to measure the degree to which the misconduct affected the impartiality of the jury,” and the fact that the burden is on the party claiming harm to demonstrate the probability that juror misconduct resulted in the denial of a fair trial. It assumes that the four jurors discussed the evidence while they were apart from the other two jurors, and then assumes that this assumed discussion had some impact on the verdict. It concludes that the plaintiff was deprived of her right to a unanimous verdict. In my judgment, this conclusion is not supported by, and is at odds with, the facts.
¶20All of the jurors took part in the deliberations and eventually arrived at a unanimous verdict. I cannot conclude from my review of the record and briefs that there was juror misconduct resulting in probable prejudice to the plaintiff.