OSHA V SeaWorld Trial Transcript

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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SECRETARY OF LABOR,
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Complainant,
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-vs)
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SEA WORLD OF FLORIDA, LLC,
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Respondent,
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OSHRC DOCKET
NO. 10-1705
TRANSCRIPT OF PROCEEDINGS
VOLUME I.
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Before:
Judge Ken S. Welsch
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Date:
Monday, September 19, 2011

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

1101 East First Street
Sanford, Florida 32771
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APPEARANCES:
On Behalf of Complainant:
JOHN BLACK, ESQ.
TREMELLE I. HOWARD-FISHBURNE, ESQ.
U. S. Department of Labor
Office of the Solicitor
61 Forsyth Street, SW
Suite 7T10
Atlanta, Georgia 30303
(404) 302-5435
On Behalf of Respondent:
CARLA GUNNIN STONE, ESQ.
Constangy, Brooks & Smith, LLC
Suite 2400
230 Peachtree Street
Atlanta, Georgia 30303-1557
(404) 525-8622
On Behalf of Intervenor:
GEORGE COE, ESQ.
JON L. MILLS, ESQ.
KAREN DYER, ESQ.
121 South Orange Avenue
Suite 840
Orlando, Florida 32801
407-425-7118
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I N D E X
WITNESSES
Name
Flaherty Clark
Direct
Cross
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Redirect
Recross
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EXHIBITS
Complainant's
C-1
Description
Marked
Animal Training SOP
Respondent's
(None)
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Admitted
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P R O C E E D I N G S
Morning Session
9:00 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.
Number is 10-1705.
The date is September 19, 2011.
The Docket
The location is Sanford, Florida.
Let the record reflect that the hearing is before
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Judge Ken Welsch of the Occupational Safety and Health
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Review Commission.
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Let me just say this:
There is no issue before me
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regarding whether or not the whales should be held in
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captivity.
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whether or not Sea World was responsible for the death
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of Ms. Brancheau.
Also, there is no issue before me as to
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The issues before me solely involve the OSHA
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citations that were issued, the serious, the willful and
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the other than serious citations that were issued on
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August 23, 2010, involving an inspection at the Sea
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World Park, located at 7007 Sea Harbor Drive, Orlando,
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Florida.
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If I understand it, all the alleged violations and
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proposed penalties and classifications are at issue
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before me.
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Would the parties enter their appearance for the

record, please?
Representing the Secretary of Labor?
MR. BLACK:
Good morning, Your Honor.
I'm John
Black, and I work in the Office of the Solicitor,
Atlanta, Georgia, here this morning representing the
Secretary of Labor in this case.
JUDGE WELSCH:
give your whole address.
MR. BLACK:
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Southwest.
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Georgia 30303.
Part of the test is you have to
Our address is 61 Forsyth Street,
I believe we're in Room 7T10, Atlanta,
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JUDGE WELSCH:
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MR. BLACK:
And your telephone number?

404-302-5435.
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more difficult questions.
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JUDGE WELSCH:
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MS. HOWARD-FISHBURNE:
I hope there are no
And who is sitting with you?
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Honor.
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Secretary.
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telephone number as Mr. Black.
Good morning, Your
Tremelle Howard-Fishburne, here on behalf of the

I'm also located at the same address and
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JUDGE WELSCH:
Thank you.
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And, representing Sea World of Florida?
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MS. GUNNIN:
Yes, Your Honor.
Carla Gunnin for
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Sea World.
My address is 230 Peachtree Street, Suite
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2400, Atlanta, Georgia 30303, Telephone 404-525-8622,
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and I'm with the firm of Costangy, Brooks & Smith.
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And to my left, I have Kelly Flaherty Clark.
She
is my corporate representative, and I also have our
expert sitting at the table, Mr. Jeff Andrews, and also
a paralegal, in-house for Sea World.
JUDGE WELSCH:
MS. DYER:
And representing the Intervenor?

