osha v seaworld trial transcript

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CARLIN ASSOCIATES (216) 226-8157

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UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

----------------------------------- x))

SECRETARY OF LABOR, ))

Complainant, ) OSHRC DOCKET) NO. 10-1705

-vs- ))

SEA WORLD OF FLORIDA, LLC, ))

Respondent, )))

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TRANSCRIPT OF PROCEEDINGSVOLUME I.

Before: Judge Ken S. WelschDate: Monday, September 19, 2011

9:00 a.m.Place: Siminole County Court House

1101 East First StreetSanford, Florida 32771

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APPEARANCES:On Behalf of Complainant:

JOHN BLACK, ESQ.TREMELLE I. HOWARD-FISHBURNE, ESQ.U. S. Department of LaborOffice of the Solicitor61 Forsyth Street, SWSuite 7T10Atlanta, Georgia 30303(404) 302-5435

On Behalf of Respondent:CARLA GUNNIN STONE, ESQ.Constangy, Brooks & Smith, LLCSuite 2400230 Peachtree StreetAtlanta, Georgia 30303-1557(404) 525-8622

On Behalf of Intervenor:GEORGE COE, ESQ.JON L. MILLS, ESQ.KAREN DYER, ESQ.121 South Orange AvenueSuite 840Orlando, Florida 32801407-425-7118

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I N D E XWITNESSES

Name Direct Cross Redirect RecrossFlaherty Clark 32 84 154 -

---o0o---EXHIBITS

Complainant's Description Marked AdmittedC-1 Animal Training SOP 50 51Respondent's

(None)

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P R O C E E D I N G SMorning Session9:00 a.m.

JUDGE WELSCH: Let's go on the record.This hearing is convened in the case of Secretary

of Labor versus Sea World of Florida, LLC. The DocketNumber is 10-1705. The location is Sanford, Florida.The date is September 19, 2011.

Let the record reflect that the hearing is beforeJudge Ken Welsch of the Occupational Safety and HealthReview Commission.

Let me just say this: There is no issue before meregarding whether or not the whales should be held incaptivity. Also, there is no issue before me as towhether or not Sea World was responsible for the deathof Ms. Brancheau.

The issues before me solely involve the OSHAcitations that were issued, the serious, the willful andthe other than serious citations that were issued onAugust 23, 2010, involving an inspection at the SeaWorld Park, located at 7007 Sea Harbor Drive, Orlando,Florida.

If I understand it, all the alleged violations andproposed penalties and classifications are at issuebefore me.

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Would the parties enter their appearance for therecord, please? Representing the Secretary of Labor?

MR. BLACK: Good morning, Your Honor. I'm JohnBlack, and I work in the Office of the Solicitor,Atlanta, Georgia, here this morning representing theSecretary of Labor in this case.

JUDGE WELSCH: Part of the test is you have togive your whole address.

MR. BLACK: Our address is 61 Forsyth Street,Southwest. I believe we're in Room 7T10, Atlanta,Georgia 30303.

JUDGE WELSCH: And your telephone number?MR. BLACK: 404-302-5435. I hope there are no

more difficult questions.JUDGE WELSCH: And who is sitting with you?MS. HOWARD-FISHBURNE: Good morning, Your

Honor. Tremelle Howard-Fishburne, here on behalf of theSecretary. I'm also located at the same address andtelephone number as Mr. Black.

JUDGE WELSCH: Thank you.And, representing Sea World of Florida?MS. GUNNIN: Yes, Your Honor. Carla Gunnin for

Sea World. My address is 230 Peachtree Street, Suite2400, Atlanta, Georgia 30303, Telephone 404-525-8622,and I'm with the firm of Costangy, Brooks & Smith.

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And to my left, I have Kelly Flaherty Clark. Sheis my corporate representative, and I also have ourexpert sitting at the table, Mr. Jeff Andrews, and alsoa paralegal, in-house for Sea World.

JUDGE WELSCH: And representing the Intervenor?MS. DYER: Good morning, Your Honor. My name

is Karen Dyer with the law firm Boies, Schiller &Flexner. And, with me is my colleague, Jon Mills, alsowith Boies, Schiller & Flexner. The address is 121South Orange Avenue, Suite 840, Orlando, Florida 32801,and the phone number is 407-425-7118. So, we had a longtime to think about that. (Levity)

JUDGE WELSCH: I just want to make sure. You'rehere as an intervenor for the limited purpose strictlyfor the privacy concerns of the family?

MS. DYER: That is correct, Your Honor.JUDGE WELSCH: Thank you. You're not here to

present any evidence, call witnesses, examine witnesses;that sort of thing?

MS. DYER: Correct. We're here solely for thepurpose of protecting privacy rights. We do not intendto present any evidence in this matter.

JUDGE WELSCH: Thank you.Mr. Black?MR. BLACK: And, Your Honor, I realize I

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probably should have introduced at the Counsel tablewith us is our government representative, which is LaraPadgett, and she's with OSHA and was the leadinvestigator in this matter. Her office is in Tampa,Florida. And also in the courtroom is our expert, Dr.Dave Duffus.

JUDGE WELSCH: I'm assuming there's no issuebefore me regarding jurisdiction and coverage. That'sall been stipulated to?

MS. GUNNIN: Yes, Your Honor.JUDGE WELSCH: Mr. Black?MR. BLACK: I'm not aware of any issues.JUDGE WELSCH: Are there any other stipulations

that the parties have arrived at?MR. BLACK: Not at this time, Your Honor.JUDGE WELSCH: Let's deal with some preliminary

matters. Let me just deal with these fairly quickly.The Respondent's motion to exclude Dr. Duffus'

testimony, for right now, it's going to be held. As Iexplained to Counsel in chambers, I hold that until wedo the Daubert hearing when the expert is called as awitness. I will deal with that motion at that time.So, right now, that motion is being held.

The same with the Respondent's motion to excludetestimony of the witnesses, Mr. Ventre and Mr. Jett.

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I'm going to hold that until those witnesses if and whenthey're called and then we'll deal with that.

The Intervenor's motion for a protective order, Ihave explained that in chambers. I'm going to hold thatmotion also to the point if and when the Secretaryintroduces the video and then we'll take up the motionfor a protective order. But at this juncture, it's notknown whether or not that video is going to beintroduced.

The final motion that I'm aware of that I need todeal with is the Motion to Revoke Subpoenas of the threeindividuals from Sea World of San Diego. And, as I haveindicated, I'm denying the Motion to Revoke theSubpoenas on the basis that the subpoenas that wereissued have a nationwide effect. The rule that Counselcites does not apply.

It's statutory under Section 12(i) of theOccupational Safety and Health Act, 29 USC 661(i), whichrefers to proceedings before the Commission, looks tothe National Labor Relations Act, Section 161, andSection 161 of the National Labor Relations Act makes ita corporate or nationwide subpoena power.

So, the Respondent's Motion to Revoke Subpoenas isdenied to that extent. I will ask, though, that Counselsee if there are alternative means if the Secretary does

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intend to call the three individuals from San Diego, Iwant to make sure if they are brought in here, that theSecretary does actually intend to have them called aswitnesses.

I also want to see if the parties might be able towork out some stipulations to obviate the need to evenhave them as witnesses. Also, I would like theSecretary to look at whether or not they need all three.Maybe one witness might suffice for the Secretary'spurpose.

Anyway, I'm just asking the Secretary to look intothat, and we'll deal with that later. But, in terms ofthe Motion to Revoke the Subpoenas, that's being denied.

Are there any other preliminary matters inaddition? I will ask is either party or the partiesasking that witnesses be sequestered?

MR. BLACK: We are, Your Honor.MS. GUNNIN: We join in this request, Your

Honor.JUDGE WELSCH: Anybody who has been subpoenaed

or knows that they are likely to be called as witnessesin this case, would you mind standing, please, ifthey're here in the courtroom?

(Witnesses Comply)JUDGE WELSCH: Save that. Now, Mr. Black, to

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remain in the courtroom, you have the complianceofficer. That's the designated representative for theSecretary?

MR. BLACK: That's correct and our expert, Dr.Duffus as well.

JUDGE WELSCH: Dr. Duffus? Is it necessary forDr. Duffus to be in the courtroom for his testimony asan expert?

MR. BLACK: It is, Your Honor.MS. GUNNIN: We have no objection.JUDGE WELSCH: Okay, Dr. Duffus may remain in

the courtroom.Would you rather sit up here? That's between you

and your Counsel.MS. GUNNIN: Judge, this is Mr. Chuck Tomkins.

He has been subpoenaed by the Secretary. He's alsogoing to be a witness in our case, but he's not arepresentative, so we'll find a place for him outside.

JUDGE WELSCH: Well, the Company'srepresentative is?

