Brancheau with an orca, December 2005
Brancheau with an orca, December 2005

OSHA Goes After SeaWorld, Part 2

Is working closely with killer whales in a marine park dangerous for trainers? Our reporter travels to a courtroom in Florida to cover the controversial OSHA-SeaWorld hearing, the outcome of which could redefine SeaWorld’s Shamu shows.

Brancheau with an orca, December 2005
Tim Zimmermann

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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.”

OSHA also questioned Mike Scarpuzzi, SeaWorld California’s vice president of zoological operations, under oath. (SeaWorld’s lead lawyer, Carla Gunnin, had tried to block his testimony, but Welsch denied her motion.) Scarpuzzi was questioned about his investigation of Martinez’s death at Loro Parque, in the Canary Islands, two months before Brancheau was killed, saying that he jumped on a plane after he received a call from SeaWorld’s supervising trainer at Loro Parque, Brian Rokeach. “There has been an incident, and it was bad,” Scarpuzzi said Rokeach told him.

Scarpuzzi was so reluctant to testify that Judge Welsch allowed OSHA to designate him as a hostile witness. Scarpuzzi eventually explained that he believed Martinez died because of “a combination of commonplace and minor occurrences accumulated to where Keto did what he did.” That seemed to support OSHA’s contention that it is not always possible or easy to predict aggressive and potentially lethal behavior from killer whales.

SeaWorld witnesses later pushed back, with Flaherty Clark and SeaWorld Florida supervisor-level trainer Jennifer Mairot testifying that they believed the level of experience among trainers at Loro Parque was low, that Martinez and the trainers involved panicked, and that similar errors never would have occurred at SeaWorld Florida. “When I watched [the video], Keto wasn’t even really that mad,” Mairot said. “He never really lost it.”

Last week’s testimony also highlighted the fact that since Brancheau’s death, SeaWorld has removed trainers from the water; has instituted new safety protocols, including the use of barriers between trainers and killer whales when trainers are within three feet of an animal or touching its head; and has added additional restrictions on how Tilikum should be handled. SeaWorld, according to Scarpuzzi, also conducted an internal review of Brancheau’s death and devised an extensive series of safety measures now being implemented. Those measures include fast-rising pool floors and personal air canisters to give trainers who might be dragged underwater more time to surface. OSHA attorney Black emphasized to the court that all the post-Brancheau safety modifications were undertaken by SeaWorld management either before OSHA’s citation or apart from it, the implication being that SeaWorld itself understood that it had serious safety issues.

In the end, OSHA rested its case without showing Judge Welsch the controversial underwater video of Dawn Brancheau’s death.

Indifference to Risk

OSHA’s citation of SeaWorld is categorized as willful, which means OSHA believes SeaWorld committed safety violations “with plain indifference to or intentional disregard for employee safety and health.” This will be a more complex point for Judge Welsch.

OSHA’s team argued that SeaWorld Florida was acutely aware that Tilikum, who was involved in two deaths before killing Brancheau, was a potentially lethal animal, yet still put trainers in close contact with him. Black also established that SeaWorld was aware, or should have been aware, that a killer whale might pull a trainer into the pool, noting that a 1997 incident report, in which a killer whale pulled a trainer into the water by her sweatshirt, included a comment urging that all killer whales be “desensitized” to—trained to ignore—loose or dangling articles, including hair. (SeaWorld believes Tilikum pulled Brancheau into the pool by her hair.) Black’s questioning established that SeaWorld responded to the incident by requiring trainers to wear wetsuits around the orcas to eliminate loose clothing but did not require trainers to keep long hair in a bun—a step, he noted, that SeaWorld did take in the aftermath of Brancheau’s death.

SeaWorld’s legal team and witnesses countered that SeaWorld’s careful documentation of incidents, in order to learn from them, as well as its constant effort to improve and refine safety protocols over the years, shows that SeaWorld was not indifferent to the risks. Flaherty Clark testified that Tilikum was desensitized to hair through the countless times he was exposed to it and that before Brancheau’s death there was never any indication that he might pull a trainer into the water by grabbing hair.

Flaherty Clark and other SeaWorld witnesses also detailed the temporary suspension of water work and major safety reviews and refinements that followed the most serious incidents at SeaWorld in 1987, when trainer John Sillick was crushed and paralyzed by a jumping whale that landed on him, and the 2006 near drowning of Peters. “And after getting back in the water each time, there has been another incident or injury,” Black countered. “Yes,” Flaherty Clark conceded.

OSHA’s Safety Recommendations

OSHA is also required by law to demonstrate that the safety improvements, or mitigations, it recommends are feasible and will not unduly harm SeaWorld’s business.

OSHA didn’t spend a lot of time detailing what sorts of barriers or other safety modifications SeaWorld should design and implement. But OSHA did note that despite Brancheau’s death, the suspension of water work, and SeaWorld’s new restrictions on close contact with killer whales, SeaWorld’s orca shows have continued apace.

OSHA also argued that its citation of SeaWorld Florida’s killer whale practices only applies to performances, but Judge Welsch will have to decide whether it is feasible to apply safety restrictions to killer whale shows but not to similar training practices and to contact with the animals that occurs outside the performances.

SeaWorld’s legal team argued to Judge Welsch that OSHA had not done enough to demonstrate how mitigation would work and whether it would be feasible. SeaWorld’s lead lawyer, Carla Gunnin, also called SeaWorld vice president of veterinary services Chris Dold to the stand. Dold testified that had trainers been swimming routinely with a SeaWorld Florida killer whale called Kalina, who died suddenly last year, they might have determined that something was wrong before Kalina showed signs of serious illness. In addition, Dold testified that the greater the degree of trainer contact with the killer whales, the better SeaWorld’s ability to care for them. General surgery on a killer whale is not an option, he explained, “so if a killer whale has a problem, I need to know very, very early.”

On cross-examination, Black got Dold to concede that there are no animal-care procedures that require trainers to be in the water with the killer whales. And when asked if under SeaWorld’s current procedures, which include extracting blood samples from Tilikum while the vet is positioned behind a low wall, he was unable to take care of SeaWorld’s killer whales, Dold replied, “We can still exact care on these animals, whatever barriers are thrown up.” “SeaWorld is adequately caring for the whales to this day?” Black pressed. “Undoubtedly,” Dold answered.

Judge Welsch clearly showed he is focused on the question of how safety restrictions might affect SeaWorld as a business. “How important is the water work to SeaWorld Orlando in terms of the shows?” he asked SeaWorld’s Flaherty Clark. “I would say it is an important component of the shows,” she answered.

As soon as full transcripts of the hearing are completed, which could take more than a month, both OSHA and SeaWorld will have 45 days (more if they need it, Judge Welsch indicated) to summarize their arguments in briefs. Judge Welsch will then bury himself in a hearing record that runs to thousands of pages and issue a decision, likely sometime next Spring.

That decision won’t necessarily settle the matter. Both sides are likely to appeal further if they lose. So the case, which has the potential to redefine SeaWorld’s Shamu shows, could go on well into next year and beyond.

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