My name
is Karen Dyer with the law firm Boies, Schiller &
Flexner.
with Boies, Schiller & Flexner.
And, with me is my colleague, Jon Mills, also

The address is 121
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South Orange Avenue, Suite 840, Orlando, Florida 32801,
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and the phone number is 407-425-7118.
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time to think about that. (Levity)
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JUDGE WELSCH:
So, we had a long
I just want to make sure.
You're
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here as an intervenor for the limited purpose strictly
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for the privacy concerns of the family?
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MS. DYER:
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JUDGE WELSCH:
That is correct, Your Honor.

Thank you.
You're not here to
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present any evidence, call witnesses, examine witnesses;
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that sort of thing?
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MS. DYER:
Correct.
We're here solely for the
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purpose of protecting privacy rights.
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to present any evidence in this matter.
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JUDGE WELSCH:
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Mr. Black?
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MR. BLACK:
We do not intend
Thank you.
And, Your Honor, I realize I
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probably should have introduced at the Counsel table
with us is our government representative, which is Lara
Padgett, and she's with OSHA and was the lead
investigator in this matter.
Florida.
Dave Duffus.
Her office is in Tampa,
And also in the courtroom is our expert, Dr.
JUDGE WELSCH:
I'm assuming there's no issue
before me regarding jurisdiction and coverage.
all been stipulated to?
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MS. GUNNIN:
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JUDGE WELSCH:
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MR. BLACK:
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JUDGE WELSCH:
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MR. BLACK:
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JUDGE WELSCH:
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Yes, Your Honor.

Mr. Black?
I'm not aware of any issues.
Are there any other stipulations
that the parties have arrived at?
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That's
matters.
Not at this time, Your Honor.

Let's deal with some preliminary
Let me just deal with these fairly quickly.
The Respondent's motion to exclude Dr. Duffus'
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testimony, for right now, it's going to be held.
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explained to Counsel in chambers, I hold that until we
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do the Daubert hearing when the expert is called as a
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witness.
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So, right now, that motion is being held.
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As I
I will deal with that motion at that time.
The same with the Respondent's motion to exclude

testimony of the witnesses, Mr. Ventre and Mr. Jett.
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I'm going to hold that until those witnesses if and when
they're called and then we'll deal with that.
The Intervenor's motion for a protective order, I
have explained that in chambers.
motion also to the point if and when the Secretary
introduces the video and then we'll take up the motion
for a protective order.
known whether or not that video is going to be
introduced.
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I'm going to hold that
But at this juncture, it's not
The final motion that I'm aware of that I need to
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deal with is the Motion to Revoke Subpoenas of the three
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individuals from Sea World of San Diego.
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indicated, I'm denying the Motion to Revoke the
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Subpoenas on the basis that the subpoenas that were
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issued have a nationwide effect.
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cites does not apply.
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And, as I have
The rule that Counsel
It's statutory under Section 12(i) of the
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Occupational Safety and Health Act, 29 USC 661(i), which
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refers to proceedings before the Commission, looks to
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the National Labor Relations Act, Section 161, and
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Section 161 of the National Labor Relations Act makes it
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a corporate or nationwide subpoena power.
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So, the Respondent's Motion to Revoke Subpoenas is
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denied to that extent.
I will ask, though, that Counsel
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see if there are alternative means if the Secretary does
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intend to call the three individuals from San Diego, I
want to make sure if they are brought in here, that the
Secretary does actually intend to have them called as
witnesses.
I also want to see if the parties might be able to
work out some stipulations to obviate the need to even
have them as witnesses.
Secretary to look at whether or not they need all three.
Maybe one witness might suffice for the Secretary's
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Also, I would like the
purpose.
Anyway, I'm just asking the Secretary to look into
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that, and we'll deal with that later.
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the Motion to Revoke the Subpoenas, that's being denied.
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But, in terms of
Are there any other preliminary matters in
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addition?
I will ask is either party or the parties
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asking that witnesses be sequestered?
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MR. BLACK:
We are, Your Honor.
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MS. GUNNIN:
We join in this request, Your
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Honor.
JUDGE WELSCH:
Anybody who has been subpoenaed
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or knows that they are likely to be called as witnesses
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in this case, would you mind standing, please, if
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they're here in the courtroom?
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(Witnesses Comply)
JUDGE WELSCH:
Save that.
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Now, Mr. Black, to
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remain in the courtroom, you have the compliance
officer.
Secretary?
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That's the designated representative for the
MR. BLACK:
That's correct and our expert, Dr.
Duffus as well.
JUDGE WELSCH:
Dr. Duffus?
Is it necessary for
Dr. Duffus to be in the courtroom for his testimony as
an expert?
MR. BLACK:
It is, Your Honor.
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MS. GUNNIN:
We have no objection.
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JUDGE WELSCH:
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Okay, Dr. Duffus may remain in
the courtroom.
Would you rather sit up here?
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and your Counsel.
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MS. GUNNIN:
That's between you
Judge, this is Mr. Chuck Tomkins.
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He has been subpoenaed by the Secretary.
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going to be a witness in our case, but he's not a
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representative, so we'll find a place for him outside.
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JUDGE WELSCH:
Well, the Company's
representative is?
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MS. GUNNIN:
Ms. Flaherty Clark.
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JUDGE WELSCH:
Ms. Flaherty Clark.
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He's also
And, your
expert is?
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MS. GUNNIN:
Is Mr. Andrews.
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JUDGE WELSCH:
Mr. Andrews?
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Does he need to be
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in the courtroom for his testimony?
MS. GUNNIN:
JUDGE WELSCH:
Yes, Your Honor.