MS. GUNNIN: Ms. Flaherty Clark.JUDGE WELSCH: Ms. Flaherty Clark. And, your

expert is?MS. GUNNIN: Is Mr. Andrews.JUDGE WELSCH: Mr. Andrews? Does he need to be

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in the courtroom for his testimony?MS. GUNNIN: Yes, Your Honor.JUDGE WELSCH: He may remain in the courtroom.

So, there's only one person in the courtroom that'sbeing called as a witness in this case?

MS. GUNNIN: Yes, Your Honor.JUDGE WELSCH: Mr. Tomkins, I will ask you not

to discuss your testimony or what you anticipate yourtestimony to be with anybody else prior to yourtestimony, and after you testify, I ask that you notdiscuss your testimony with any other witnesses who maybe called later in the case.

But, for the time being, I would ask that Counsel-- I think there is a jury room outside, and maybe youcan show him where that is.

Does the Secretary think Mr. Tompkins is going tobe called early in your case?

MR. BLACK: He may very well be.JUDGE WELSCH: Can you show him, Ms. Gunnin?

(Witness Excused)JUDGE WELSCH: Before we proceed on, Mr. Black

or Ms. Gunnin, are there any other preliminary matterswe need to discuss?

MR. BLACK: Two things, one which I've justlearned about, but I'll deal with the one that I was

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aware of before.We had had a conference with Your Honor about the

scope of witnesses and whether witnesses were going tobe called once or whether they could be recalled byRespondent in their case. That was before the witnesslists were exchanged.

And, having seen now the witness lists by theparties, I think there are perhaps six or sevenoverlapping witnesses listed by the parties.

And, so we wanted to know definitively whether ifwe call a witness who is listed on both lists, you'regoing to listen to all the testimony from that witness,both Direct Examination by us as well as Sea World'sCross-Examination, if you will, and any additionalexamination that they have as part of their case becausewe just want to know what -- we don't think that's theappropriate way to do it.

We would ask that witnesses as is the normalprocedure, there's Direct and then there's Cross, andthen if they have something they want to say that'sbeyond our Direct, they call that witness in their case.

JUDGE WELSCH: I think the issues are such thatwhatever you ask on Direct is probably going to besubject to Cross-Examination. I'm not sure there'sgoing to be anything beyond unless you have a very fine

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tuned Direct Examination.I understand your point. I generally do like to

avoid the witnesses having to come back and forth. Iwould rather just get the witness -- but I will ask atthe finish of that witness's testimony, whether or notthat witness is now excused as a witness by bothparties. I certainly ask that after they've beenexamined. But, I understand your point in terms ofburden of proof to the extent that it goes beyond whatyou've asked on Direct Examination.

MR. BLACK: And, we don't want it to proceedthat way, but if it's Your Honor's ruling that that'show we're going to proceed, we want it to be consistentwith all the witnesses and not just left up to, well,can you come back --

JUDGE WELSCH: Let's cross that bridge when weget to it. I'm not sure how that's going to happen.Both Counsel are representing your clients, and if youfeel that objections need to be made, make yourobjections. You've already told me I was wrong byallowing it the other way, so that's fine.

MR. BLACK: I would never tell you you'rewrong.

MS. GUNNIN: Judge, we would prefer tostreamline it as much as possible because it does bring

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witnesses back and forth, and as you know, we're not inOrlando with this hearing, and it is a bit of adisruption.

JUDGE WELSCH: But, you understand, I'm certain,there's an advantage on your Cross-Examination of thewitnesses that if you're going beyond the scope of whatthe Secretary has asked about, then it should beswitched to more Direct Examination as opposed toleading questions.

MS. GUNNIN: Yes, Your Honor.JUDGE WELSCH: I think we can work all this out.Any other preliminary matters?MR. BLACK: Well, there is a matter that I just

learned about, and that is the witness we intended tocall as our first witness is not here, despite us havingnotified Sea World yesterday of our need to have himhere 9:00 today. That's Fredy Herrara.

MS. GUNNIN: And, Judge, as we have discussed,the Secretary has subpoenaed 35 witnesses in this case.In an effort to try to understand which witnesses needto be here so that we didn't have to absolutely shutdown Sea World today, we have asked for time and theynotified me yesterday afternoon. We can't just getahold of witnesses on a nonbusiness day, so we were notable to get ahold of Mr. Herrara.

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And, another witness that they asked for yesterdayis on vacation and not coming back until today.

What I had understood was that they wanted Ms.Flaherty Clark and Mr. Tompkins to be present in thecourtroom at 9:00, and those two witnesses are presentin the courtroom this morning.

So, we will try to get them here as quickly aspossible, but there are other witnesses available fortestimony this morning.

JUDGE WELSCH: So, Mr. Herrara will be madeavailable to the Secretary --

MS. GUNNIN: Yes, Your Honor.JUDGE WELSCH: -- sometime today?MS. GUNNIN: Yes, Your Honor.JUDGE WELSCH: Can the Secretary -- I know this

might not be what you planned in your order to callanother witness.

MR. BLACK: We can call another witness first.We would rather not have to rearrange our entireschedule. We would like -- Mr. Herrara, I assume hisshift started at 8:00 or 7:00, and I think from what hehad indicated during his deposition, it's now 10:00 soit could well be the three hours that we were asked toprovide notice.

I understand we have a number of Sea World

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witnesses on our witness list; and, thus, yesterdayafternoon we sent an e-mail to Counsel, saying, "We wantthese four people there tomorrow at 9:00, so we can beready to go," the four people being the two who arehere, Mr. Tompkins and Ms. Clark, and two others beingMs. Schaber and Mr. Herrara.

And, now, we're hearing at 9:45 for the first timethat they are not here, and we don't understand. So, wewant to prevent any recurrence, certainly, of this, andwe want to deal with the issue.

JUDGE WELSCH: Well, as quickly as you knowthe order of your witnesses, I would suggest you providethat to Ms. Gunnin, and then she can quickly identifywhether or not somebody will be available.

MS. GUNNIN: And, Judge, can I ask that he dothis in the normal business hours rather relying upon aSunday afternoon when we're all traveling?

JUDGE WELSCH: Okay, enough is enough.We're not going to go any further.

Any other preliminary matters? Do the Intervenorshave anything they want to say at this juncture?

MR. COE: No, Your Honor.JUDGE WELSCH: Does either party wish to make an

opening statement?MR. BLACK: Yes, Your Honor.

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JUDGE WELSCH: Okay, Mr. Black, go ahead.MR. BLACK: Thank you, Your Honor.Now, killer whales are large, powerful and

nondomesticated animals. I think everybody would agreewith that. They have a potential to cause seriousphysical harm or death to people who get near them. Idon't think there's any dispute about that.

Sea World's killer whale training program doesn'tchange the essential facts that harm or death to peopleresponsible. Their program doesn't eliminate what SeaWorld recognizes itself as, "a calculated risk." So,despite this calculated risk, until the day of Ms.Brancheau's death in February of 2010, Sea World ofFlorida, LLC, the Respondent here, allowed theirtrainers in show performances to swim with and ride onmost of Sea World's killer whales.

Now, despite this calculated risk, Sea World stillpermits today its trainers, during show performances, towork in close and unprotected contact with its killerwhales. This type of close unprotected contact has beenmade off limits with only one killer whale and that'sTilikum, the whale that killed Dawn Brancheau 19 monthsago.

Now, here the Secretary of Labor has charged SeaWorld with a willful violation under Section (5)(a)(1),

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and for permitting -- it has two parts to it. One isfor permitting unprotected contact with Tilikum duringshow performances.

We have also charged Sea World of Florida with awillful 5(a)(1) for permitting trainers during showperformances with whales other than Tilikum withoutphysical protection to get into the water with thekiller whales and also charging them with allowing themto get in close proximity with the killer whales whilethey're out of the water.

We expect the evidence is going to show that SeaWorld's primary method for trying to keep trainers safewas to train their trainers -- that was their principalway of protecting the trainers -- and Sea World trainsits trainers how to recognize and how to avoid potentialrisks, and then, in effect, tells them, "be careful."

We also expect that the evidence is going to showthat Sea World knows and that it knew in February of2010 that relying primarily on training the trainers tobe careful leaves gaps with the potential for seriousinjury or for death.

Sea World had trained its trainers to recognizewhat it calls precursors, and you're going to hear thatword during the hearing, I imagine several times;precursors to potential dangerous whale behavior and,

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then, hopefully, to make the correct decisions toprevent or avoid dangerous behavior after they haveidentified a precursor.

And, Sea World characterizes dangerous whalebehavior most often as aggressive. Sea World's safetyfor training the trainers still allows this calculatedrisk in at least three ways. Training the trainer isnot sufficient for providing protection against thatrisk.

First, the trainer might fail to observe theprecursor and, thus, miss the opportunity to avoid thedangerous behavior.

Second, the trainer might recognize the precursorand see it, but make decisions in real time that inhindsight are seen as incorrect and not being effective.

Third, a whale might engage in the dangerousbehavior without there being any previously identifiedprecursor.

