Former appellate judge Gordon Maag has discovered that a Texas lawyer defending E.I. Du Pont de Nemours in a Madison County benzene lawsuit failed to report that Texas regulators sanctioned him in 1995.
Maag has asked Circuit Judge Dennis Ruth to sanction Andrew Schirrmeister, claiming he submitted a faulty application to work on the case without an Illinois license.
"That man has run around the country weaving the same bunch of lies and deception," Maag said at a hearing on May 7.
Ruth asked for more information and advised Du Pont lawyers that his decision on sanctions will depend on their response to Maag's discovery.
Maag represents Debra Klingeman, administrator of the estate of the late Kent Herzog, in a claim that Du Pont and other companies negligently exposed him to benzene.
Maag's son, Thomas Maag, filed the complaint in 2007.
Gordon Maag told Ruth he found Schirrmeister's disciplinary record at 3:30 a.m. on April 7, by googling him.
At the hearing, Ruth swore Schirrmeister as a witness and asked about his firm.
Schirrmeister said it employed 14 lawyers, it was one of about 40 firms representing Du Pont, and Du Pont represented more than half of its business.
He said the firm represents Du Pont in about 125 cases around the nation, with 15 cases in Illinois.
Ruth asked if he entered appearances in all 15.
"No, only this," Schirrmeister said. "These cases have just not been active."
Ruth asked if he made any counsel at Du Pont aware of the sanctions in Texas.
"I don't believe so, your honor," Schirrmeister said.
He said a paralegal prepared his application and he didn't examine it.
"What happened in this case was, I failed to carefully read the application," Schirrmeister said.
He apologized to the court and Maag.
"When I received Mr. Maag's motion and read it, I saw that I clearly should have disclosed the sanction in 1995," Schirrmeister said.
Ruth finished his questions and Maag pounced, claiming he found seven applications around the country that didn't disclose the sanctions.
"The Texas Supreme Court, the highest judicial body in the state
with the final say over your license as an attorney, affirmed those sanctions and said that he threatened the integrity of the judicial system," Maag said.
"He thinks that's not sanctions by a state? Then who is it by, the Rotary Club?" Maag said.
Ruth then swore Jim Ezer of Schirrmeister's firm, who said he became aware of the sanctions through an Arkansas case in 2002.
Next, Ruth called local counsel Kenneth Nussbaumer to testify.
For Nussbaumer and other Illinois lawyers, Ruth did not administer oaths.
Ruth asked Nussbaumer if he knew of the sanctions, and Nussbaumer said the first he heard of it was Maag's motion.
Brian Lewis, a Chicago lawyer responsible for all Du Pont benzene cases in Illinois, and Silvio Decarli, chief litigation counsel at Du Pont, told Ruth they first became aware after receiving the motion.
Ruth asked Decarli if he agreed that the Madison County application required Schirrmeister to divulge the sanctions, and Decarli said he did.
Ruth asked if he had a concern on behalf of Du Pont.
Decarli said, "If it was done willfully in an effort to conceal, absolutely, but if it was done in error, in inadvertence, that's a different situation."
Ruth said Maag wanted Du Pont to present copies of all Schirrmeister's applications for permission to practice in other states.
John Papa, representing Schirrmeister, asked Ruth to confine the inquiry to the merits of the case.
Maag said, "Mr. Schirrmeister said, I just made a mistake. Gee whiz I'm sorry.
"He ought to say gee whiz I'm sorry most of the time, because every one we have found shows that there is a standard operating procedure and that is, deny it.
"They are artfully worded untruths which are recited repeatedly as a form.
"They had it on a word processor and they just hit play and it printed out and said I'm a good boy."
Ruth said, "The court has a problem with attorneys just coming in and saying I didn't read the law and I didn't pay attention to the facts.
"We are lawyers and we are supposed to read the law before you go filing documents, not after you get in trouble or caught, whatever you want to call it," Ruth said.
He asked Schirrmeister if he was in the process of correcting mistakes in other states.
Schirrmeister said he would file an affidavit in North Carolina the next Monday.
Maag associate Karl Novak then began to cross examine Decarli, asking if he would consider other errors as negligence or inadvertence.
Decarli said, "People can make the same mistake more than once and it's still an inadvertent error."
Novak said, "Where do you draw the line, sir? Where you are going to start making some changes and making some difference as it relates to the people that represent your company?"
Decarli said, "We will see what the facts develop."
Novak asked if he was aware of two National Law Journal articles about the sanctions.
Decarli said, "I was not so aware."
Novak said, "Have you ever used Google?"
Decarli said yes.
Novak said, "You have not bothered to look up Mr. Schirrmeister from Google?"
Decarli said, "No, I have not googled Mr. Schirrmeister's name."
Ruth directed Decarli to let him know Du Pont's position regarding Schirrmeister's continued representation.
"I am going to give Du Pont that opportunity to look at this after a summary of all the evidence and reevaluate their position before the court has to rule on the matter," Ruth said.
Decarli said, "I will work with our counsel to do what the court directs."