He may remain in the courtroom.
So, there's only one person in the courtroom that's
being called as a witness in this case?
MS. GUNNIN:
JUDGE WELSCH:
Yes, Your Honor.

Mr. Tomkins, I will ask you not
to discuss your testimony or what you anticipate your
testimony to be with anybody else prior to your
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testimony, and after you testify, I ask that you not
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discuss your testimony with any other witnesses who may
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be called later in the case.
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But, for the time being, I would ask that Counsel
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-- I think there is a jury room outside, and maybe you
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can show him where that is.
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Does the Secretary think Mr. Tompkins is going to

be called early in your case?
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MR. BLACK:
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JUDGE WELSCH:
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He may very well be.

Can you show him, Ms. Gunnin?
(Witness Excused)
JUDGE WELSCH:
Before we proceed on, Mr. Black
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or Ms. Gunnin, are there any other preliminary matters
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we need to discuss?
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MR. BLACK:
Two things, one which I've just
learned 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 to
be called once or whether they could be recalled by
Respondent in their case.
lists were exchanged.
That was before the witness
And, having seen now the witness lists by the
parties, I think there are perhaps six or seven
overlapping witnesses listed by the parties.
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And, so we wanted to know definitively whether if
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we call a witness who is listed on both lists, you're
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going to listen to all the testimony from that witness,
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both Direct Examination by us as well as Sea World's
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Cross-Examination, if you will, and any additional
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examination that they have as part of their case because
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we just want to know what -- we don't think that's the
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appropriate way to do it.
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We would ask that witnesses as is the normal
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procedure, there's Direct and then there's Cross, and
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then if they have something they want to say that's
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beyond our Direct, they call that witness in their case.
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JUDGE WELSCH:
I think the issues are such that
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whatever you ask on Direct is probably going to be
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subject to Cross-Examination.
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going 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.
would rather just get the witness -- but I will ask at
the finish of that witness's testimony, whether or not
that witness is now excused as a witness by both
parties.
examined.
burden of proof to the extent that it goes beyond what
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I certainly ask that after they've been

But, I understand your point in terms of
you've asked on Direct Examination.