So, those are the deficiencies in their safetyprogram that we expect the evidence is going to exploreand expose.

Now, Sea World says that Dawn was killed becauseSea World had never previously seen Tilikum grab anyoneand pull them into the water. We expect that theevidence is going to show that Sea World recognized this

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calculated risk to the trainers, including to Dawn butthey will --

JUDGE WELSCH: Mr. Black, I would like you torefer to her by her last name, please.

MR. BLACK: I'm sorry, Your Honor. Myapologies.

Sea World says that Ms. Brancheau was killedbecause they had never previously seen a whale namedTilikum grab and pull anybody under the water, but weexpect that the evidence is going to show that theyrecognized this calculated risk to trainers, includingMs. Brancheau, but they willfully chose not no changetheir reliance on this primary safety mechanism oftraining the trainers to avoid danger.

Now, we also expect that the evidence is going toraise a number of questions about Sea World'scredibility. For example, we expect the evidence toshow that Sea World agrees on the one hand that it'sirrelevant to safety as to how Tilikum actually pulledMs. Brancheau into pool by her hair versus her arm; andthen on the other hand to perpetuate a version of eventsthat she was definitely, definitively pulled in by herhair.

We expect that the evidence will show a number ofcontradictions that call into question Sea World's

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credibility as to what they say, and we would ask theCourt to listen carefully to that.

We'll also address the two other citations thatdon't involve the killer whales. We expect that theevidence is going to establish the serious violation offailing to have a guardrail on the stairs and an otherthan serious violation for failure to provideweatherproof enclosures for electrical outlets andreceptacles.

Now, in response to the Secretary's case, weexpect Sea World to offer evidence that purports to showthere's been only a limited number of injuries, and inlistening to this evidence, we think you should considerwhether the calculated risk of injury or death that SeaWorld had already recognized on the morning ofFebruary 24, 2010, was so low that they could disregardit as insignificant or treat it as if it wasn't a realrisk.

Additionally, and finally, we would ask that youlisten carefully to the evidence that Sea World isexpected to present on abatement to determine whetherSea World has shown the infeasibility of the Tilikum andwater work abatement measures that it's alreadyimplemented. That is, the evidence will show that SeaWorld has abated hazards as to Tilikum, the way that

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OSHA has proposed.As to water work, as to swimming with the whales

during performances, Sea World has also suspended thatfor the last 17 months. But, they claim that it is notfeasible to do that, to continue the suspension of thewater work.

Also, although Sea World hasn't implementedprotective contact with the other whales during shows,that is, providing a barrier or distance for them wheninteracting with them during shows, we would ask you tolisten and see whether you hear any credible evidence ofwhy Sea World can't use barriers or distance with theother whales during the show performances to make thoseshows with those whales as safe for trainers as theshows with Tilikum now.

So, I appreciate it. Thank you very much.JUDGE WELSCH: Let me just ask, the Secretary's

Citation 5(a)(1) goes solely to the trainers; onlyinvolves the trainers? Are you talking about during theshow performances?

MR. BLACK: That's a good question, Your Honor.JUDGE WELSCH: That's why I'm the Judge.MR. BLACK: OSHA has cited Sea World for these

hazards only during show performances.JUDGE WELSCH: So the time outside of show

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performances, I assume there's training and interactionsthat go on prior to the shows?

MR. BLACK: Correct.JUDGE WELSCH: You're saying the Secretary's

citations do not deal with those?MR. BLACK: While the Secretary believes that

there are hazards involved with those, and that itpresents some of the same hazards to the trainers, thosehazards have not been cited because that was not whatwas involved here, and Sea World has limited it to thatwhich it certainly thinks there's feasible abatementfor.

JUDGE WELSCH: And the two areas you're talkingabout are water work. Prior to Ms. Brancheau's death,Water work was the trainers are in the pool with thewhales?

MR. BLACK: Correct.JUDGE WELSCH: And what is dry work?MR. BLACK: Dry work would be any time that

they're not doing water work to my understanding.JUDGE WELSCH: That's when they're on the side

of the pool?MR. BLACK: They're on the side or you'll hear

evidence that there are some shallow ledges containingeither no or a slight amount of water, so they're not

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swimming with the whales.And you asked, Your Honor, whether this just goes

to trainers. I would have to look at the citation tosee whether the language says only with trainers. But,in fact, the trainers, to our knowledge, are the onlyones who would be interacting with the whales in waysthat we're saying are unsafe during show performances.So, there may be other folks, but we're not intending topresent evidence as to dangers to other people.

JUDGE WELSCH: Looking at the OSHA citation, itdoes in both Instance (a) and (b) refer to animaltrainer; animal trainers working with Tilikum and animaltrainers working with other killer whales other thanTilikum.

MR. BLACK: So that, then, obviously, is whatwe have limited the citation to.

JUDGE WELSCH: Okay, thank you.Ms. Gunnin, does Sea World wish to make an opening

statement?MS. GUNNIN: Yes, Your Honor, we do.Your Honor, I don't know how much you know about

Sea World. We filed a prehearing statement with you,and it set out our legal position, but I want to giveyou a little bit of information about Sea World itself.

The Sea World as a concept started about 50 years

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ago, the concept being it was to be a window to the seawhere ordinary people could learn and be inspired by theocean.

The purpose of the Company is to educate,certainly there's entertainment to guests, and thepurpose is ultimately that there is a better respect forthe marine environment and the ocean.

Sea World also rescues, rehabilitates and returnsmore marine mammals to the wild than any otherorganization. They spend millions of dollars in effortsof conservation, education, research and animal rescue.

Cumulatively, Sea World parks under the corporateumbrella of Sea World Parks and Entertainment, theparent company of Sea World of Florida, LLC, housesabout 70,000 animals, and they allow scientists from allover the world to come here to learn more about theiranimals and their exhibits.

Some additional points that I would like you topay attention to in this hearing, you're going to hear alot of reference to Shamu Stadium. Sea World Park isdivided up into areas. The area where the killer whalesare housed is a park called Shamu Stadium.

Mr. Black referenced the training of the killerwhale trainers. That's certainly a component, butthere's also a lot to the training of the killer whales

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themselves. There is a lot of methodology used, andyou're going to hear a lot about the training methodsthat Sea World uses to allow the killer whales toperform as they do, to allow them to submit to voluntarymedical and husbandry procedures, and you're going tohear how that goes hand in hand with the training of thekiller whale trainers, and those two are not exclusiveof one another.

They have lots of safety protocols and proceduresin place. Training has become -- a killer whale traineris a lengthy process, a lot of on-the-job training. Youdon't start day one at Shamu Stadium and go train akiller whale the next day. You have a lengthy process.We would like you to listen to all of those because allof those protocols ultimately equate to the safety ofthe trainers.

It's not just in Sea World's mind of their safety,but there are numbers to prove that. They have been inoperation a number of years now, and they have beenkeeping statistics of any kind of interactions they havewith killer whales, and you're going to hear testimonyabout the number of interactions, the number of injuriesthey must sustain, and we think that will be proof thatthere is a safe program.

It was an extremely unfortunate event on February

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24th. It was a life changing event to many people. Itaffected Sea World deeply, it affected, of course, Ms.Brancheau's family very deeply. But, I think the biggerissue is the efforts that Sea World has made prior tothat time to ensure trainer safety.

You're also going to hear about a prior OSHAinspection that was conducted by CAL-OSHA that occurredin 2006 and ended in 2007. CAL-OSHA, a state planagency under the umbrella of Federal OSHA to be at leastas effective as Federal OSHA, looked at the activity ofthe killer whales, and the killer whale trainers andwhether or not it was safe.

CAL-OSHA did not issue a citation. CAL-OSHAissued an information memorandum with certainrecommendations, and witnesses will testify that allthose recommendations and the recommendations that werefeasible to make and additional enhancements that weremade after that inspection.

You're also going to hear about an organizationcalled the Association of Zoos and Aquariums. It's alsoreferred to as the AZA. The AZA is an institution thataccredits these aquariums.

Sea World is an accredited institution. They havea couple of standards that do apply to the housing ofkiller whales, and you're going to hear about those

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standards and Sea World's compliance as being anaccredited organization by the AZA.

JUDGE WELSCH: Is Sea World considered anaquarium as opposed to entertainment?

MS. GUNNIN: They are a member of the AZA, theAssociation of Zoos and Aquariums. It's not just simplya theme park. Because of the education and theresearch, it would be considered an aquarium.

Judge, you're also going to hear about thefeasible abatement methods that have been offered byOSHA. Mr. Black says it's infeasibility. We would saythat it's the feasible methods that the Secretary mustprove in this case. It is a 5(a)(1). The burden is onthe Secretary to prove a feasible means of abatement.

The deposition testimony from OSHA revealed theirfeasible means of abatement was no longer to have closecontact with the killer whales. Because of the natureof caring for the killer whales, it would be impossibleto not have close contact with the killer whales. So,that actually does open up the case to a biggerconsideration.

