SeaWorld Ponders Defeat in OSHA Ruling. Trainer Death May Alter Industry Forever

THE FINAL RIDE? Trainers perform waterwork with killer whales at SeaWorld of Florida moments before the 2010 tragedy.

By months end, SeaWorld Parks and Entertainment must decide whether it will accept the decision handed down by an Administrative law judge last Wednesday. The order by the independent Occupational Safety and Health Review Commission fundamentally upheld citations issued to the Orlando, Florida marine park by OSHA following the brutal death of killer whale trainer Dawn Brancheau in February 2010.

SeaWorld appealed the August 2010 citations during nine days of highly publicized hearings last fall. At stake was the most egregious violation “for exposing animal trainers to struck-by and drowning hazards when working with killer whales during performances”.

“OSHA’s intent has been to ensure the safety and health of employees who work with SeaWorld’s killer whales in performances,” said Dr. David Michaels, the assistant secretary of labor for OSHA. “In his decision, the judge has upheld the OSHA citations. That is a win for the employees of SeaWorld.”

In his rather scathing order, the honorable Judge Ken Welsch unequivocally highlighted the “very high gravity” of SeaWorld’s apparent knowledge of hazards that resulted in the death of the veteran trainer.

Despite reducing the overall fines from $75,000 to $12,000 (a mere pittance for a multi billion-dollar corporation) and downgrading one citation from “willful” to “serious”, his decision sets the stage for what may lead to sweeping changes in the animal entertainment industry.

The monetary fines and seriousness classification matters little to SeaWorld. Their number one concern is that of Welsch’s decision to uphold the Occupational Safety and Health Administration (OSHA)’s recommendations for abating the hazards that exist while performing in close proximity to killer whales (orcas). The recommendations, which the judge deemed feasible— technologically and economically— will likely eliminate the possibility of trainers ever returning to the water for Shamu shows.

Within 10 days after the Judge’s order becomes final (at the end of June), SeaWorld must abate the hazards and provide documentation to OSHA’s Tampa Area Office that the hazards have been corrected.

“Feasible and acceptable means of abatement would prohibit animal trainers from working with killer whales, including ‘waterwork’ and ‘drywork,’ unless the trainers are protected through the use of physical barriers or through the use of decking systems, oxygen supply systems or other engineering or administrative controls that provide the same or a greater level of protection for the trainers” ~ the recommendation reads.

It’s unlikely SeaWorld can successfully demonstrate to OSHA that anything short of keeping trainers out of the water— and at a safe distance from the perimeter of the pools— will satisfy OSHA’s concern for employee safety. But try they might:

“SeaWorld has vowed to return to water work as soon as possible. It has spent at least $65 million on “spare air” oxygen systems for trainers and fast-rising pool bottoms that would beach a rampaging whale and allegedly let rescuers assist the victim trapped in its jaws” says David Kirby, author of the soon to be released book Death at SeaWorld. “It is difficult to see how these measures could provide equal or better protection than staying out of the water with the ocean’s top predators. SeaWorld may well appeal this defeat”

No doubt the next move by SeaWorld is a tough decision— one with ramifications that can be far-reaching. If the order is permitted to stand it will profoundly change the future of SeaWorld’s signature “Shamu” shows, effectively keeping the trainers out of the water with the orcas during performances. It will also have a ripple effect which could forever alter the way humans and animals interact at marine parks, aquaria, entertainment facilities, and zoos across the country— a positive shift for the welfare of captive, exploited animals and trainer safety— but a severe blow to the industry.

“The Labor Department’s actions in this case were carried out to achieve a single goal – protecting the workers at SeaWorld and other parks like it. The decision should send a strong message to SeaWorld that the health and safety of its workers must always be a top priority, and that workers who interact with large and unpredictable animals deserve no less protection than anyone else.” ~ David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health on the Official Blog of the U.S. Department of Labor

Read more about the industry-wide implications on the OSHA ruling in David Kirby’s report in the Huffington Post: “Labor Department Fires Warning Shot At Animal Entertainment Industry”

At the hearings, SeaWorld implored the judge with many of the same old talking points they’ve used to sway public opinion for decades concerning the safety and well-being of trainers and killer whales alike. But Judge Welsch didn’t buy into any of those arguments drawn from a bygone era. His scathing indictment of SeaWorld’s delusional corporate culture makes it very unlikely they would succeed in an appeal of his ruling.