MR. BLACK:
And, we don't want it to proceed
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that way, but if it's Your Honor's ruling that that's
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how we're going to proceed, we want it to be consistent
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with all the witnesses and not just left up to, well,
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can you come back --
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JUDGE WELSCH:
Let's cross that bridge when we
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get to it.
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Both Counsel are representing your clients, and if you
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feel that objections need to be made, make your
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objections.
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allowing it the other way, so that's fine.
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I'm not sure how that's going to happen.
You've already told me I was wrong by
MR. BLACK:
I would never tell you you're
wrong.
MS. GUNNIN:
Judge, we would prefer to
streamline it as much as possible because it does bring
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witnesses back and forth, and as you know, we're not in
Orlando with this hearing, and it is a bit of a
disruption.
JUDGE WELSCH:
But, you understand, I'm certain,
there's an advantage on your Cross-Examination of the
witnesses that if you're going beyond the scope of what
the Secretary has asked about, then it should be
switched to more Direct Examination as opposed to
leading questions.
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MS. GUNNIN:
Yes, Your Honor.
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JUDGE WELSCH:
I think we can work all this out.
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Any other preliminary matters?
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MR. BLACK:
Well, there is a matter that I just
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learned about, and that is the witness we intended to
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call as our first witness is not here, despite us having
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notified Sea World yesterday of our need to have him
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here 9:00 today.
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MS. GUNNIN:
That's Fredy Herrara.

And, Judge, as we have discussed,
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the Secretary has subpoenaed 35 witnesses in this case.
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In an effort to try to understand which witnesses need
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to be here so that we didn't have to absolutely shut
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down Sea World today, we have asked for time and they
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notified me yesterday afternoon.
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ahold of witnesses on a nonbusiness day, so we were not
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able to get ahold of Mr. Herrara.
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We can't just get
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And, another witness that they asked for yesterday

is 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 the
courtroom at 9:00, and those two witnesses are present
in the courtroom this morning.
So, we will try to get them here as quickly as
possible, but there are other witnesses available for
testimony this morning.
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JUDGE WELSCH:
So, Mr. Herrara will be made
available to the Secretary --
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MS. GUNNIN:
Yes, Your Honor.
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JUDGE WELSCH:
-- sometime today?
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MS. GUNNIN:
Yes, Your Honor.
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JUDGE WELSCH:
Can the Secretary -- I know this
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might not be what you planned in your order to call
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another witness.
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MR. BLACK:
We can call another witness first.
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We would rather not have to rearrange our entire
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schedule.
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shift started at 8:00 or 7:00, and I think from what he
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had indicated during his deposition, it's now 10:00 so
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it could well be the three hours that we were asked to
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provide notice.
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We would like -- Mr. Herrara, I assume his
I understand we have a number of Sea World
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witnesses on our witness list; and, thus, yesterday
afternoon we sent an e-mail to Counsel, saying, "We want
these four people there tomorrow at 9:00, so we can be
ready to go," the four people being the two who are
here, Mr. Tompkins and Ms. Clark, and two others being
Ms. Schaber and Mr. Herrara.
And, now, we're hearing at 9:45 for the first time
that they are not here, and we don't understand.
want to prevent any recurrence, certainly, of this, and
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So, we
we want to deal with the issue.

JUDGE WELSCH:
Well, as quickly as you know
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the order of your witnesses, I would suggest you provide
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that to Ms. Gunnin, and then she can quickly identify
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whether or not somebody will be available.
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MS. GUNNIN:
And, Judge, can I ask that he do
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this in the normal business hours rather relying upon a
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Sunday afternoon when we're all traveling?
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JUDGE WELSCH:
We're not going to go any further.

Any other preliminary matters?
MR. COE:
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JUDGE WELSCH:
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Do the Intervenors
have anything they want to say at this juncture?
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Okay, enough is enough.
No, Your Honor.