That is, if the Secretary's position is -- and Ibelieve that Mr. Black did reference the position ofOSHA is not to have close contact during the shows, butthere's close contact when shows don't occur. There's

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more contact in the back area of Shamu Stadium, not infront of the public, not performing shows than there isperforming shows.

So, it would be inconsistent to take the positionthat it's okay to do that in the back as long as youdon't have people watching, but you can't do that in ashow. That doesn't seem to make a lot of logical sense.

The care of the animals involves not only medicalcare -- and we will have medical care testimony in thiscase, but also basic husbandry, and that's what theanimal trainers do.

And, you're going to hear about how the trainingthat they do with these killer whales is essential tothe husbandry and medical care that the killer whalesvoluntarily submit to.

So, Your Honor, we ask that you listen to thosepoints from Sea World's side in this case, and have abetter understanding of what Sea World actually does.

Thank you.JUDGE WELSCH: I will ask you, Ms. Gunnin, in

your prehearing exchange, I know you addressed theserious citation item, the railing.

MS. GUNNIN: Yes, Your Honor.JUDGE WELSCH: You did not address the other

than serious item. Is that still in contest?

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MS. GUNNIN: Judge, we have not withdrawn ourcontest on that at this time.

JUDGE WELSCH: So, both those items are still incontest?

MS. GUNNIN: They are still in contest, YourHonor.

JUDGE WELSCH: When did the Sea World ofOrlando facility start?

MS. GUNNIN: I'm going to have to confer onthat.

JUDGE WELSCH: The reason I ask that is, I thinkin response to the Intervenor's request, they mentionedthat Ms. Brancheau had worked, started there in 2002 or'4 when the Sea World of Orlando began. There was apredecessor, the way I understood it. I thought SeaWorld of Orlando dated further back than that.

MS. GUNNIN: Judge, Sea World in Orlando hasbeen in existence far beyond that. It's probably beenmaybe around '78 they actually started in Florida.

JUDGE WELSCH: It was something the Intervenorsaid in their response that Ms. Brancheau had startedafter the predecessor company and had been workingfull-time for Sea World in Orlando since they started,and that was in 2002.

MS. GUNNIN: She worked much longer than that.

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I think I can shed some light on that.What happened was that the Sea World Park has been

owned by different corporate entities, and it was at onetime owned by Clark, Praise Stefanovich, it was latersold to Anheuser-Busch, and then Anheuser-Busch wasacquired by a company called InBev, and then it was spunoff to the Blackstone Group. And, Sea World Park andEntertainment is its own corporate entity and then theother parks are legal entities under that corporateumbrella.

JUDGE WELSCH: I don't want to go too deep, butit kind of threw me when I read their response.

Did you all wish to say anything?MS. DYER: No, Your Honor.JUDGE WELSCH: Is there anything else we need to

take up? Before we start with the first witness, whydon't we take a ten-minute break, and then we'll callthe first witness after the break.

So, we stand adjourned until ten to.(Whereupon, a short recesswas taken off the record)

JUDGE WELSCH: Let's go back on the record.Does the Secretary wish to call her first witness?MR. BLACK: Yes, thank you, Your Honor.The Secretary calls Kelly Clark.

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JUDGE WELSCH: Ms. Clark?---o0o---

KELLY FLAHERTY CLARK,having been first duly sworn, wasexamined and testified as follows:

JUDGE WELSCH: Ma'am, for the record, wouldyou state your full name, spell your last name, andstate your address, please?

THE WITNESS: Sure. My name is Kelly FlahertyClark. My middle name is F-l-a-h-e-r-t-y C-l-a-r-k.

JUDGE WELSCH: And your address, please?THE WITNESS: My home address or business

address?JUDGE WELSCH: Whichever you feel more

comfortable.THE WITNESS: 7007 Sea World Drive, Orlando,

Florida 32821.JUDGE WELSCH: That is your business address?THE WITNESS: That is my business address.JUDGE WELSCH: Your witness, Mr. Black.MR. BLACK: Thank you, Judge.

---o0o---DIRECT EXAMINATION

BY MR. BLACK:Q. Good morning, Ms. Clark.

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A. Good morning.Q. How are you today?A. I'm doing well, thank you.Q. I just want to ask you some questions this

morning, obviously, about this case.You've been with Sea World since 1987?

A. Yes, I started with Sea World in 1987.Q. That was in March of 1987?A. March of '87.Q. And, you are the curator of animal training?A. Yes, I'm the curator of animal training.Q. And, you started in that position in May of

2008?A. That's correct.Q. And, before you became the curator of animal

training, you were the assistant curator of animaltraining; is that right?

A. That's correct.Q. And, that was in Whale and Dolphin Stadium?A. I was assigned to Whale and Dolphin Stadium.Q. And, there are different assistant curators

in different areas of the park; is that right?A. Yes.Q. And, so Whale and Dolphin Stadium, that's

different than Shamu Stadium which Ms. Gunnin referred

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to in her opening?A. Yes. There are four facilities at the park

that I'm currently overseeing. Whale and Dolphin is oneof the four animal training facilities.

Q. Just for the record, what are the four animaltraining facilities at the park?

A. We have a group of animals we call the animalambassador team. That group of animals does publicappearances in the park. They also go out frommarketing and a lot of outreach for educationalpurposes. And, also they go into the community, intoclassrooms and hospitals to visit small children. It'sa group of trained animals.

We have Sea Lion and Otter Stadium. Thatfacility performs a sea lion and otter show in the park.

We have a Whale and Dolphin facility thatperforms a Whale and Dolphin show in the park.

And our Shamu facility that does Shamu showsin the park.

Q. And, the Shamu shows, that's the killerwhales that we're dealing with in this case?

A. Yes.Q. And, you were the assistant curator at Whale

and Dolphin for approximately nine years?A. No, that's not correct. Actually, I was

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assistant curator for Whale and Dolphin for aboutfive years before. Before that, I was also an assistantcurator at Sea Lion and Otter Stadium.

Q. You're sort of soft spoken, and just so theCourt Reporter can hear -- I know it's hard to speakloudly if that's not our natural speaking voice. I tendto mumble myself.

A. I like that it's on the record that I'm softspoken.

Q. So, you spent nine years as an assistantcurator at Whale and Dolphin for five years and Sea Lionand Otter for four years?

A. The entire time that I was an assistantcurator, I worked very closely with the assistantcurator team, and really we all weighed in in all threefacilities.

Q. And, before you were an assistant curator,you were a supervisor?

A. Yes.Q. And that was at Shamu Stadium?A. Yes.Q. And also at Whale and Dolphin Stadium for

some of that time as well?A. Yes.Q. And, so you were in a leadership position, if

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you will, at Shamu Stadium from 1994 to 1998?A. My best guess is that's right.Q. In other words, you were a supervisor and

assistant supervisor?A. Yes.Q. Now, before becoming an assistant supervisor,

you also worked as a senior trainer, right?A. That's correct.Q. And, that was at Shamu Stadium?A. Yes, I was a senior trainer at Shamu Stadium,

and I was a senior trainer at those facilities as well.Q. At Whale and Dolphin Stadium and at Busch

Gardens, Tampa?A. Yes.Q. And, as a curator of animal training, that's

Sea World of Florida. That's not Sea World ofCalifornia or Sea World of Texas or anything?

A. That's correct.Q. And, you're responsible for all the four

stadiums, four stadiums or areas that we talked about,right?

A. Yes.Q. That would be Shamu, Whale and Dolphin, Sea

Lion and Otter and Animal Ambassadors?A. Yes.

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Q. So, your responsibilities are for the healthand well being of all the animals, right?

A. Yes.Q. That are in the collection that are within

the animal training department. That is, animals thatare trained in some way, right?

A. Yes, but that's certainly not my onlyresponsibility.

Q. Certainly, and I don't mean to suggestotherwise.

A. Okay.Q. That's one of your responsibilities?A. Yes.Q. And you're responsible for show performances?A. Yes, I am.Q. And, you're responsible for the training of

the animals' husbandry behaviors?A. Yes, I am.Q. And, you're responsible for all the people in

the animal training department and for theirprofessional development?

A. I'm responsible for their safety andprofessional development, yes.

JUDGE WELSCH: Excuse me, Mr. Black. Isthere anybody in here that's going to be a witness in

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this case? Some people just came in. Are you all goingto be witnesses? Do you know whether or not you'regoing to be witnesses in the case?

(No Response)JUDGE WELSCH: Okay, thank you.Go ahead, I'm sorry.MR. BLACK: Thank you, Judge.BY MR. BLACK:Q. And, now, at the Shamu Stadium today, there's

somewhere around 27 trainers?A. That's a good guess.Q. There may be one or two more?A. Right. Since my deposition, it may have

changed by one or two, but it's around that number.Q. And, today, there are seven killer whales at

Orlando Park?A. Yes.Q. How about at other parks? At California, how

many killer whales do they have?A. There are six killer whales in California and

six killer whales in Sea World of Texas.Q. And, there are also a number of Sea World

owned killer whales at a facility in the Canary Islands?A. Yes.Q. And, that facility is known as Loro Parque?

