by David Kirby
“What you’re calling a complete incident report log is not complete and does not contain every incident between 1988 and 2009, correct?” Black demanded of Tompkins in one terse exchange. “We missed a few,” Tompkins replied tetchily. He informed Black that only twelve of the one hundred incidents in the log resulted in significant injuries, and that was out of an estimated 1.6 million interactions between orcas and trainers since 1988.
Naomi loathed this overused statistical manipulation. If a percentage of cars of a certain model had faulty brakes, it didn’t matter how many times those cars were driven safely before their brakes inevitably failed and people died. The same was true with orcas: It wasn’t the number of interactions that mattered; it was the number of whales that had injured a trainer. But SeaWorld’s incident log listed several whales who had injured people. The company claimed a “failure rate” of less than 0.001 percent, but by Naomi’s calculations it was actually more than 10 percent.
Black next blasted SeaWorld for still not having entered the Brancheau killing into the incident log, but Tompkins pointed out that staff had reviewed that incident extensively at meetings. Everyone was well aware what happened that day, he said, but Black still took him to task anyway. “Nonetheless, you’ve made a decision not to record it now and not to provide a written description so that people will understand what SeaWorld’s analysis was without [a trainer] having to come to somebody and say, ‘Jeez, can you explain?’” Black growled.
Tompkins fired right back that at SeaWorld it was “not an option to know facts. It’s mandatory.”
Gunnin argued that SeaWorld trainers were required to read incident reports and the Animal Profiles alike, as well as other records, some of them kept daily. “There are a lot of redundancies,” she told Judge Welsch. She was backed up by Tompkins, who testified that SeaWorld treated all safety issues with the utmost seriousness. He called the incidents “learning opportunities” that yielded increased knowledge of each whale and, by extension, greatly enhanced security. Mistakes were made, he conceded, “but we have a process by which we learn from those mistakes.” As evidence for that, he said the number and frequency of incidents had dropped in recent years. “We have gotten a whole lot better.”
“Maybe you were lucky?” Black shot back.
“We don’t think so,” Tompkins said dourly. “We think it was getting better.”
But Black wasn’t having it. “We have already established,” he said, perhaps a bit haughtily, “that your incident reports are incomplete.”
Naomi smiled as she scribbled in her notebook. Score one for the feds, she thought.
Day 4: Thursday, September 22. Two witnesses filled much of the day. The first was Jan “Jay” Topoleski, who had transferred from Shamu Stadium to Sea Lion and Otter Stadium after Dawn’s death, then left SeaWorld entirely to work as an FBI forensic canine specialist. Topoleski, who first reported the ponytail grab, now offered a somewhat different account from what he originally told deputies. He testified in court that Dawn was doing a “mimic behavior” in which she had Tilikum turn on his back as she mimicked the motion on the shallow ledge.
“I saw her get up to her knees and put her hands on her ponytail, and I saw that she couldn’t break free,” he said. Dawn was struggling with both hands to extract her ponytail from Tilikum’s mouth. But under cross-examination, Topoleski was obliged to acknowledge he did not actually see Dawn’s ponytail in the animal’s mouth.
Next up was Shana Groves, one of the first trainers to arrive on the scene when the alarm sounded. Still visibly shaken by the incident, she began sobbing when shown a picture of herself with Tilikum. Just a few weeks before the trial, Groves had requested a transfer out of Shamu Stadium, also to Sea Lion and Otter. Under government questioning, Groves testified about all the different cautions given to orca trainers, such as never turning one’s back on an animal. Black pounced. Such warnings were vivid proof, he said, of orca unpredictability. But Groves countered that trainers were extremely cautious. “I was at SeaWorld for seven years before I could even open a Tilikum gate,” she said. “That’s how precautionary we were.”
The late afternoon was spent arguing over the acceptability of Dr. Dave Duffus as OSHA’s expert witness. Gunnin sought to have him disqualified because he had no expertise with captive killer whales, only wild ones. She fought hard, and for a moment Naomi thought the judge would side with her. In the end, he agreed to allow Duffus to testify, but warned that he would take the professor’s lack of captivity experience into account when deciding how much weight he would lend to his testimony.
