Discovery begins, another plaintiff files in ‘lava bomb’ federal suit

  • JOHN BURNETT/Tribune-Herald In this July 16, 2018, file photo, a police officer secures the Lava Ocean Tours boat "Hot Spot" at Wailoa Small Boat Harbor in Hilo.

Attorneys involved in a federal lawsuit regarding a “lava bomb” that tore through a lava tour boat and injured numerous passengers near Kapoho on July 16, 2018, started exchanging documents and witness lists Friday, according to a lawyer for several plaintiffs.

“We’re in the very beginning stages of discovery, because before … the federal court had issued a stay on all discovery,” said Clay Robbins, a Los Angeles attorney representing Erin Walsh and William D. Bryan Jr., an Oregon couple, and California couple Ka Ming Li and Dawn Li and their adult daughter, Erica Li, and their son, a minor.

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Robbins said all parties must turn over to the others “documents and witnesses that they have that have any bearing on the liability or damages issues or defenses in the case.”

“I know that counsel for the lava boat has been issuing subpoenas to get medical records, and, of course, the medical records are going to be produced by the parties in the case,” he said.

A non-jury trial has been scheduled for Sept. 8, 2020, at 9 a.m. before U.S. District Judge Leslie Kobayashi in Honolulu. In addition, a formal settlement conference is scheduled for June 18, 2020, at 10 a.m. before U.S. Magistrate Judge Wes Reber Porter in Honolulu.

An Illinois woman, Jessica Tilton, was the most seriously injured passenger. She was 20 and on a lava boat tour with her family when the fiery rock — estimated at between a foot and 2 feet in diameter — tore through the roof of the boat “Hot Spot” near Pohoiki.

Tilton was struck by the volcanic projectile, fracturing her thigh bone, tibia and pelvis and leaving her with injuries that required her to undergo three surgeries at The Queen’s Medical Center in Honolulu.

Authorities said 23 passengers suffered injuries, but only Tilton’s required hospitalization beyond treatment at Hilo Medical Center’s emergency room.

Tilton, her parents, Rob and Teresa Tilton, and her twin sisters, who were 15 at the time and identified only by their initials, also are suing Lava Ocean Tours Inc., owner of the boat. They’re represented by Honolulu attorneys Rick Fried and Patrick McTernan.

On June 5, Honolulu attorney Rodger Hoffman filed a complaint on behalf of another plaintiff, Jennifer Midstokke, who was visiting from California. The complaint doesn’t list any specific injuries, but said she has “suffered damages including but not limited to: serious and permanent physical injuries; serious emotional distress, including fear of impending death; disfigurement, pain and suffering; (and) economic damages … .”

All the lawsuits accuse Lava Ocean Tours and Shane Turpin, captain of the “Hot Spot,” of negligence for piloting the sightseeing boat too close for safety to the lava ocean entry and not adequately warning passengers of the tour’s potential hazards.

The suits state Turpin had applied for and was grated permission to navigate his vessels inside a 300-meter safety zone from lava ocean entry points the U.S. Coast Guard had established to protect people and vessels from exploding molten rock.

The Coast Guard had warned Turpin, however, that by entering the safety zone, Turpin and Lava Ocean Tours “assume any and all risks and liabilities associated therewith, including but not limited to: injury, death and damage to persons and property.”

Turpin, who is listed on the state’s Department of Commerce and Consumer Affairs as the only officer of Lava Ocean Tours Inc., told the Associated Press in July 2018 he was about 250 yards from the lava ocean entry and was in the process of leaving the zone when the explosion occurred.

Lava Ocean Tours filed a federal suit of its own Jan. 16 seeking to exonerate the company from liability or to limit the company’s liability to $300,000, the assessed value of the “Hot Spot.” His complaint is still active.

Previous court filings claim the cost of Jessica Tilton’s medical treatment was more than $400,000.

The tour company’s suit called the incident “an unforeseeable offshore submarine volcanic event … which occurred without warning.” It denies that any damages to or losses by plaintiffs were “caused (or) contributed to, by any fault, negligence or neglect on the part of” Lava Ocean Tours.

Robbins said lawsuits filed in state court on behalf of his clients and the Tiltons are still technically active but on hold as the federal litigation proceeds. He added that the settlement conference scheduled by the court is a mere formality, at this point.

“In all likelihood, the parties will speak with one another (about) resolving the matter informally, just among ourselves, or schedule a formal/informal mediation … to talk about the case and see if the case can be settled,” he said.

He also said the parties are waiting for the Coast Guard and the state Department of Land and Natural Resources “to finish their respective investigations and, obviously, that’s going to factor rather significantly in certain of the liability claims. Not that those conclusions would be admissible in court, but they certainly would inform the proceedings … .”

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The Tribune-Herald reached out to Normand Lezy, an attorney for Lava Ocean Tours, but didn’t immediately receive a reply.

Email John Burnett at jburnett@hawaiitribune-herald.com.

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