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A. Yes.Q. And, tell me if I'm spelling this right for

the Court Reporter to get it down. L-o-r-o and thesecond word is P-a-r-q-u-e?

A. Yes.Q. Spanish for Parrot Park?A. I don't speak Spanish. I'm sorry.Q. And Sea World has five whales at Loro Parque?A. There are five whales at Loro Parque.Q. Are they all Sea World-owned whales?A. One of the whales at Loro Parque is a young

calf, and I'm not the person to speak to regarding whoowns the whale.

Q. So, the four adult whales -- would you callthem adult whales?

A. Yes.Q. The four adult whales are Sea World-owned

whales?A. To my knowledge, yes.Q. And, then, Sea World has a whale that's at

Marine Land in Niagara, Canada?A. Ikkika.Q. Did you say "Ikkika"?A. I'm sorry, I-k-k-i-k-a.Q. You didn't do anything wrong. I was just

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trying to make sure I know how to pronounce it andpronounce is properly.

And, in your position with Sea World that wehave talked about, you worked closely with seniortrainers, right?

A. Yes.Q. And, you still work closely with senior

trainers?A. Yes.Q. Including senior trainers in Shamu Stadium?A. Yes.Q. And, you also as having been a senior

trainer, you have a good idea what the responsibilitiesof trainers are today; is that right?

A. Yes.Q. And, a good idea of what the responsibilities

were when you were a senior trainer in the mid-1990's?A. Yes.Q. Now, one of the things that goes on at the

stadiums is show performances?A. Yes.Q. And, tell us what a show performance is, or

do you use the term show performance or performance?A. A show performance is a series of

interactions with our animals that are much like any

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other interactions with our animals. The differencebetween a show performance with our animals and anyother interaction is that there is an audience andthere's a sound system.

Other than that, you'll find pretty much alot of the same components. When it comes tointeracting with our killer whales, a show performanceis much like everything else that happens in thestadium.

Q. But, it's not the same as what happens in thestadium at other times, right? There may be overlap,but it's not the same thing as the interactions notduring show performances, right?

A. I would say if you came to the stadium, andyou watched a session, and you if you were the onlyperson there, it's exactly like a show except forthere's no music and there's not a bunch of peoplecheering. You see a series of interactions with thetrainers.

Q. Well, okay, maybe we're having --A. You can help me.Q. I don't want to be confusing, but the show

performances are put on to show the guests at the parkvarious behaviors that the whales can do, right?

A. And, there isn't any difference between the

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objective of the show and the objective of the otherinteractions we do.

Q. No, I'm asking at the show, you display thoseanimals performances to the public, right?

A. Yes.Q. And, you choose which animal behaviors,

tricks, whatever you want to call them, you choose whichones to show to the public, right?

A. We will make a plan before a show. The planwill have different components, different animals ordifferent behaviors. What you would see in the show,however, will contribute to the training in the back.What happens in the back will contribute to the trainingin the show.

Q. I'm not asking that question, though. I'mnot trying to confuse you. I'm asking about what goeson actually in a show?

A. What goes on in a show performance?Q. The show performance. For example, you don't

do gastric procedures on whales in the show in front ofall the folks in the large Shamu Stadium?

A. To be honest with you, there are behaviors wedon't do during a show because they wouldn't besomething that most of the audience would enjoy and itwould affect them like seeing some of the other

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behaviors that we do. However, the training that we doin the shows contribute to our ability to train agastric sample.

There are several behaviors going on during ashow, and the behaviors that are going on in the showcontribute to our other training.

While I might not ask an animal to hold theirmouth open while I put a tube in to collect the gastricsample, I very well may use a show opportunity to havean opportunity to reinforce the animal for holding hismouth open for an extended period of time or for takingan approximation of it.

I often do that during the show because theshow environment is a very positive one, and it cancontribute to their training for that behavior. While Iwouldn't put a gastric tube, you will very often see apresentation during the show where we're asking theanimal to roll over and put their tail into my lap.This is rehearsal for a voluntary --

MR. BLACK: Your Honor, if I might, I wouldmove to strike everything about the answer that wasn'tan answer to my question.

JUDGE WELSCH: Overruled. Mr. Black's question,I think, just goes to what behaviors are you doingduring a show?

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Is that the kind of question you're asking?MR. BLACK: I only asked about one particular

behavior and whether it was done during a show, and thenI got a litany --

JUDGE WELSCH: What was the behavior?MR. BLACK: I asked about gastric procedures

and whether those were performed during the show.JUDGE WELSCH: Overruled. Let's go on. Go

ahead.BY MR. BLACK:Q. And, I know you perhaps -- I don't know

whether you're nervous or whatever, but I would ask ifyou could listen to my questions, and just kind ofrather than telling what you think the Judge needs toknow, because you will have an opportunity on yourexamination by Sea World, limit it to answering thequestions I'm asking.

A. All right.Q. And, so in answer to my question, there are

only certain behaviors that Sea World chooses to put onor display during the show, and the answer to thatquestion is "yes"?

A. Am I allowed to ask you a question?Q. Certainly.A. Can you please define "certain behaviors" for

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me?Q. Well, you don't display all of the behaviors

that you have trained the whales to perform?A. That's correct.Q. So, you pick from that universe of behaviors

that the whales are capable of performing and selectcertain ones, I think you used the term that the publicwould like to see?

A. Yes. I select what the public would like tosee and behaviors that would contribute to the animal'sgrowth, the animal's development.

Q. And the repertoire of behaviors.JUDGE WELSCH: Are you, as a curator, the one

that decides on the show behaviors?THE WITNESS: I certainly don't map out every

single show for the trainers. My assistant curators andmanagement map out the shows.

JUDGE WELSCH: But it's under your supervision?THE WITNESS: It is.JUDGE WELSCH: You supervise the shows and what

behaviors you're going to show?THE WITNESS: Yes, I do.BY MR. BLACK:Q. Ms. Clark, it's true that safety is your

first and foremost responsibility?

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A. Yes.Q. And, part of that responsibility or primarily

that responsibility is making sure that the protocolsare adhered to; the protocols for safety?

A. Yes.Q. Now, if I might, the main part of safety is

training, right?A. The main part of safety is training animals

and training trainers. Is that what you're asking me?I'm sorry, "training" is very broad.

JUDGE WELSCH: The question is kind ofconfusing. Are you talking about safety for the traineror safety for the whales?

MR. BLACK: Safety for the trainers.BY MR. BLACK:Q. The main part of that is training the

trainers, and training the trainers how to train theanimals?

A. Yes.Q. So, the principal way that you keep trainers

safe is through training; a program of training thetrainers, if you will?

A. That's only one component. We train theanimals.

Q. It's only one component, but you train the

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animals through the training of your trainers to be ableto train the animals?

A. Sure, yes.Q. So, it's the primary way that you ensure

safety is the training of the trainers?A. Yes.Q. The key part if you will. It's the key part

of safety?A. You've defined it four different ways.Q. Do you disagree?A. The most important, the primary --Q. Do you disagree with those adjectives?A. I do not.Q. Then, we're on the same page.

Indeed, you train trainers on standardoperating procedures or SOP's, right?

A. Yes.Q. And, in fact, the SOP's, if you will, that's

the main component of Sea World's written training tothe trainers?

A. Yes, the written training is a component andthe SOP's. The manuals are the main component. Thereare a lot of written components.

Q. But, the SOP's are the main thing you relyupon in training the trainers?

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A. I would say they're one thing. When we'retraining the trainers, we use a system of check off, andI'm not sure what you're referring to when you say ourSOP's. I don't know if you're referring to the manualthat has all the written operating procedures or all thedocuments that complement that manual when we're doingour training.

Q. The SOP's are a single document. It has SOPin the title, right?

A. Then, I would say that that is the readingmaterial that we base our check off procedures on.

Q. And, so that you would agree, then, thatthat's the main component of the written training of thetrainers. I'm not saying there aren't other kinds oftraining you provide the trainers, but the SOP's are themain written training that the trainers receive?

A. I would say it's a component of the training,written training they receive.

Q. It's not the main component of the writtentraining?

MS. GUNNIN: Judge, I think he has asked thatfour times.

MR. BLACK: I don't know that I've gotten ananswer.

JUDGE WELSCH: Overruled. Go ahead.

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Do you understand his question?THE WITNESS: What I'm having a hard time

understanding is whether he's talking about the SOPdocument which is something we ask everybody to read.But, there's a bunch of documents that complement thatthat the trainer learns. I just want to know if you'reincluding the check-off sheets.

BY MR. BLACK:Q. Well, the check-off sheets, they emanate from

making sure that the trainers are following the writtenSOP document and doing what's in there, right?