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:
Now, killer whales are large, powerful and
Thank you, Your Honor.
nondomesticated animals.
I think everybody would agree
with that.
physical harm or death to people who get near them.
don't think there's any dispute about that.
They have a potential to cause serious

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Sea World's killer whale training program doesn't
change the essential facts that harm or death to people
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responsible.
Their program doesn't eliminate what Sea
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World recognizes itself as, "a calculated risk."
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despite this calculated risk, until the day of Ms.
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Brancheau's death in February of 2010, Sea World of
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Florida, LLC, the Respondent here, allowed their
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trainers in show performances to swim with and ride on
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most of Sea World's killer whales.
So,
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Now, despite this calculated risk, Sea World still
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permits today its trainers, during show performances, to
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work in close and unprotected contact with its killer
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whales.
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made off limits with only one killer whale and that's
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Tilikum, the whale that killed Dawn Brancheau 19 months
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ago.
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This type of close unprotected contact has been
Now, here the Secretary of Labor has charged Sea

World with a willful violation under Section (5)(a)(1),
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and for permitting -- it has two parts to it.
for permitting unprotected contact with Tilikum during
show performances.
One is
We have also charged Sea World of Florida with a
willful 5(a)(1) for permitting trainers during show
performances with whales other than Tilikum without
physical protection to get into the water with the
killer whales and also charging them with allowing them
to get in close proximity with the killer whales while
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they're out of the water.

We expect the evidence is going to show that Sea
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World's primary method for trying to keep trainers safe
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was to train their trainers -- that was their principal
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way of protecting the trainers -- and Sea World trains
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its trainers how to recognize and how to avoid potential
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risks, and then, in effect, tells them, "be careful."
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We also expect that the evidence is going to show
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that Sea World knows and that it knew in February of
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2010 that relying primarily on training the trainers to
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be careful leaves gaps with the potential for serious
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injury or for death.
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Sea World had trained its trainers to recognize
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what it calls precursors, and you're going to hear that
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word during the hearing, I imagine several times;
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precursors to potential dangerous whale behavior and,
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then, hopefully, to make the correct decisions to
prevent or avoid dangerous behavior after they have
identified a precursor.
And, Sea World characterizes dangerous whale
behavior most often as aggressive.
for training the trainers still allows this calculated
risk in at least three ways.
not sufficient for providing protection against that
risk.
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Sea World's safety
Training the trainer is
First, the trainer might fail to observe the
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precursor and, thus, miss the opportunity to avoid the
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dangerous behavior.
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Second, the trainer might recognize the precursor
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and see it, but make decisions in real time that in
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hindsight are seen as incorrect and not being effective.
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Third, a whale might engage in the dangerous
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behavior without there being any previously identified
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precursor.
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So, those are the deficiencies in their safety
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program that we expect the evidence is going to explore
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and expose.
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Now, Sea World says that Dawn was killed because
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Sea World had never previously seen Tilikum grab anyone
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and pull them into the water.
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evidence is going to show that Sea World recognized this
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We expect that the
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calculated risk to the trainers, including to Dawn but
they will --
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JUDGE WELSCH:
refer to her by her last name, please.
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Mr. Black, I would like you to
MR. BLACK:
I'm sorry, Your Honor.
My
apologies.
Sea World says that Ms. Brancheau was killed
because they had never previously seen a whale named
Tilikum grab and pull anybody under the water, but we
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expect that the evidence is going to show that they
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recognized this calculated risk to trainers, including
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Ms. Brancheau, but they willfully chose not no change
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their reliance on this primary safety mechanism of
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training the trainers to avoid danger.
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Now, we also expect that the evidence is going to
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raise a number of questions about Sea World's
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credibility.
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show that Sea World agrees on the one hand that it's
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irrelevant to safety as to how Tilikum actually pulled
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Ms. Brancheau into pool by her hair versus her arm; and
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then on the other hand to perpetuate a version of events
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that she was definitely, definitively pulled in by her
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hair.
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For example, we expect the evidence to
We expect that the evidence will show a number of