But if they should take that route, it will surely be an uphill climb for the marine park’s attorneys.

In his 47 page order, Welsch systematically dismantled nearly every argument SeaWorld used in its defense— at times calling their testimony “implausible” – the video evidence “chilling” – their data “questionable” – their calculations “unreliable” – and their contentions “difficult to reconcile”.

Tilikum and trainers at SeaWorld in what is described as “drywork”

He went on to say: “No reasonable person reading these comments would conclude that SeaWorld was unaware that working in close contact with killer whales during performances creates a hazard for its trainers. Whether the trainers were fully immersed and swimming with the killer whales for a waterwork show performance, or standing poolside or on a slideout for a drywork show performance, SeaWorld knew its trainers were at risk for being struck or drowned by a killer whale.”

In presenting his conclusions, Judge Welsch criticized SeaWorld’s misguided belief that they have near-total control of killer whales— a species that have thrived on their predatory behavior for thousands of years. He also condemned SeaWorld management for placing every fault resulting in injury or death squarely on the trainers. Welsch’s decision reads in part:

“SeaWorld’s own incident reports demonstrate that its safety program, either due to misplaced faith in operant conditioning or due to human error in implementing operant conditioning, exposes its trainers to the risks of death or serious physical injury.”

“SeaWorld believes it “condition[s] all aspects of behavior.” All behavior is thus predictable. If an undesirable behavior occurs, it is because the trainer missed a known precursor. Ergo, the trainer is always at fault for the killer whale’s undesirable behavior. In this closed system, any injuries sustained by a trainer will always be traceable to human error. It is not the operant conditioning program that is inadequate; it is the performance of the trainer that is flawed.”

“Because it is not part of SeaWorld’s corporate culture to acknowledge unpredictable behavior by its killer whales, it must necessarily find that its trainers are implementing the program incorrectly.”

“SeaWorld holds trainers to a near-impossible standard set by upper management, who engage in a form of Monday morning quarterbacking. As a commenter acknowledges in an August 2002 incident report, “Hindsight is always 20/20”. Any trainer unfortunate enough to have to file an incident report is subject to second-guessing by his or her superiors, who will always find the trainer did something wrong, otherwise there would be no incident report.”

Judge Welsch also blasted SeaWorld’s “expert” witness, Jeff Andrews, particularly relative to the Ponytail Theory and for placing blame on Dawn herself. Judge Welsch continues:

“Mr. Andrews, SeaWorld’s expert, followed the corporate line even in evaluating Tilikum’s actions that led to Ms. Brancheau’s death. Despite SeaWorld’s repeated assertions that Ms. Brancheau followed all protocols correctly and did not miss any precursors, Mr. Andrews ultimately placed responsibility for her own death on Ms. Brancheau. In the report Mr. Andrews prepared for this proceeding, he writes:”

“In my professional opinion, two circumstances led to Ms. Brancheau’s death. First, her hair was long, loose, and flowing out on the surface of the water and drifted into contact with Tilikum’s rostrum and mouth. The sensation of the floating hair was something with which he was not familiar and, not having hands, he grasped the hair with his mouth in what was likely a curious manner. Second, his curiosity with the hair led him to pull the hair out away from the pool ledge and Ms. Brancheau’s body was pulled out along with her hair. Once she was in the water, Tilikum had a new object with which to play. From the moment he pulled her into the water until she drowned, Tilikum was never aggressive towards her. . . . The only thing that led to this event was a mistake made by Ms. Brancheau in allowing her long hair to float out into an area that Tilikum could grab in his curiosity.” ~ SeaWorld expert Jeff Andrews

Welsch continues- “Mr. Andrews testified he made the assumption that Tilikum grabbed Ms. Brancheau by the hair based on comments made to him by Mr. Tompkins, who did not witness the event. Mr. Andrews did not speak with eyewitnesses, he did not review the investigation file of the Sheriff’s Department, and he did not read the autopsy report. He accepted without question that Tilikum grabbed Ms. Brancheau by the hair (and not by the arm, as eyewitness Fredy Herrara testified).”

