Feds want delay in duck boat lawsuits. That would leave ‘open wound,’ victims say

Soon after a duck boat sank on Table Rock Lake, relatives of some of the 17 who died, survivors and even a rescuer filed suit.

But a move by federal prosecutors investigating the July 19 tragedy could put those cases on hold indefinitely. For victims and their families, it might be years before they get their day in court.

“The families want justice and closure,” attorneys for some of the victims said in a federal court filing last week. “These families brought this action to get answers to what happened and to ensure it does not happen to someone else’s family in the future.

“The efforts of the United States Attorney to delay closure for the victims will only prolong their suffering.”

And it could mean that the public may have to wait indefinitely to learn exactly what happened that July night when a Ride the Ducks boat sank in stormy weather on the southwest Missouri lake.

Federal prosecutors have asked courts to halt all discovery and release of information until their criminal investigation is complete. If approved, the action would stall depositions, examination of evidence and requests for records.

“This just delays everything and keeps these wounds open — it doesn’t allow these families to move on,” said Gerald McGonagle, a Kansas City attorney representing the daughters of a Higginsville couple who died in the tragedy. “There’s no reason to stop us from getting documents, there’s no reason to stop us from deposing witnesses and moving forward with the process.”

At this point, no one is charged in relation to the tragedy and there’s no way to know when the investigation will be completed. Some federal cases take years before they make it to trial.

Prosecutors with the U.S. Attorney’s Office for the Western District of Missouri have argued that the action is necessary to prevent civil lawsuits from interfering with the federal probe. The release of information, they say, could create a “severe prejudice” in their investigation.

When contacted recently about the motion, Don Ledford, spokesman for the U.S. Attorney’s office, said he could not comment.

Adam Graves, another Kansas City attorney working on the Higginsville family’s lawsuit — which was filed in Taney County — said when someone from the U.S. Attorney’s office first contacted him about the motion, he was told that it would be “a very limited stay of about six months.”

“He said, ‘We don’t want to get in the way; we understand these families need their day in court,’” Graves said. “But now they’ve asked for a stay that will include all the way through criminal trial and beyond. So we could be talking five, eight years.”

Robert Mongeluzzi, a Philadelphia attorney representing several plaintiffs who have sued Ripley Entertainment — current owner of the Branson operation — and Ride the Ducks International in federal court, filed an objection to the stay last week and sought some middle ground.

That objection proposed ways the civil cases could advance without hindering the government’s probe or jeopardizing the rights of those under investigation. It suggested plaintiffs’ attorneys could wait nine months before testing physical evidence or questioning criminal targets as well as others essential to the investigation.

That waiting period would allow plaintiffs’ attorneys to carry out additional matters, such as questioning witnesses who saw the duck boat sink and passengers on a nearby boat that didn’t sink.

In mid-August, the U.S. Coast Guard referred the criminal investigation to the U.S. Attorney’s Office for the Western District of Missouri to pursue possible federal charges. That office, based in Kansas City, includes the Table Rock Lake area.

The Coast Guard notified prosecutors that its preliminary determination was that the sinking of Stretch Duck 07 and the loss of lives “resulted from the misconduct, negligence, or inattention to the duties of the captain of the vessel at the time of the sinking, which is a violation of federal criminal law.”

The first 911 call about the boat came at 7:09 p.m., 14 minutes after the boat entered the water that July night. The popular Branson tourist attraction takes passengers on a tour of land and water.

The National Weather Service had issued a severe thunderstorm warning at 6:32 p.m., specifically naming Table Rock Lake. The warning said winds in excess of 60 mph were possible. In reality, winds on the lake reached nearly hurricane level at 73 mph, with waves of more than 3 feet.

According to a recent report by the National Transportation Safety Board, the captain and driver were on board at 6:28 that evening when someone stepped onto the back of the boat and told the crew to take the water portion of the tour first. It isn’t known who that person is. The driver, whose job is to steer the duck boat on land, died in the sinking.

Stretch Duck 07 entered the water at 6:55 p.m.

Cellphone video taken from the nearby Showboat Branson Belle, which was docked at the time of the storm, captured the two boats as they struggled in the water. A viral video of the incident ended right before the boat went under. The boat’s captain, Kenneth Scott McKee, was among the 14 survivors.

According to a recent court filing, McKee and the other boat captain — Barry King — are targets of the ongoing criminal investigation. They are under investigation for allegedly operating the vessel in a manner that endangered lives.

The certificate of inspection for Stretch Duck 07 set stringent guidelines for wind and water conditions. It states that the “vessel shall not be operated waterborne when winds exceed 35 mph, and/or the wave height exceeds two feet.”

One major concern with the motion, Graves said, is that a long delay could prevent the victims’ attorneys from gaining access to the duck boat to try to determine if it had mechanical or design problems. And the longer the boat sits, he said, the more difficult that will be.

“We might never know if a part was defective or if it just went bad from sitting so long,” he said. “There’s a whole host of problems.”

Another issue is that plaintiffs would have trouble determining whether they have included all the proper parties in their lawsuits.

It’s not just the victims’ families who would suffer from a delay. The public could also be left in the dark about the safety of the duck boats.

“These things are still operating all across the U.S., in Hawaii and the Caribbean,” Graves said. “I think it’s important for the public to be aware that these things are deadly, and here’s why they’re deadly.”

The Star requested information from the Coast Guard related to the captain’s license. That request was denied because it “relates to a pending law enforcement investigation.”

“Therefore, I am withholding all records, documents, and/or other material, which if disclosed prior to completion, could reasonably be expected to interfere with law enforcement proceedings and final agency actions related to those proceedings,” wrote Captain K.R. Martin, in a letter to The Star.

A hearing on the motion to stay discovery in the federal lawsuits has been scheduled for Nov. 1 in Springfield. A hearing on the lawsuits in state court will be heard at a separate, undetermined time.

On the federal motion, attorneys for the victims and their families will argue there’s an emotional component involved when information is withheld for long periods of time. Especially when other duck boats across the country are still on the water.

“Completely shutting down all civil cases for an unlimited amount of time, as the government requests, is not the answer,” the objection said. “It would be inefficient, unwarranted and highly prejudicial to plaintiffs and to the victims of this tragedy. Justice delayed is justice denied.”