During his direct examination, the Canadian scientist calmly and methodically ripped into SeaWorld’s complaint against the US government: “There’s always going to be an uncertainty. I think it would be complete folly to put yourself in close proximity to wild killer whales where they could seize you or pull you into the water.” He also politely mocked SeaWorld’s claims that aggressive acts against trainers were exceedingly rare. “If it only happens once in a million, but if in that millionth time, the outcome is a catastrophe, I think it goes beyond the probability issue.”
Day 5: Friday, September 23. In what was supposed to be the final day of testimony, Judge Welsch announced that the hearing would have to reconvene and set the date for November 15. Meanwhile, Duffus returned for Gunnin’s harsh cross-examination trying to impeach his credibility, but he held his ground. Duffus was “alarmed” by Dawn’s proximity to Tilikum, he said. “I don’t want to second-guess an experienced trainer, but I would not, given my experience with killer whales … be that close to Tilikum. No way on earth.”
Asked by OSHA attorney Howard-Fishburne why he felt that way, Duffus said simply, “I have a great deal of respect for the fundamental nature of large predators.” As for the safety and predictability of interactions with trained whales, they could not be counted on “under every condition. If the interactions with Tilikum were sufficient under all conditions, we would not be here today.”
Meanwhile, SeaWorld’s safety training program was “influential,” Duffus conceded to Gunnin, “it does work. My point is it does not work all the time.” He added that he was struck by the similarities between the attacks on Dawn and on Keltie Byrne, back in 1991. But, he added somewhat ruefully, “Twenty years later, a lot has been done, yet I’m reading the same outcome.”
The final witness was Les Grove, head of OSHA’s Tampa office and Lara Padgett’s boss. Gunnin grilled him on the inconsistency of calling for abatements during shows, but not for other activities at SeaWorld. “You’re not saying, as long as it’s not a show, they can do water work, are you?” she asked Groves. “What’s the difference between any type of close contact?”
The citation applied only to shows, Groves replied. But then again, any “responsible employer” who was aware of “other interactions where [workers] are exposed to the hazard, you should take action.” In other words, the citation was for the shows, but SeaWorld should apply the abatements across the board.
* * *
The hearing reconvened in mid-November in the same Sanford, Florida, courtroom. Naomi returned for part two, as did Colleen Gorman of TOP and Jared Goodman of PETA, which had since filed its controversial lawsuit against SeaWorld seeking the release of five wild-caught orcas under provisions of the antislavery Thirteenth Amendment. Courtney Vail of WDCS did not make the trip, though Tim Zimmermann and the documentary film team of Gabriela Cowperthwaite and Manny Oteyza flew to Florida for part of the second half.
This time, Naomi kept a running commentary on each day’s proceedings and e-mailed them to her husband, Chris, and allies such as Nancy Yates, Courtney Vail, and Bill Rossiter at CSI.
Day 6: Tuesday, November 15, 2011. “Overall the day went to OSHA, but it was not a smooth victory.” One point that OSHA did manage to score was that the incident reports “aren’t really that useful as tools, because the trainers often do not re-review them, don’t seem to remember what was in them, don’
t even seem to remember incidents from as recently as three years ago in their own parks,” Naomi noted.
Scheduled that day were witnesses whose testimony SeaWorld had fought hard to suppress, but failed. First up was Ken Peters, involved in three aggressive incidents with Kasatka. He testified that trainers can predict whale behavior 99.9 percent of the time. But, as Naomi noted, he also admitted to not having looked at any of the pre-1994 incident reports in “a long, long time.” Such inattention “hardly makes these reports useful as training tools if the trainers don’t remember what’s in ’em and never review them,” she said.
Kasatka had tried to grab Ken Peters in 1999, yet SeaWorld continued water work with her until the 2006 incident. “So how many strikes does a killer whale get before SeaWorld gets trainers out of the water with them?” Naomi asked. According to Naomi, the day’s “most shocking statement” had come from Peters himself. When John Black asked if Peters felt he might die that day, “he replied, ‘I never felt my life was in danger.’ I just found that absolutely bizarre,” Naomi wrote. “I don’t think he felt he was lying either. I just think he literally has amnesia about how scared shitless he was. Because I’m sorry, the close-ups of Ken Peters’ face from that video DEFINITELY show a man in fear of his life.”