A. Yes.Q. And, the trainers actually sign a document

that indicates that they have read the SOP, right? Thestandard operating procedures.

A. Yes, they do.Q. And, they sign that document because Sea

World wants to record, have a record that the employeeshave read it, right?

A. Yes.Q. And, the document that they sign, in it the

trainers acknowledge that their only skills are the keyto being safe, right?

A. (No audible response).Q. Maybe I should get that document for you. I

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have it here.JUDGE WELSCH: Mr. Black, why don't you just

leave it all in there right now. You're talking aboutExhibit 1?

MR. BLACK: Actually, it's Exhibit 2. Excuseme, it's Tab 2.

JUDGE WELSCH: Tab 2.MR. BLACK: It's in that first binder.(Whereupon, Complainant's Exhibit C-1 was markedfor identification and entered into the record).BY MR. BLACK:Q. Ms. Clark?A. Yes.Q. You have in front of you what has been marked

for identification as Exhibit C-1, and this is thewritten animal training SOP for Sea World of Orlando,right?

A. Yes.Q. Or at least this is a copy of what was in

effect on February 24, 2010, correct?A. Yes.MR. BLACK: We would offer C-1 into evidence,

Your Honor.MS. GUNNIN: No objection, Your Honor.JUDGE WELSCH: C-1 is admitted without

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objection.(Whereupon, Complainant's Exhibit C-1, previouslymarked, was admitted into evidence)BY MR. BLACK:Q. And, if you would turn to the very last page.A. (Witness complies). I just read it.Q. So, the last page which --MR. BLACK: And, Your Honor, just so you

understand how we've marked documents, there are Batesnumbers in the lower, right corner, and so the Batesnumber on this on the last page is Sea World 1108.

JUDGE WELSCH: Okay, thank you.MR. BLACK: And just for the record for the

Court Reporter, the first page of this document is SeaWorld 959 so it runs that Bates number range.

JUDGE WELSCH: Okay.BY MR. BLACK:Q. So, this last page is the page that the

employees sign, right?A. Yes.Q. And, they sign it to document that their own

skills are the key to being safe.Do you see the sentence that starts:"I understand that my skills, experience and

application of training techniques -- -"

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A. "Paired with my ability to evaluate animalbehavior, the key to safe trainer/animalinteractions."Q. So, you would agree with me that that really

means that their own skills, skills being anaccumulation of their experience and applying andevaluating the animal behavior and training techniques.Yes?

A. They acknowledge that their skills contributeto a safe environment.

Q. That they're the key to being safe; that'sthe key to safe trainer/animal interactions, right?

A. Yes.Q. And, this also documents that as part of

that, that their ability to evaluate behavior is part ofthe key as well to being safe, right?

A. Yes.Q. And, it also documents that the trainers

realize that there's an inherent risk or a calculatedrisk in being a trainer, right?

A. Yes.Q. And, there are calculated risks in being a

trainer. You would agree with that?A. I would agree with that.Q. So, then, you would agree that the key to

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safety is training?A. I agree.Q. And, trainers are trained to protect

themselves. I mean, that's what this SOP is about,right; training the trainers to protect themselves?

A. The trainers are trained, they are equippedwith the knowledge to carry out safe animalinteractions.

Q. "Equipped" meaning they're trained so thatthey can work with animals in a way that is safe for theanimal but also safe for them?

A. Yes.Q. And, the trainers are trained about different

scenarios or scenarios, depending on your preference onhow you say that word, right?

A. Yes, they are.Q. And, they're trained about what has happened

before; that is, the experience with whales previouslyand what Sea World has seen?

A. Yes.Q. And, part of the training is to train the

trainers to see what Sea World calls precursors, right?A. Train the trainer to recognize different

kinds of behavior. Some of those behaviors areprecursors to other behaviors.

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Q. No, I'm not saying that they're not trainedon other things, but part of the training is to see whatSea World refers to as precursors, correct? Part.

A. A precursive behavior is a behavior thathappens before another behavior. So, I want to makesure that I understand your -- it's any other behaviorthat's a precursor.

Q. And, I appreciate your not wanting me tomisuse the term. I'm using the term that Sea Worldused, which is training the trainers to see precursors.Then, we can talk about a definition of "precursor."

A. To recognize precursive behavior.Q. And precursive behavior or precursors doesn't

need to be -- I've seen a lot of documents that sayprecursors. Is that different than precursive behavior,or are those interchangeable?

A. I was raised with a doctorate in English, soI can't see using it that way.

Q. I think I'm going to flunk your class if Ihave to --

A. I would be comfortable using precursors ifyou would like me to use it that way.

Q. I just want to make sure that when you sayprecursive behavior, that's the same as what thedocuments mean when they say precursive?

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A. Yes.Q. Fair enough.

Now, the precursors you started to define,these are actions by the killer whales that suggest orsignal that the whale may do something that isn't wantedor desirable?

A. That's where I think the definition is off,but I think I understand what you're saying. So,precursors are not only associated with undesirablebehavior. Precursors are precursors to any kind ofbehavior, something that happens before a behavior.

So, what I think you're talking about isprecursors to undesirable behavior.

Q. In the safety realm, in the safety context,the safety of the trainers, precursor would beundesirable behavior?

A. Okay.Q. Well, I don't want you to -- I mean, what

part of that do you disagree with?A. I'm a behaviorist and precursors are not

associated with undesirable behavior, but I understandthat you're trying to --

JUDGE WELSCH: You're making a distinctionbetween the undesirable behavior and the behavior thatpredates the undesirable behavior?

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THE WITNESS: Any behavior, right.JUDGE WELSCH: Or any behavior.THE WITNESS: Any behavior. Precursor can

predate any behavior. A precursor to aggressive or aprecursor to unwanted behavior, yes, we train ourtrainers to recognize precursors to unwanted behavior.

BY MR. BLACK:Q. And, that's one of the key parts of keeping

the trainer safe?A. Yes.Q. Now, the trainers don't memorize their

training materials, do they?A. No, they do not.Q. I mean, I could quiz you on this and probably

find some details that you may not have in your memorybank, right?

A. Absolutely.Q. And, you would agree with me that trainers

are humans and they make errors?A. Yes.Q. Sometimes. They make mistakes?A. Yes.Q. And, Sea World has incident reports that are

replete, to use an English word, I suppose or a bigword, that are replete with trainer errors, right?

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A. There are, yes.Q. And, trainer errors in the incident reports

that led to undesirable whale behavior?A. Yes.Q. Or even aggressive whale behavior?A. Yes.Q. And, so making errors, that's just part of

human nature. You don't disagree with that?A. No.Q. And making an error, a trainer making an

error that could result in harm to the trainer?A. Yes.Q. So, that trainer could make the wrong

determination or wrong judgement call, and that mightend up resulting in the whale doing something thatinjures the trainer, right?

A. The trainers that are interacting with thewhales that they are interacting with are well preparedto interact with the whales, so the frequency of atrainer making a bad call or missing a behavior cue isminimal.

Q. But, I'm not asking you about frequency. I'masking you about the consequence, and the consequence ofmaking an error could be that the trainer suffers harm?

A. That's something that we teach our trainers,

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yes.Q. And, now, harm could happen even if the

trainer doesn't make a behavioral judgement error,right?

A. Yes.Q. That is, the trainer might not make an error,

and the whale does something that is harmful to thetrainer, that the trainer hasn't been trained on?

A. I've been at Sea World reviewing for25 years, and in 25 years, I have reviewed onebehavioral incident that did not show something thatwould I have done differently. There weren't anyindicators in there of behavioral cues that were missed,environmental cues that were missed. In 25 years, I'veonly had that experience once.

Q. You're talking about Ms. Brancheau's deaththat incident of environmental cues?

A. Yes, I am.Q. But, when you evaluated her, you said that in

25 years, only once have you not been able to findenvironmental cues or errors. You're now talking aboutin hindsight after the incident has happened, right?

A. In my experience as a killer whale trainer,in 25 years, I've certainly been a part of manyinteractions with animals where we chose not to

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interact, where we chose to step away. I have alsoreviewed situations from extremely minor to the tragedyof February 24th last year, and so I've been involved inall of that.

Q. So, you would agree, though, that thetrainers, while you might afterwards adjudge that therewere environmental cues or other cues that the trainercould have picked up on, in fact, that's only in hindsight that that evaluation can be said with suchcertainty? Some instances, not every instance.

A. Yes, we're not going to say every instance.I would probably say at Sea World of Florida, before thetragedy with Ms. Brancheau, we had gone five yearsbefore even reviewing, and that is how well equipped thetrainers are and how safe they're interacting with thekiller whales.

Q. I'm not asking about numbers of incidentreports and things that Sea World decided are reportableincidents. I'm only talking about the smaller pointthat sometimes trainers do their best to try and followall of their training and still end up in the harshlight of analysis afterwards having made errors?