contradictions that call into question Sea World's
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credibility as to what they say, and we would ask the
Court to listen carefully to that.
We'll also address the two other citations that
don't involve the killer whales.
We expect that the
evidence is going to establish the serious violation of
failing to have a guardrail on the stairs and an other
than serious violation for failure to provide
weatherproof enclosures for electrical outlets and
receptacles.
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Now, in response to the Secretary's case, we
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expect Sea World to offer evidence that purports to show
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there's been only a limited number of injuries, and in
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listening to this evidence, we think you should consider
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whether the calculated risk of injury or death that Sea
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World had already recognized on the morning of
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February 24, 2010, was so low that they could disregard
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it as insignificant or treat it as if it wasn't a real
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risk.
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Additionally, and finally, we would ask that you
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listen carefully to the evidence that Sea World is
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expected to present on abatement to determine whether
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Sea World has shown the infeasibility of the Tilikum and
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water work abatement measures that it's already
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implemented.
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World has abated hazards as to Tilikum, the way that
That is, the evidence will show that Sea
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OSHA has proposed.
As to water work, as to swimming with the whales
during performances, Sea World has also suspended that
for the last 17 months.
feasible to do that, to continue the suspension of the
water work.
But, they claim that it is not
Also, although Sea World hasn't implemented
protective contact with the other whales during shows,
that is, providing a barrier or distance for them when
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interacting with them during shows, we would ask you to
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listen and see whether you hear any credible evidence of
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why Sea World can't use barriers or distance with the
13
other whales during the show performances to make those
14
shows with those whales as safe for trainers as the
15
shows with Tilikum now.
16
So, I appreciate it.
17
JUDGE WELSCH:
Thank you very much.
Let me just ask, the Secretary's
18
Citation 5(a)(1) goes solely to the trainers; only
19
involves the trainers?
20
show performances?
21
MR. BLACK:
22
JUDGE WELSCH:
23
MR. BLACK:
24
25
Are you talking about during the
That's a good question, Your Honor.

That's why I'm the Judge.
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 interactions
that go on prior to the shows?
MR. BLACK:
JUDGE WELSCH:
Correct.
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 it
presents some of the same hazards to the trainers, those
hazards have not been cited because that was not what
10
was involved here, and Sea World has limited it to that
11
which it certainly thinks there's feasible abatement
12
for.
13
JUDGE WELSCH:
And the two areas you're talking
14
about are water work.
15
Water work was the trainers are in the pool with the
16
whales?
17
MR. BLACK:
18
JUDGE WELSCH:
19
MR. BLACK:
20
21
22
23
Prior to Ms. Brancheau's death,
Correct.
And what is dry work?
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
24
evidence that there are some shallow ledges containing
25
either no or a slight amount of water, so they're not
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1
2
swimming with the whales.

And you asked, Your Honor, whether this just goes
to trainers.
see whether the language says only with trainers.
in fact, the trainers, to our knowledge, are the only
ones who would be interacting with the whales in ways
that we're saying are unsafe during show performances.
So, there may be other folks, but we're not intending to
present evidence as to dangers to other people.
10
I would have to look at the citation to
JUDGE WELSCH:
But,
Looking at the OSHA citation, it
11
does in both Instance (a) and (b) refer to animal
12
trainer; animal trainers working with Tilikum and animal
13
trainers working with other killer whales other than
14
Tilikum.
15
16
MR. BLACK:
So that, then, obviously, is what
we have limited the citation to.
17
JUDGE WELSCH:
18
Ms. Gunnin, does Sea World wish to make an opening
19
Okay, thank you.
statement?
20
MS. GUNNIN:
Yes, Your Honor, we do.
21
Your Honor, I don't know how much you know about
22
Sea World.
We filed a prehearing statement with you,
23
and it set out our legal position, but I want to give
24
you a little bit of information about Sea World itself.
25
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 sea
where ordinary people could learn and be inspired by the
ocean.
The purpose of the Company is to educate,
certainly there's entertainment to guests, and the
purpose is ultimately that there is a better respect for
the marine environment and the ocean.
8
9
Sea World also rescues, rehabilitates and returns

