At what cost should the show go on?
SeaWorld continues to fight against a ruling given by OSHA back in August 2010 that officially cited the marine park for safety violations following the death of trainer Dawn Brancheau. Here we provide the week’s overview and accompanying media reports to summarize the conclusion of the hearing and await the judge’s ruling.
Tuesday, November 15th
The second week of the hearing began with two SeaWorld California trainers (Ken Peters and Brian Rokeach) and an executive (Mike Scarpuzzi) being called to the witness stand and whose testimony continued to erode SeaWorld’s claims that it provides a safe and predictable environment for its trainers. Peters was injured in 2006 by a female orca, Kasatka, at the San Diego location when he was repeatedly held underwater for extended periods of time. By stating that SeaWorld has had no problems caring for any of their whales after they temporarily banned all trainers from entering the water after Dawn Brancheau's death, Peters’ testimony indirectly supported OSHA’s recommendations to keep trainers from unprotected waterwork with the orcas.
Since 2006, SeaWorld, California has three ‘dry work only’ whales (Orkid, Kasatka and Ulysses), and all three SeaWorld California staffers independently testified that this in no way has harmed the quality of the husbandry and veterinary care they are able to provide them. This collective testimony undermines SeaWorld Florida’s argument that ‘water work’ is essential to properly care for the whales. This trainer testimony also clearly established that prohibiting ‘water work’ does not affect the animal’s ability to perform, despite other SeaWorld officials having testified that trainers need to get back into the water so they can adequately care for the animals and build up their social relationships.
The ‘willfull’ citation issued in August 2010 contains two separate elements: feasible and acceptable abatement measures specifically for Tilikum; and specifically for the other orcas at SeaWorld Florida. For Tilikum, where trainers are only allowed ‘dry work’ (in the water below the knees), OSHA has recommended no contact unless protected by a physical barrier. For the other orcas, neither ‘dry work’ nor ‘water work’ is recommended unless trainers are protected through physical barriers or other measures to provide the same protection to trainers. Administrative law Judge Ken Walsh said whatever decision he makes will only apply legally to SeaWorld's Orlando park, but it will have repercussions for all SeaWorld parks.
Wednesday, November 16th
As OSHA rested its case, SeaWorld’s lawyer tried to have the case dismissed but was unable to persuade the judge to immediately dismiss the citation issued by OSHA, forcing the marine park to begin summoning witnesses in its own defense. Following a total six days of testimony from witnesses called by the OSHA, SeaWorld argued that the federal agency had failed to prove that SeaWorld had "willfully"violated workplace-safety laws or that forbidding trainers from having close contact with killer whales, as OSHA has recommended, is a reasonable safety measure.
SeaWorld lawyers said OSHA could not simply forbid a company from engaging in an activity, but instead had an obligation to outline a realistic way of safely accomplishing it. OSHA's recommendation calls for trainers to be protected by a physical barrier or some other means that provides the same level of protection— a standard that could effectively prevent trainers from being in the water with the park's killer whales, a practice known as "water work." OSHA says training alone is not enough to keep trainers safe.
In addition, in a somewhat shocking move, SeaWorld attorneys asked the judge not to consider her death in his ruling, because it happened at the conclusion of a "Dine with Shamu" show. Attorney Carla Gunnin said even though there was still a crowd, "the announcer had already told them the show was over." This is an important distinction in the case because the timing of the death is important, because OSHA's citation only deals with trainers interaction with whales during shows. OSHA attorneys maintained their claim that SeaWorld had turned a blind eye to safety just for the sake of a show.
Thursday, November 17th
OSHA continued to cross-examine SeaWorld Florida representatives in order to clarify that what happens in one park is relevant and related to all the other SeaWorld parks. SeaWorld Florida continued to insist that its trainers, protocols and procedures were superior to the other SeaWorld parks and that what happened in 2006 in California to Ken Peters and 2009 at Loro Parque in Tenerife (the death of trainer Alexis Martinez by a SeaWorld orca, Keto) was not at all relevant to SeaWorld Florida.
OSHA also suggested that the only reason no lengthy suspension of ‘water work’ and no major changes were made in the safety protocols after the incident at Loro Parque was because there was no publicity or media surrounding it. He suggested that the reason big changes were made after other serious orca-trainer incidents occurred at SeaWorld parks in 1987, 2006 and 2010 was because for each of these incidents, there was a huge wave of media attention after the incident. This wasn’t true for the death of trainer Alexis Martinez, where very little information was made available to the public and media after the incident.
The judge also questioned SeaWorld how important ‘water work’ is to the show, and SeaWorld testimony stated not only was it an essential element for animal health and educational reasons, but also because it has economic value. SeaWorld essentially stated for the record that ‘water work’ is about business.
Friday, November 18th
The concluding day of the hearing was primarily focused on examining SeaWorld’s claim that close contact with orcas is necessary for their health and wellbeing. SeaWorld veterinarian Chris Dold claimed that the trainers’ “relationship” with the whales is key to excellent veterinary care and that many procedures are done by the trainers in close contact with the animals. He also stated very clearly that there were no veterinary procedures that required anyone to be in water more than knee-deep and that the quality of care SeaWorld has provided to the orcas since February 2010 (when ‘water work’ was suspended) and for the ‘dry work’ orcas before February 2010 (trainer Dawn Brancheau’s death) has continued to be excellent. OSHA contended that veterinary care can continue without ‘water work’ and with protected contact, thereby successfully implementing methods of abatement that will not materially harm SeaWorld’s business.
Procedurally, the judge will allow each side to submit their final briefs and arguments within 45 days of the hearing transcripts being finalized and distributed for review. Transcription could take weeks, and after the submission of final briefs and arguments, it may take the judge a few additional months to announce his decision. At that time, both parties could appeal the decision. OSHA has recommended that SeaWorld trainers never again be allowed to be in close contact with orcas unless shielded by a barrier or some other mechanism providing a similar level of protection.
Whatever the outcome, WDCS believes the hearing has forced SeaWorld to expose the darker reality of orcas in captivity, one where the health and welfare of both orcas and trainers are compromised. WDCS believes the only conclusion that can be drawn from the hearing is that orcas do not belong in captivity in the first place.