A. Sure.Q. And, you know that the harm that could come

to a trainer includes that a trainer could be grabbed by

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a killer whale's mouth?A. Yes.Q. A trainer could be physically displaced by a

killer whale?A. Yes. Can you go back, you said the harm.

Can you repeat that?Q. I'm sorry?A. You said the harm for a killer whale was

because?Q. I said that the harm that could result --A. Okay, yes.Q. -- from the errors. It could be grabbed,

right?A. A trainer could be grabbed, yes.Q. Or a trainer could be physically displaced by

the killer whale?A. Yes.Q. And, that displacement, that can happen in

water?A. Yes, it can.Q. With the trainers in the water with the

whale. That could happen on dry land -- and I use thatterm loosely, but that could happen around the edge ofthe pool, right?

A. Yes.

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Q. And killer whales, they could come out andthey could bump into you and displace you while you'reon the edge of the pool?

A. Yes.Q. And, in fact, you've had incidents where that

has happened?A. Yes.Q. And, those incidents may have been the result

of trainer error, right?A. Yes.Q. Or perhaps it was something totally

unexpected?A. I have not reviewed an incident where I

couldn't find a reason that it was completelyunexpected.

Q. Well, I guess this is definitional when wesay unexpected. You would agree that it could have beenunexpected to the trainer acting in the moment?

A. To that trainer?Q. Yes.A. Who had maybe missed a behavioral cue, yes.Q. You would agree with that, wouldn't you?A. Yes.Q. If you disagree with something that I say or

don't understand --

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A. I will let you know.Q. -- while you're soft spoken, I don't think

that you're so shy that you're not going to let me know.And, a killer whale could pull you into the

water and could cause injury to you in the water?A. Yes.Q. And, there's also a potential that a killer

whale could drown you, right?A. Yes.Q. And, at Sea World, in fact, they recognize

that killer whales are -- and tell me if you disagreewith this -- a large, powerful and potentially dangerousanimal?

A. Yes.Q. In fact, that's written in several places in

Sea World's documentation, right?A. Yes. They're large, powerful, dangerous

animals like any large animal is.Q. I mean, that's in the Shamu Stadium manual,

for example?A. Yes, it is.Q. So, killer whales, you said they often weigh

6,000 pounds or more, right?A. Yes, they do.Q. And they have mouths?

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A. Yes, they do.Q. And they have tail flukes?A. Yes, they do.Q. They have longer lung capacity than humans

have for sure?A. Yes, they have more capacity for transfer.

Yes, they hold their breath longer than a human beingcan.

Q. That's where I was going. In fact, you eventrain the trainers that if you're not safe around theseanimals, you might not go home. You might die?

A. I know exactly where you taking this.Q. From your deposition.A. From my deposition, yes.Q. Those were your words, right?A. Those were my words. It is making it very

clear to the trainers that their safety is my number onepriority, and I take it very seriously, and I expectthem to take it as seriously as I do and expect them tofollow those protocol.

Q. And, so to avoid the potential harm, thetrainer knows these precursors or precursive behavior,right?

A. Yes. We talk through many scenarios, wewatch the killer whales -- coachable, I'm sorry.

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Q. Trainable, I think would be the --A. Yes.Q. And, you have to see a precursor or

precursive behavior to be able to respond to it, right?You have to recognize it?

A. You have to be able to recognize everythingin the environment. The behavior may be of other whalesin the facility, it may be the weather, it may besomething else. You have to recognize every singlething that's going in your environment when you're infront of a killer whale.

So, it might not be the killer whale. Itmight be another thing going on in the environment thatyou would want to bring into your knowledge of theimmediate event.

Q. And I apologize for interrupting you, Iwasn't sure that you were finished.

So you would agree with me that thatenvironment, other whales in the environment, whetherthe other things you mentioned, those play into or thosecan be defined as a precursor, right?

A. No, I would not define them as precursors.Sorry.

Q. That's fine, that's fine.You would agree, however, that a trainer has

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to see a precursor or precursive behavior in order torespond to it?

A. No. What I'm saying is I might be workingwith killer whales in front of me, but exhibiting nosigns of behavioral precursors associated with unwantedevents, and I might choose that the environment haschanged such that I'm going to change the way I'minteracting with the whale.

Q. Okay, and I appreciate that thosedeterminations --

A. So, I don't have to see a precursor from thewhale I'm interacting with to change the way I'minteracting with that whale. I'm seeing something elsein the environment.

Q. Right, but if you see a precursor or if thereis a precursor, I'm sorry, then the trainer has to seeit or recognize it in order to be able to respond to theprecursor?

A. Yes.Q. I mean, that's sort of by definition, right?A. Yes.Q. If you don't see a precursive behavior, then

there's no way to respond to it. Would you agree withthat?

A. I agree with that.

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Q. I mean, it's common sense, right?A. But, it's also common sense that I'm not just

going to be looking at the whale in front of me. I'mgoing be acknowledging every single thing. It's commonsense for the trainer that you're going to acknowledgeevery single thing in your environment that willcontribute to this whale's behavior that's in front ofme.

Q. I mean, the trainers have an awfully lot ofthings that they have to evaluate and keep in mind ininteracting with the whales, right?

A. Sure.Q. I mean, they have to not only keep their eyes

out for precursors, right? They have to keep their eyesout for some of the other things you mentioned?

A. Yes. They're well equipped and well trained.Q. And, I'm not asking whether they're well

equipped and well trained. We haven't cited Sea Worldfor failure to train here. You understand that, right?

A. Yes.Q. So, it's not saying that there's something

deficient about the training program. We're justtalking about how the training program works inoperation and how it's supposed to work.

A. Okay.

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Q. So, you can't expect a trainer to seeeverything, right, that goes on in the environment?

A. I expect the trainers -- my expectation ofthem is to be aware of and make decisions about everysingle thing in the environment, sure.

Q. Maybe that's a poor question.You may hope that they see everything; but,

in fact, your experience tells you that that's notalways the case, no matter how well you've trained them?

A. Yes.Q. So, if the trainer doesn't see the precursor,

then, of course, as we've said, the trainer can't takeaction based on the precursor that might avoid undesiredbehavior?

A. You asked me that, and I said, "yes."Q. Well, I asked this question a little bit

differently, if you would. So, your answer to thisquestion is "yes"?

A. I don't remember the question now for sure.Yes.

Q. I don't want you to say, "yes," if you're notsure what the question is.

A. I guess I feel like I can answer -- I'llrepeat what I think I'm answering. You asked me does aperson have to recognize a precursor in order to respond

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to it. My answer is, "yes."Q. And, you did answer that question. And, so

if they don't see a precursor, they can't make thesebehavioral determinations in order to avoid the unwantedbehavior, right?

A. Yes.Q. So, you would agree, then, that even if the

trainer doesn't make an error, they can still be harmedby a killer whale even if they don't make any sort oferror whatsoever because there's no precursor that theymissed, then they could still be harmed by the whale,right?

A. Yes.Q. Now, changing gears here slightly but still

talking about training, you train the trainers onprecursors to situations you've had in the past in SeaWorld's experience?

A. Yes. We also use hypothetical situations.Q. Sometimes those hypothetical situations you

refer to those as scenarios?A. Scenarios.Q. And, you use those scenarios, but you also

use the actual instances from the past to help thetrainers better make the appropriate decisions?

A. I will use anything in my history and

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anything in Sea World's history, and I will behypothetical and create scenarios that we've never seento have discussions around safety interacting withkiller whales.

Q. Including things that you have seen?A. Yes.Q. So, when you're coming up with hypotheticals

of things that you haven't seen, what sources ofinformation are you drawing upon in creating ahypothetical?

A. I create hypothetical scenarios based on my25 years of interacting with these animals, and I willdraw up and I'm known for walking up to a group ofpeople and saying, "what would you do if." So, where amI drawing it from? I'm drawing it from experiences aswell as creating hypotheticals that I think mighthappen.

Q. Okay.A. Even if I think there's no chance of them

happening, we'll talk through the behavior analysis as apart of what we do.

Q. You talk through things that you think haveno chance of happening?

A. Yes, we do.Q. What is the function of that?

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A. The function of that is creating behavioraldiscussions, creating discussions around behavior and weglean so much from talking about a craft. Itcontributes to development of both people and animals.

Q. So, does that help the trainers avoidprecursors -- does that help trainers to respond toprecursors that you've seen in the past?

A. I think any behavioral discussion that wehave and any interactions with the animals contributesto that trainer's knowledge of killer whales in general,killer whale interaction, previous trainers' experience.So, sure, it helps equip them. Any behavioraldiscussion, any time you articulate behavior, it'sadding to their knowledge about killer whales andinteracting with them.

Q. So, if there's no similar precursor in thepast, you can't train the trainer on how to handlesomething that hasn't happened, right?

