Wrongful death suit over N.Y. boy swept out to sea will stay in Hawaii

A wrongful death and negligence lawsuit for the family of a New York teen swept to sea during an excursion on Hawaii’s Big Island will stay in Hawaii, a federal judge in Honolulu has ruled.

Chief U.S. District Judge Susan Mollway said in an order filed today that moving the case would deprive the family of 15-year-old Tyler Madoff a meaningful day in court.

The companies being sued by Madoff’s father pushed for changing courts to Jefferson County in Colorado because of an online agreement signed by Madoff’s mother when the trip was originally set up. The adventure company that arranged the trip is Bold Earth Teen Adventures, which is based in Golden, Colo.

Also named as defendants in the lawsuit are Hawaii Pack and Paddle, the local tour company that led the excursion, and a tour guide.

Mollway said moving the case would make it difficult for lawyers for the Madoff family to bring witnesses to testify at trial in person, including first responders, search and rescue personnel, state officials and other hiking and kayaking tour operators in Hawaii.

Even if witnesses agreed to travel to Colorado to testify at trial, they could change their minds or run into work or family conflicts and the Madoffs would have no way to obligate them to go to court, Mollway said. That would mean the family’s lawyers would have to present the majority of their case through video conferencing and taped depositions, the judge said.

“These circumstances would impair the effectiveness of any presentation, no matter how dazzling counsel might be,” Mollway said in her order. “The court assumes that a Colorado trial would take advantage of all the bells and whistles that technology makes available to advocates today. But this court is far from alone in recognizing that technology is not yet able to replicate a person’s physical presence.”

The teen’s body hasn’t been found since he was swept of the west coast of Hawaii Island during a hiking portion of a kayak expedition. Authorities said at the time of the incident that the group stopped to rest at a tide pool when large waves hit and took Madoff away.

According to the lawsuit, the teens were in an area with dangerous surf warnings that’s not permitted by the state.