By OSKAR GARCIA
HONOLULU — The father of a New York teen swept out to sea during a Kealakekua Bay expedition last year returned to the state for the first time since the accident to hear arguments Tuesday over whether the case should move to a state court in Colorado.
A lawyer for Michael Madoff argued that moving the wrongful death and negligence case out of federal court in Honolulu would deny the family of 15-year-old Tyler Madoff a fair civil trial.
New York lawyer Susan Karten said witnesses including emergency responders and others on the Big Island would only be able to give written or video testimony if the case moves, hurting her ability to prove the case.
“I think that would have a dramatic effect on any jury hearing the case,” Karten said.
Michael Madoff, dressed in a coat and tie, calmly listened to arguments, but wept after the hearing and declined to speak with reporters. Karten said the father planned to immediately return to his home in White Plains, N.Y.
The move is being proposed by lawyers for Bold Earth Teen Adventures, the adventure company that arranged the trip, Hawaii Pack and Paddle, the local tour company that led the excursion, and a tour guide, who were named as defendants in the lawsuit.
Keith Hiraoka, an attorney for Bold Earth, argued that when the Madoffs arranged the trip, part of the terms and conditions stated that any lawsuits against the company would have to be filed in Jefferson County, Colorado. Bold Earth Teen Adventures is based in Golden, Colo.
U.S. District Court Judge Susan Mollway didn’t immediately make a decision, but said having witnesses physically in the same room with jurors during testimony would be preferable.
“I’m pretty sure every trial lawyer is going to agree with that,” Mollway said.
Tyler Madoff’s body has not been found since he was swept off of Captain Cook during a kayak expedition. Authorities said at the time of the incident that the group was hiking near the Captain Cook monument at Kealakekua Bay when they stopped to rest at a tide pool.
The teens were led to an area that’s out of a state permitted area despite dangerous surf warnings, according to the lawsuit.