A. I'm not talking about making up precursors.I'm sorry, you misunderstood me. I'm talking aboutcreating events, what if X happened? What would be yourfirst step? What would be your second step? I willtalk about behavior, but there's not a whole lot ofbehavior I haven't witnessed. I will talk aboutbehavior scenarios.

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I'm not inventing precursive behavior thatwe've never seen before, but I will create a scenariothat we haven't been faced with.

Q. So, then, you would agree if you haven't hada similar precursive behavior in the past, you can'tthen train the trainer how to handle that precursivebehavior?

A. No. I'm sorry if you thought that's what I'msaying.

Q. You're not saying that?A. I'm not saying that.Q. Because Sea World didn't train Ms. Brancheau

about what to do if Tilikum grabbed her, right?A. Indeed, we did.Q. You did?A. We train trainers how to respond in the event

they ended up in a difficult situation with Tilikum.Q. Okay.A. But, we did not anticipate Tilikum would grab

nor did we ever see him show any precursor to grab atrainer.

Q. So, even though you had seen that precursorwith other whales, because you hadn't seen it withTilikum, you didn't train on how to react to it withTilikum should he grab you. Is that fair?

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A. That's not fair. We did train it. We didgenerally approach how to react if you find yourself inthe situation where you are not -- in a situation youwould rather not be in with a killer whale, we train ourtrainers how to react.

Q. Did you train your trainers how to react ifTilikum pulled them into the water?

A. I train the trainers how to react if theyended up in the water with Tilikum.

Q. For the trainer, did you train them how toreact if they themselves were pulled into the water withTilikum; what they, the victim if you will, should do ifthey're pulled into the water with Tilikum?

A. Yes, I did.Q. What did you --A. I didn't say, "If you're pulled into the

water with Tilikum, here's what you should do." Iphrased it, "If you end up in the water with Tilikum, ifyou ended up in the water with any killer whale, and Idon't think this is a situation you want to be in. Hereis the way I think you should react and what I think youshould do." And, we talk through those scenarios a lot.

Q. Then, do those scenarios include how not tohave yourself be in a position where Tilikum pulled youinto the water?

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A. We talk a lot about being in ready position.I would define that as being in a position where youbelieve you can move away.

JUDGE WELSCH: I'm a little confused. I justwant to make sure I'm understanding what the testimonyis.

In terms of the training that you provided thetrainers prior to the time of the accident in February2010, I'm confused in terms of the question and theanswer.

Was the training specifically with regard to whatto do with Tilikum, or was the training with regard towhat to do with killer whales in general, the sevenkiller whales at Sea World of Florida or was itspecifically to Tilikum?

THE WITNESS: I can make it very clear.Tilikum had his own set -- before February 24th, Tilikumcame to us from another facility. He had a differentbehavioral history than other whales, and he had adifferent set of protocols. He had his own chapter, ifI can refer to it as a chapter, in the SOP.

JUDGE WELSCH: So, you had some precursors insome of the other behaviors?

THE WITNESS: Well, precursors would be ageneral term for all killer whales, but as far as how we

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interacted with Tilikum, there were behaviors we did notdo with Tilikum that we did with other whales. He hadhis own set of protocols.

JUDGE WELSCH: And there's no other whale -- theseven whales were treated differently? The other sixwhales were all treated the same in terms of behaviors?

THE WITNESS: Are you asking me at the time ofthe incident?

JUDGE WELSCH: Prior to the incident.THE WITNESS: There was one other whale we

didn't interact in the water with, but other than that,every other whale.

JUDGE WELSCH: You looked at it in terms ofbehaviors were consistent among the other five whales?

THE WITNESS: Right.JUDGE WELSCH: Tilikum, though, had different

behaviors than the other five whales?THE WITNESS: He had different protocols from

the other five whales, and if a whale was in Tilikum'senvironment, that whale adopted Tilikum's protocols.

MR. BLACK: Thank you, Judge.BY MR. BLACK:Q. And, in training the trainers not to put

themselves into a vulnerable position with Tilikum, didyou train them to keep away from his mouth?

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A. No, I did not. We care for Tilikumperforming behaviors that were around his mouth. Wetrained him on gastric tube behavior and that is aroundhis mouth. It was not protocol to stay away fromTilikum's mouth.

Q. Including during interactions with him thatweren't related to husbandry or medical care?

A. That's true because all of the interactionsthat we do contribute to a reinforcement history withthat animal which contributes to husbandry procedures.So, we certainly would rehearse behaviors associatedwith husbandry procedures in other environments.

Q. So, it was okay, if you will -- it was not aproblem for Dawn to be in close proximity, Ms. Brancheauto be in close proximity to Tilikum's mouth on the dateof the accident?

A. Dawn did not break protocol on the day of theaccident.

Q. And, you relied on her judgement to make thedetermination that would protect herself from Tilikumultimately?

A. What are you saying to me?Q. I'm asking.A. Did we rely on her judgement to -- her

judgement coupled with all of the training, all of

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Tilikum's training, all of our protocol based onTilikum's behavioral history, yes.

MR. BLACK: I want to change to a differenttopic here, and I don't know if the Court -- I'm happyto keep proceeding -- I don't know.

JUDGE WELSCH: How much longer on Direct?MR. BLACK: Ten, fifteen minutes.JUDGE WELSCH: Why don't we go ahead and finish

the Direct Examination, and then we'll take a lunchbreak.

MR. BLACK: Very good.BY MR. BLACK:Q. Now, because Sea World wants their employees,

their trainers, obviously, to be safe, right?A. Yes.Q. I mean, so if there's an incident, if there

is an accident, that's a concern for Sea World?A. Absolutely.Q. And, if there's an incident, meaning more

than just an accident, there's a close call orsomething that could have ended up with something bad,that, too, is a concern to Sea World, right?

A. We address each and every behavioral eventthat might contribute to the safety of the animals orthe trainers very, very seriously, indeed, yes.

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Q. And, you don't want to delay in any wayaddressing that incident or that behavioral issue,right?

A. It's immediately addressed on the floor. Asfar as the written procedures, sometimes that will taketime but it's immediately addressed.

Q. I mean, obviously, you want to address it asquickly as you can, and you're saying immediately ispretty close to as quickly as you can, right?

A. Yes.Q. And, you don't want to make it more dangerous

by not addressing it, right?A. No.Q. So, you want to be as safe or even safer than

you were when you were making your choice to address theconcern, right? That is, you want to take action.

A. While I'm reviewing something, I'm going tobe safer? Is that your question?

Q. Well, at least as safe and if you can, safer,right?

A. Sure.Q. That's the reason for addressing the concern,

right?A. Yes.Q. So, now, there have been injuries at Sea

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World while trainers were interacting with killerwhales, right?

A. Yes.Q. And, if there's an injury, of course, you're

not ignoring that fact for sure, right?A. Absolutely not.Q. And, so in addressing it immediately, the

first thing that Sea World does is often to pull thetrainers out of the water, right?

A. No, that's not correct.Q. In accidents and injuries that you have had,

Sea World has had accidents occur where they have pulledall the trainers out of the water, right?

A. When Sea World had an incident onFebruary 24, 2010, we suspended all water interactionfollowing that incident.

Q. And, that continues today. There has beenno water interaction with the whales in the 19 monthssince February 2010?

A. That's correct.Q. But --A. Except for husbandry procedures.Q. If there was an emergency incident where you

did water work, right?A. Yes.

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Q. Aside from that emergency or perhaps otheremergencies, Sea World has stayed out of the water?

A. We have suspended water interaction, yes.Q. And, this has happened before several times

that Sea World has suspended water work, right?A. Two other times.Q. Well, it happened in 1988?A. Yes.Q. And, it happened again in 2006 after the

Kasatka incident?A. For whatever reason, I'm not recollecting

that.Q. It happened in December of 2009 in the Loro

Parque incident, right?A. Yes.JUDGE WELSCH: So, when you said Sea World,

you're not talking about Orlando; you're talking aboutall the parks?

MR. BLACK: That was all the parks.THE WITNESS: We have not suspended water

interactions in Sea World. Other than following theFebruary 24th event with Ms. Brancheau, we have notsuspended water interaction at Sea World around an eventthat happened at Sea World Orlando.

So, if he's talking about an event that happened

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at Sea World of California in 1988 and an event thathappened at Loro Parque, and he's also talking about anevent that happened in San Diego.

So, at Sea World Orlando, February 24, 2010, isthe first time we've suspended water interaction at SeaWorld around an event that happened in Sea WorldOrlando, but corporately we have suspended waterinteraction.

JUDGE WELSCH: So, all the parks have suspendedwater interactions since February of 2010?

THE WITNESS: Yes.JUDGE WELSCH: But, the other incidents, it

migh

osha v seaworld trial transcript

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judge welsch

vs sea world of florida

behalf of complainant

thesecretary of labor

behalf of respondent

behalf of thesecretary

beforejudge ken welsch

tremelle howardfishburne