Judge admonishes BigLaw partner because he 'apparently felt entitled' to make misleading statements about expert's travel
A federal judge in Las Vegas has admonished a partner from Pillsbury Winthrop Shaw Pittman for making misleading statements about the availability of an expert witness, attributing his conduct to apparent “entitlement.”
In a Sept. 3 order, U.S. District Judge Cristina D. Silva of the District of Nevada admonished Pillsbury partner Mark Krotoski for falsely asserting that a proposed expert witness in an antitrust case was unavailable on a Saturday because she was “traveling.”
Krotoski wanted to admit the expert’s testimony in his representation of a home health care executive accused of conspiring to fix the wages of Las Vegas nurses. The defendant was convicted in April after a three-week trial, Law360 reports in its coverage of Silva’s order.
Silva said Krotoski made the “traveling” claim Saturday, April 5, in an email to lawyers representing the government and continued his misrepresentation in court during a hearing in Las Vegas on Monday, April 7.
The expert told the court during the Monday hearing that she had indeed traveled from Las Vegas to California on the evening of Friday, April 4, but she spent Saturday running errands and getting a mammogram, Silva said in a June 17 show-cause order.
“Stated otherwise,” Silva wrote, “Krotoski’s representation that the witness was ‘traveling’ was a lie.”
Silva, an appointee of former President Joe Biden, said she excluded the expert as a witness because of the misrepresentation and because of untimely disclosures by the expert.
Silva’s show-cause order said Krotoski’s lie was “exacerbated by other unprofessional trial conduct from Krotoski, such as delaying the proceedings by lackadaisically retrieving witnesses and not providing direct answers to direct questions in the days leading up to his misrepresentation” regarding the expert witness.
Silva also said Krotoski tried to “muddy the proverbial waters” when he cited Silva’s exclusion of testimony by the expert witness as a reason to grant a new trial without mentioning the misrepresentation.
Silva noted that Krotoski has asserted that he was “saddened and shocked” by her order to show cause. In his declaration responding to the order, “Krotoski writes that he has profound respect for the judicial system and the rule of law and details his prior professional experiences, which includes two clerkships, a decorated career with the Department of Justice, and other public service roles,” Silva said.
“The court has spent considerable time contemplating why someone with as much experience as detailed in Krotoski’s 23-page response would engage in the unprofessionalism this court has observed,” Silva wrote. “Indeed, the details of his experience are wholly at odds with his actions during the trial, which candidly saddened and shocked the court, as well. Unfortunately, the court has come to the only logical explanation for his conduct: entitlement.”
“The record here reveals Mr. Krotoski believed he was entitled” to misrepresent the expert’s unavailability in an email to the government, and “he apparently felt entitled” to maintain that representation in open court, Silva stated.
In his response to the order to show cause, Krotoski said he “apologizes to the court for any oversight and lack of clarity” that may have contributed to the events described by in the show-cause motion.
The court had indicated during a Friday, April 4, hearing that “a conversation or an explanation” was needed following questions about the process used by the expert to generate charts and exhibits, Krotoski said in the response. The judge ordered the parties to meet but did not impose a deadline. The judge did, however, say the meeting must happen before a hearing could resume on the admission of the expert’s testimony, Krotoski said in the response.
Later on Friday, the government disclosed that Krotoski’s expert met with an expert, but there were some outstanding items that they needed to work through. There still was no time set for the meeting.
Krotoski briefly met with the expert before she left for the airport Friday and asked her to provide written information about her meeting with the government witness. She did not indicate that she would be unavailable at any point during the weekend, the response said.
Krotoski said he made multiple efforts to contact the expert before a meeting with the government on Saturday afternoon, but she did not respond in time. When the expert sent the requested materials to Krotoski by email that night, he immediately downloaded them and provided them to the government, despite concerns that they included work product.
At the time that he emailed the government about his expert witness traveling, “he had already been working more than 12 hours that day and was also impaired by his aggravated respiratory and sinus illness, a relevant factor in considering his subjective intent,” the response said.
Because the trial was ongoing, Krotoski had a full day already scheduled on Saturday to address a range of issues, the response said. His day began at 6:30 a.m.
“During the day, he sent and received more than 140 emails; had more than 35 case telephone calls, in addition to Teams meetings; and waited to learn more” from the expert witness. His illness affected his energy level, he said.
He called, texted and emailed the expert nearly 20 times before she sent the materials in two batches beginning at 10:51 p.m.
“The record and facts do not demonstrate an effort ‘to mislead the court’ by Mr. Krotoski and do not support a finding of subjective bad faith,” the response said.
“While Mr. Krotoski used a poor choice of words in communicating with the government concerning the unavailability of the expert,” the response said, “his statement that she was unreachable and they were addressing a work product issue was accurate.”
In the new-trial motion, Krotoski cited a court ruling explaining a discovery basis for excluding the expert, and the cases cited are based on witness exclusion on discovery grounds, the response said.
Krotoski didn’t immediately respond to an ABA Journal email seeking comment. An out-of-office email said he was attending a court hearing, and his email responses may be delayed. His legal secretary didn’t immediately respond to the Journal’s voicemail. A spokesperson for Pillsbury also did not immediately respond to the Journal’s request for comment.
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