Next up was Michael Scarpuzzi, San Diego’s vice president of zoological operations, who Naomi said had delivered the “strongest testimony (for OSHA)” of the day. Scarpuzzi was a “very reluctant witness,” Naomi noted, perhaps because “he has disagreed with his superiors on trainer safety. I think Scarpuzzi didn’t want to be there and didn’t want to answer any questions at all. He didn’t want to lie and he didn’t want to tell the truth.”
Howard-Fishburne had clearly grown exasperated with Scarpuzzi’s evasive tactics. “Mr. Scarpuzzi, we can play this game all day,” the lawyer told him. “I’m asking you simple, basic questions, and you’re giving me the runaround.” Scarpuzzi denied he was playing a game, and Howard-Fishburne asked the judge if Scarpuzzi could be considered a hostile witness. “The judge said yes without hesitation,” Naomi observed. “I think that shook Scarpuzzi a bit: he began answering more directly after that.”
Scarpuzzi was the SeaWorld executive who had traveled to Tenerife when Keto killed Alexis. He testified that there had been a “series of incremental, minor behaviors by Keto, which alone were not significant,” Naomi said. “I think he wanted to suggest that this therefore meant it would have been difficult to impossible to prevent Martinez’s death, since there were no obvious precursors,” and this was just an accident; no fault of SeaWorld’s. “I think OSHA was able to suggest this actually meant once again that SW’s training protocols were useless.”
Day 7: Wednesday, November 16. OSHA rested its case, and Gunnin immediately moved to dismiss the citations against SeaWorld. “That’s when Carla Gunnin took off!” Naomi wrote in her review. “We were wondering if the ‘vibe’ or tone of the hearing would change once SeaWorld started presenting its case and we were right! She was a different Carla—more aggressive, more articulate, more certain of her arguments. She actually had me going for a while there, but in the end, I think she went too far.”
Gunnin argued forcefully that OSHA had failed to make a convincing case that SeaWorld was willful in its behavior. SeaWorld staff had repeatedly testified that company protocols were “in a constant state of being improved, precisely because SeaWorld recognizes problems via the incident reports and both minor and major changes have been made in response,” Naomi wrote. “This is hardly ‘indifferent’ management.”
Gunnin asserted that the law does not allow the government to simply say “you cannot do this,” Naomi noted. The law demands that the government come up with feasible abatements, not the employer, so the company can continue doing business. “And the business of SeaWorld, boys and girls, is not to educate people or conserve nature—it’s not even to entertain people,” Naomi wrote. “It’s to entertain people with WATERWORK SHOWS. (Gunnin said, ‘The nature of SeaWorld’s show IS waterwork.’) Which means the abatement of ‘no waterwork’ is not feasible—it actually will prohibit the company from conducting its business.”
At that point Gunnin “lost me, and I think that’s where she lost the judge,” Naomi said. Gunnin was equating SeaWorld’s business with water work: remove it and the company would go bankrupt. “Now, we know this might actually be true, but they have shot themselves in the foot with this argument by voluntarily keeping their trainers out of the water for all these months,” Naomi wryly noted. “The show has (as the saying goes) gone on, even with drywork only, so it’s kind of unconvincing now to argue that waterwork is an essential element of SW’s business.” Even the judge noted there had been no water work for twenty months, and SeaWorld was still operating as normal. Gunnin was hardly going to admit that the new, “dry” Shamu show was not pulling in the crowds. It was a bit of a legal pickle for her side.
The judge rejected SeaWorld’s motion to dismiss. Even so, Gunnin had carved some deep chinks into OSHA’s armor, and Welsch agreed to take her arguments under consideration.