more marine mammals to the wild than any other
10
organization.
They spend millions of dollars in efforts
11
of conservation, education, research and animal rescue.
12
Cumulatively, Sea World parks under the corporate
13
umbrella of Sea World Parks and Entertainment, the
14
parent company of Sea World of Florida, LLC, houses
15
about 70,000 animals, and they allow scientists from all
16
over the world to come here to learn more about their
17
animals and their exhibits.
18
Some additional points that I would like you to
19
pay attention to in this hearing, you're going to hear a
20
lot of reference to Shamu Stadium.
21
divided up into areas.
22
are housed is a park called Shamu Stadium.
23
Sea World Park is
The area where the killer whales
Mr. Black referenced the training of the killer
24
whale trainers.
That's certainly a component, but
25
there's also a lot to the training of the killer whales
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themselves.
you're going to hear a lot about the training methods
that Sea World uses to allow the killer whales to
perform as they do, to allow them to submit to voluntary
medical and husbandry procedures, and you're going to
hear how that goes hand in hand with the training of the
killer whale trainers, and those two are not exclusive
of one another.
There is a lot of methodology used, and
They have lots of safety protocols and procedures
10
in place.
11
is a lengthy process, a lot of on-the-job training.
12
don't start day one at Shamu Stadium and go train a
13
killer whale the next day.
14
We would like you to listen to all of those because all
15
of those protocols ultimately equate to the safety of
16
the trainers.
17
Training has become -- a killer whale trainer

You
You have a lengthy process.
It's not just in Sea World's mind of their safety,
18
but there are numbers to prove that.
19
operation a number of years now, and they have been
20
keeping statistics of any kind of interactions they have
21
with killer whales, and you're going to hear testimony
22
about the number of interactions, the number of injuries
23
they must sustain, and we think that will be proof that
24
there is a safe program.
25
They have been in
It was an extremely unfortunate event on February
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24th.
It was a life changing event to many people.
It
affected Sea World deeply, it affected, of course, Ms.
Brancheau's family very deeply.
issue is the efforts that Sea World has made prior to
that time to ensure trainer safety.
But, I think the bigger
You're also going to hear about a prior OSHA
inspection that was conducted by CAL-OSHA that occurred
in 2006 and ended in 2007.
agency under the umbrella of Federal OSHA to be at least
CAL-OSHA, a state plan
10
as effective as Federal OSHA, looked at the activity of
11
the killer whales, and the killer whale trainers and
12
whether or not it was safe.
13
CAL-OSHA did not issue a citation.
14
issued an information memorandum with certain
15
recommendations, and witnesses will testify that all
16
those recommendations and the recommendations that were
17
feasible to make and additional enhancements that were
18
made after that inspection.
19
CAL-OSHA
You're also going to hear about an organization
20
called the Association of Zoos and Aquariums.
21
referred to as the AZA.
22
accredits these aquariums.
23
It's also
The AZA is an institution that
Sea World is an accredited institution.
They have
24
a couple of standards that do apply to the housing of
25
killer whales, and you're going to hear about those
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standards and Sea World's compliance as being an
accredited organization by the AZA.
3
4
JUDGE WELSCH:
Is Sea World considered an
aquarium as opposed to entertainment?
MS. GUNNIN:
They are a member of the AZA, the
Association of Zoos and Aquariums.
a theme park.
research, it would be considered an aquarium.
It's not just simply
Because of the education and the
Judge, you're also going to hear about the
10
feasible abatement methods that have been offered by
11
OSHA.
12
that it's the feasible methods that the Secretary must
13
prove in this case.
14
the Secretary to prove a feasible means of abatement.
Mr. Black says it's infeasibility.
It is a 5(a)(1).
We would say
The burden is on
15
The deposition testimony from OSHA revealed their
16
feasible means of abatement was no longer to have close
17
contact with the killer whales.
18
of caring for the killer whales, it would be impossible
19
to not have close contact with the killer whales.
20
that actually does open up the case to a bigger
21
consideration.
22
Because of the nature
So,
That is, if the Secretary's position is -- and I
23
believe that Mr. Black did reference the position of
24
OSHA is not to have close contact during the shows, but
25
there's close contact when shows don't occur.
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29
more contact in the back area of Shamu Stadium, not in
front of the public, not performing shows than there is
performing shows.
So, it would be inconsistent to take the position
that it's okay to do that in the back as long as you
don't have people watching, but you can't do that in a
show.
That doesn't seem to make a lot of logical sense.
The care of the animals involves not only medical
care -- and we will have medical care testimony in this
10
case, but also basic husbandry, and that's what the
11
animal trainers do.
12
And, you're going to hear about how the training
13
that they do with these killer whales is essential to
14
the husbandry and medical care that the killer whales
15
voluntarily submit to.
16
So, Your Honor, we ask that you listen to those
17
points from Sea World's side in this case, and have a
18
better understanding of what Sea World actually does.
19
Thank you.
20
JUDGE WELSCH:
I will ask you, Ms. Gunnin, in
21
your prehearing exchange, I know you addressed the
22
serious citation item, the railing.
23
MS. GUNNIN:
24
JUDGE WELSCH:
25
than serious item.
Yes, Your Honor.