Despite the claims of SeaWorld’s “expert’, Dawn’s ponytail remained high and dry just seconds before the take-down.

“This scenario fits within SeaWorld’s narrative that its killer whales are always predictable and all of their behaviors have identifiable precursors. Mr. Andrews followed the philosophy of SeaWorld that its trainers’ deaths and injuries are due to mistakes made by the trainers.”

“Mr. Andrews, based on no factual information, theorizes Tilikum grew curious at the unfamiliar sensation of Ms. Brancheau’s hair, and grasped it with his mouth. Under cross-examination, Mr. Andrews admitted he did not, in fact, know whether or not Tilikum was familiar with floating hair. Ms. (Kelly) Flaherty Clark’s testimony directly contradicted Mr. Andrews’s opinion. She testified that Tilikum had been exposed to long hair ever since his arrival at SeaWorld in 1992.”

“The court determines Mr. Andrews’s opinion that Tilikum grabbed Ms. Brancheau by the hair out of curiosity because he was unfamiliar with it is speculative and has no basis in fact. The court accords it no weight.” (emphasis added)

These excerpts are just the tip of the iceberg detailing the culture at SeaWorld which has led to several deaths and numerous injuries. The full text of the DECISION AND ORDER issued by Judge Welsch can be read below at the end of this post or you can download it HERE in PDF format. Anyone interested in learning the true nature of SeaWorld’s corporate culture, much of which has never been available publicly, is encouraged to read the ruling in its entirety.

In their very limited (and somewhat desperate) response to the ruling, Jim Atchison, president and chief executive officer of SeaWorld Parks & Entertainment told the Orlando Sentinel: “We have maintained all along that the allegations of ‘willful’ were meritless and are vindicated that the judge agreed. The company does disagree with some of the judge’s interpretation of the evidence, and is still exploring if further action is necessary.”

If SeaWorld indeed appeals the ruling, it would set up the ultimate political showdown in Washington. “SeaWorld is owned by the Blackstone Group, a huge venture capital firm run by billionaire Stephen Schwarzman – an avid backer of Mitt Romney who once compared Obama’s economic policy to that of Hitler”, David Kirby tells us.

“Killer whales are not known to attack humans in the wild. There are no known cases of killer whales killing humans in the wild. The four known human deaths caused by killer whales occurred when humans entered pools occupied by captive whales. As far as the court can tell, all known injuries to humans have occurred from interactions with killer whales in pools. Once a trainer is in the water with a killer whale that chooses to engage in undesirable behavior, the trainer is at the whale’s mercy. All of the emergency procedures, nets, underwater signals, and hand slaps are useless if the whale chooses to ignore them, as happened in the deaths of A(lexis) M(artinez) and Dawn Brancheau.” ~ Administrative Law Judge Ken Welsch

In the end, the greatest legacy of the tragedies of Dawn Brancheau, Alexis Martinez, Keltie Byrne, Daniel Dukes— as well as for Tilikum and Keto— may be a better future for all captive and exploited animals and improved safety and enlightenment for animal trainers and entertainers. Let’s not let their memories, lives, and deaths be in vain— all for the sake of entertainment. After all, there is A Better Way to See Orcas.

Full text of the DECISION AND ORDER issued by Judge Welsch:

View this document on Scribd

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The Orca Project has been archiving all of the latest developments, testimony, links, documents, video, etc on our SeaWorld vs OSHA page. You are encouraged to check there often as we will be providing frequent updates with the latest news and information. You can access the page at any time by visiting www.theorcaproject.com and click on the “SeaWorld vs OSHA” tab. You can also follow us on FaceBook and Twitter (@TheOrcaProject) for up-to-date reports.

For more on the Judge’s ruling, please visit:
Shamu Show Smackdown ~ Tim Zimmermann, Outside Magazine
Landmark Decision in OSHA v SeaWorld Case ~ Voice of the Orcas
Judge: SeaWorld’s trainers must be protected from killer whales ~ Elizabeth Batt, Digital Journal
SeaWorld found responsible in the case of trainer Dawn Brancheau’s death ~ Candace Calloway Whiting, Seattle PI