A former flight attendant who was sexually assaulted during an overseas business trip for American Airlines in 2018 failed Saturday to win the removal of the judge presiding over her $26 million lawsuit – or what’s left of it.
Lawyers for the flight attendant, Kimberly Goesling, sought the forced recusal of Tarrant County District Judge Kimberly Fitzpatrick from further proceedings in the case because of what they called “significant irregularities” in her handling of the charge to the jury ― which found in American’s favor May 11.
David Peeples, a senior judge from San Antonio, denied the recusal motion Saturday. His two-paragraph written order offered no explanation for his decision. Peeples was brought to Fort Worth on special assignment to hear the matter after Fitzpatrick refused to recuse herself.
Judge Fitzpatrick now has the task of ruling whether an “improper, harmful” instruction made to the jury in her court warrants a new trial — the very reason the plaintiff’s lawyers sought to remove her.
In a hearing Friday, Fitzpatrick testified Friday that she doesn’t know how the wrong jury charge got to jurors in the case on May 9.
Nor, the judge testified, does she know what happened to the correct jury form after she read it in open court, gave copies to the 12 jurors and the lawyers for both sides, signed the original and instructed a staff member to take it to the jury room when the jurors began their deliberations so they could complete the verdict form if and when they reached their decision.
Following three days of deliberation, the jury on May 11 cleared American of responsibility for a British celebrity chef’s sexual assault of Goesling in her hotel room during a 2018 business trip to Germany. The jury agreed that Mark Sargeant, a London chef working with American to develop in-flight menus, assaulted Goesling. But it rejected Goesling’s claims for damages from the airline. She contended that Brett Hooyerink, at the time a vice principal with American, plied Sergeant with alcohol and encouraged the chef’s physical advances against her.
After discovering the “improper, harmful” instruction, Goesling’s lawyers moved for a new trial. The next day, they moved to have Fitzpatrick recused, arguing in essence that the judge who bungled the jury charge this time around shouldn’t be the one who gets to decide if Goesling deserves a new trial, based on that very bungling.
Goesling’s legal team is led by J. Robert Miller Jr. of Miller Bryant in Dallas.
Lawyers for American acknowledged that Fitzpatrick gave the jury the wrong version of the jury charge to sign – one that included an instruction the judge previously agreed to delete – but not until after the jurors had already reached their decision, based on the proper set of jury instructions, which they also had.
“We are here about a typo,” said Shauna J. Wright of Kelly Hart & Hallman in Fort Worth, American’s lead attorney in the case.
She said Goesling’s lawyers produced no evidence that the mix-up showed Fitzpatrick’s “impartiality might be reasonably questioned” or that she “has a personal bias or prejudice concerning the subject matter or a party,” the two grounds for recusal cited in Goesling’s motion.
Peeples stressed to both sides in Friday’s hearing that questions about the effects of Fitzpatricks handling of the jury charge are for another day — the day the new trial motion is argued. His role, he said, was only to decide if the high standard for recusal was met by Goesling’s lawyers: Did they show that Fitzpatrick’s impartiality could be reasonably questioned? Or that she was biased against either side?He apparently concluded not. By his ruling, everything else is up to Judge Fitzpatrick.
The jury instruction at issue involved the question of “assisting and participating” liability on American’s part.
It read: “You are instructed that, even if Brett Hooyerink supplied Mark Sargeant with the means of committing a sexual assault, Brett Hooyerink is not liable if he has no reason to suppose that a sexual assault will be committed.”
At a conference with the judge May 9, Goesling’s lawyers objected to that instruction, and she agreed it should come out. But it somehow remained in one version of the jury charge, the one the jurors ultimately signed as the official record of their verdict.
When she agreed to revise the jury charge May 9, the judge testified, she had already signed the earlier version, the one that included the rejected instruction regarding Hooyerink.
At that point, she said, the outdated, 20-page document “was supposed to be a throwaway,” but instead somehow ended up in her files. She testified that she didn’t know how that happened.
After agreeing to excise the challenged instruction, she said, she had a new, correct version of the charge printed. That was the version she read in court, gave to the jurors and lawyers, and signed as the new official charge. That was the original that was supposed to go into the jury room. Fitzpatrick testified that she doesn’t know why it wasn’t, or what became of it. “We don’t know where it is. It may have gotten shredded,” she said.
When the jurors reached their verdict May 11, they recorded it on one of the photocopies of the revised charge they’d been given. When the presiding juror summoned bailiff Brian Downey to the jury room and handed him the signed photocopy, he said they had to record their verdict on an original, not a copy, an edict he testified he later confirmed with the judge.
When he told Fitzpatrick what had happened, he testified, she retrieved what she thought was the proper original – from where, he said, he doesn’t know – handed it to him and told him to instruct the jurors to copy their findings and signatures from the photocopy to the “original.”
But the “original” she pulled turned out to be the earlier, outdated charge, the one she said should have been discarded.
After discovering that the “improper, harmful” instruction was in the charge the jurors signed, Goesling’s lawyers on May 17 moved for a new trial, citing the blunders made in Fitzpatrick’s court. That motion is one of few post-verdict matters yet to be decided at trial.
With Saturday’s ruling, as noted, Fitzpatrick will be the judge who decides it.