The father of a New York teenager swept to sea off Kona during a tour last summer returned to the islands for the first time since his son's death to hear lawyers argue over whether his wrongful death lawsuit should move from Honolulu federal court to state court in Colorado.
The wrongful lawsuit claims a Colorado tour operator and a Big island kayak company ignored high-surf warnings last July 4 and recklessly placed 15-year-old Tyler Madoff and 11 other teens in harm's way. Madoff disappeared off Kona and his body was never found.
"We feel that the Colorado courts will afford the plaintiffs a full and fair opportunity to present their case," said Cynthia Farias, a lawyer for Hawaii Pack and Paddle, the Kona kayak company that led the excursion.
The lawsuit filed by Tyler's father Michael Madoff of New York targeted Hawaii Pack and Paddle as well as Bold Earth Teen Adventures, the Colorado-based company that arranged the trip.
The tour companies have asked Federal Judge Susan Oki Mollway to dismiss the federal civil suit, forcing the family to re-file the suit in Colorado state court.
"I believe the case would be decimated. I believe the legs of this case would be cut right out from under the Madoff family," said Madoff attorney Susan Karten outside Honolulu federal court Tuesday morning after a hearing that lasted nearly an hour and a half.
She said moving the case to Colorado would deny the family a fair civil trial, especially since 43 of the Madoff family's witnesses are from Hawaii.
But the tour companies said the Madoff family should have paid attention to the fine print they signed for Tyler's Hawaii trip that said any litigation must be brought in Jefferson County, Colorado, which has no federal court house. Only a state court exists in that jurisdiction.
"What we're trying to do here today is not to deprive the plaintiffs of that opportunity, but basically to comply with an agreement by the parties to have the cases litigated in Colorado," Farias told reporters.
Farias said it's routine for witnesses to appear using video conference technology at trials today.
"We feel that that would afford the jury the opportunity to see the witnesses and see the demeanor of the witnesses and be able to judge for themselves concerning the credibility of the witnesses," Farias said.
But Karten asked the judge, "Why should we be relegated to a case by video?"
From the bench, Mollway agreed with Karten that "Physical presence in the room with the jury is better. Every trial attorney will agree with that."
Keith Hiraoka, a Hawaii attorney for Colorado-based Bold Earth Teen Adventures, told the judge, "There is no constitutional right to be seen in federal court."
Karten told reporters outside the courtroom, "It's an advantage for a home-town company to have their home-town decide the case, number one. It's an advantage to them to be restricting us from having the rights to go out and get witnesses."
Karten added that Colorado's "restrictive witness rules" would leave her no power to subpoena out-of-state witnesses.
When Tyler's father left federal court Tuesday, he was too full of emotion on his first trip back to Hawaii since his son died to speak to reporters.
But his lawyer said – apart from being home to one of the companies sued and a handful of witnesses in the case -- Colorado has no connection to the lawsuit.
"And their rules and their requirements in state court are much more restrictive than the federal courts of Hawaii and I think that would present an insurmountable burden on the Madoff family," Karten said.
Mollway has said she will rule "promptly." Lawyers in the case expect a ruling in the next week or so.
The Madoff family is not related to Bernie Madoff, the convicted investment swindler. While their names are spelled the same way, Bernie Madoff's last name is pronounced (MAY-doff), while the family of Tyler Madoff pronounces their last name (MAH-doff).
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