Later that day, Flaherty Clark returned to the stand. Much of her testimony related to incident reports and how they enhanced trainer safety. She seemed defiant. Gunnin asked whom the incident reports were written for. “They certainly are not written for lawyers or a courtroom,” Flaherty Clark sniffed. Naomi didn’t think the witness had done herself any favors with the flippant remark. “They were written for the trainers. They were written for the people that we are developing, and they’re written in the name of enhancing our craft.” Now Naomi had to suppress a chuckle. “Craft is right,” she wrote in her notes, “cuz it sure ain’t a science.”
Flaherty Clark adamantly denied that she or SeaWorld showed plain indifference toward employees. Asked why, she said, “Because of my twenty-five-year career and watching the changes and watching the protocols and watching the science grow. We established protocols, we developed SOPs [standard operating procedures], we added levels of management, we added oversight, spotters, emergency protocols, training on how to recognize—you know, around this hearing, I would say, we trained—I mean, we train a lot.” Those protocols “made me able to sleep at night as their director. I know that I did not disregard the safety of my animal trainers.”
“Basically SeaWorld is trying to have it both ways,” Naomi wrote to the gang that night. “They are saying that nothing went wrong on Feb. 24, 2010, that their SOPs work.… BUT they also are reviewing all their SOPs and have the trainers out of the water until they have completed that review. But if it wasn’t broke, why are they trying to fix it?”
Day 8: Thursday, November 17. Much of the afternoon was spent wrangling over the qualifications—and alleged conflict of interest—of SeaWorld’s expert witness, Jeff Andrews. Now employed by the San Diego Zoo, he was a former SeaWorld trainer and still consulted for Busch Gardens Tampa Bay, owned by SeaWorld Parks & Entertainment. Ultimately Judge Welsch approved him.
But the real drama came earlier, when John Black throttled Kelly Flaherty Clark, who’d returned to complete her testimony. “John Black pushed KFC pretty hard and rattled her cage enough to have her lose her cool at least once,” Naomi commented.
It was a searing exchange. Black pressed the witness about whether Tilikum had been “desensed” to ponytails or not.
“I would assume that Tilikum, after nineteen years of not reacting to ponytails, was desensitized to ponytails,” Flaherty Clark opined.
But whales “sometimes pull on things,” Black reminded her, “as you have testified earlier.”
The witness glowered. “Tilikum in nineteen years has never shown us that he pulled on anything.”
“You testified … they do sometimes put things in their mouth and pull it, right?”
“Yes.”
“So you put Tilikum in his own little box, if you will, and were not willing to generalize that he might engage in pulling behavior?”
“Tilikum
never exhibited any behavior that would make me think he would pull.”
“But you knew he was capable of pulling?” Black asked again.
“I know you are capable of rape,” Flaherty Clark muttered. (Earlier, when asked if all orcas were physically capable of injuring trainers, she had disagreed with the generalization and snapped, “I could say to you that all men have the potential to be rapists.”)
Welsch halted the deteriorating exchange. “We’ll strike that comment,” he said quietly.
Day 9: Friday, November 18. Naomi, and probably everyone else in court, was relieved that the last day had finally arrived. First up was Chris Dold, vice president of veterinary services for SeaWorld Parks & Entertainment, who corroborated Flaherty Clark’s testimony about the benefits of physical contact to animal husbandry: “The long-term impact of no contact I would imagine would be negative. It certainly would not be a policy that I would endorse.” Veterinary work was “multisensory,” he said. “You touch, you feel.… This is a human and animal engagement. No contact would be to the detriment of certainly our responsibilities as stewards of these whales.”
But, Black pointed out, there had been no contact with Tilikum ever since the attack. Was Dold suggesting that Tilikum was receiving suboptimum care? The answer, of course, was no.
Naomi found Dr. Dold arrogant and supercilious. At one point, John Black had objected to a question that Carla Gunnin put to Dold because it had already been answered by Kelly Flaherty Clark. “He’s adding some veneer of expertise,” Black complained. He was overruled. The witness was indignant. “Just briefly, John,” Dold said, turning to the government lawyer. “It was a one-hundred-thousand-dollar degree, my veterinary degree, and so the ‘veneer of expertise’ thing kind of stings, man.” Black apologized, but Dold pressed on. “I know you’ve got to strike that,” he said, this time to the judge. “Go ahead and strike it, but for crying out loud.”