Michael Madoff was in Honolulu on Tuesday to hear his lawyers plead with a federal judge to let his lawsuit involving the death of his son be resolved in Hawaii.
The trip was Madoff’s first return to Hawaii since 15-year-old Tyler Madoff’s death.
A large wave washed the New York teenager into the ocean at the Kaawaloa lighthouse near Kealakekua Bay on Hawaii island July 4. He was among a dozen mainland teenagers on an outdoor expedition run by Colorado-based Bold Earth Teen Adventures. His body was never found.
Michael Madoff is suing Bold Earth; Hawaii Pack and Paddle, the tour company in Kona that took the group on a kayak tour of Kealakekua Bay; and the companies’ officers and employees in a wrongful-death suit, claiming tour guides were negligent in leading the group to a dangerous area.
Bold Earth and Hawaii Pack and Paddle want the suit dismissed because they contend that when Tyler Madoff’s parents enrolled their son for the expedition, they signed a contract that limits filing of any lawsuits against Bold Earth to Jefferson County, Colo. On Monday, U.S. District Chief Judge Susan Oki Mollway said she is inclined to side with the companies unless Michael Madoff can persuade her not to enforce the contract.
If Mollway dismisses Madoff’s federal lawsuit here, he would have to refile in Colorado state court. Mollway will rule later on the request.
At Tuesday’s hearing Mollway asked the parties whether the contract denies Madoff access to the federal courts since there isn’t one in Jefferson County and whether a trial in Colorado state court would be so cumbersome as to deny Madoff his day in court.
Colorado judges are not able to subpoena witnesses who are outside the state, and court rules limit the number of depositions that can be used for a trial, Mollway said.
Madoff’s lawyers say the trial should be held in Hawaii because this is where Tyler Madoff died. They told Mollway they have 43 witness from Hawaii who would not be able to present live testimony in a trial in Colorado because of the cost.
"I believe the case will be decimated if the case is moved to Colorado," said Susan Karten, Michael Madoff’s New York-based lawyer.
Bold Earth’s Denver-based lawyer Douglas Stevens told Mollway the Jefferson County court can accommodate live testimony by videoconference.
Mollway said having jurors listen to witness testimony and view their demeanor in person is preferable to having jurors listen to and see witnesses by videoconference.
