The security guards screening visitors to the Seminole County Criminal Justice Center in Sanford, Florida, jokingly called it the “Flipper trial.” But when nine days of courtroom testimony on the intricacies and risks of working closely with killer whales drew to a conclusion on November 18, the federal administrative-law judge tasked with ruling on SeaWorld’s appeal of an OSHA citation knew he had a tough decision before him. “This is one of the most unusual OSHA hearings I have had,” said Judge Kenneth Welsch, explaining that most of the dangers he’d deliberated during the past 15 years were more commonplace, like employees tripping and falling. “I will have to consider it very carefully.”
The hearing included mind-numbing detail and plenty of legal wrangling. Both OSHA’s and SeaWorld’s legal teams made frequent objections and tried to disqualify each other’s expert witnesses. Testimony sometimes grew heated. When trying to make a point about the difference between what a killer whale has the potential to do and what it is reasonable to expect it to do, SeaWorld Florida animal-training curator Kelly Flaherty Clark stared at OSHA attorney John Black and said that, for instance, all men are capable of rape.
I reported on the first part of the OSHA-SeaWorld hearing and, at length, on the deaths of trainers Alexis Martinez, who was killed by a SeaWorld orca at a marine park in the Canary Islands in December 2009, and Dawn Brancheau, who was killed two months later at SeaWorld Florida by Tilikum, SeaWorld’s largest orca.
OSHA had to convince the judge of at least two things: 1) SeaWorld’s killer whale practices put trainers in danger, and 2) SeaWorld was aware of the dangers but disregarded them.
Here’s how last week’s testimony played out.
Risks to Trainers
Killer whales are powerful predators honed by evolution to near perfection in the hunting and killing of everything from salmon to seals. Demonstrating that they are potentially dangerous to trainers at marine parks was in some ways the easiest part of OSHA’s case.
In September, OSHA presented evidence that killer whale training is risky business and showed the court a tape of trainer Ken Peters being dragged repeatedly to the bottom of the pool by a killer whale called Kasatka in 2006. Last week, OSHA called Peters to the stand and delved into the fact that while Kasatka was already on record in an incident report for trying to grab at Peters in 1999, it was not until the 2006 near drowning that SeaWorld took Kasatka out of the rotation of whales that work with trainers in the pool, a specialty known as water work. For his part, Peters testified that in the 2006 incident, “I never felt like I was going to lose my life.”