You did not address the other
Is that still in contest?
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1
2
MS. GUNNIN:
contest on that at this time.
3
4
JUDGE WELSCH:
So, both those items are still in
contest?
5
6
Judge, we have not withdrawn our
MS. GUNNIN:
They are still in contest, Your
Honor.
JUDGE WELSCH:
When did the Sea World of
Orlando facility start?
MS. GUNNIN:
10
11
I'm going to have to confer on
that.
JUDGE WELSCH:
The reason I ask that is, I think
12
in response to the Intervenor's request, they mentioned
13
that Ms. Brancheau had worked, started there in 2002 or
14
'4 when the Sea World of Orlando began.
15
predecessor, the way I understood it.
16
World of Orlando dated further back than that.
17
MS. GUNNIN:
There was a
I thought Sea
Judge, Sea World in Orlando has
18
been in existence far beyond that.
19
maybe around '78 they actually started in Florida.
20
JUDGE WELSCH:
It's probably been
It was something the Intervenor
21
said in their response that Ms. Brancheau had started
22
after the predecessor company and had been working
23
full-time for Sea World in Orlando since they started,
24
and that was in 2002.
25
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 one
time owned by Clark, Praise Stefanovich, it was later
sold to Anheuser-Busch, and then Anheuser-Busch was
acquired by a company called InBev, and then it was spun
off to the Blackstone Group.
Entertainment is its own corporate entity and then the
other parks are legal entities under that corporate
10
11
12
And, Sea World Park and
umbrella.
JUDGE WELSCH:
I don't want to go too deep, but
it kind of threw me when I read their response.
13
Did you all wish to say anything?
14
MS. DYER:
15
JUDGE WELSCH:
No, Your Honor.

Is there anything else we need to
16
take up?
Before we start with the first witness, why
17
don't we take a ten-minute break, and then we'll call
18
the first witness after the break.
19
So, we stand adjourned until ten to.
20
(Whereupon, a short recess
21
was taken off the record)
22
JUDGE WELSCH:
Let's go back on the record.
23
Does the Secretary wish to call her first witness?
24
MR. BLACK:
25
The Secretary calls Kelly Clark.
Yes, thank you, Your Honor.
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JUDGE WELSCH:
Ms. Clark?
---o0o---
KELLY FLAHERTY CLARK,
having been first duly sworn, was
examined and testified as follows:
JUDGE WELSCH:
Ma'am, for the record, would
you state your full name, spell your last name, and
state your address, please?
9
10
THE WITNESS:
Clark.
Sure.
My name is Kelly Flaherty
My middle name is F-l-a-h-e-r-t-y C-l-a-r-k.
11
JUDGE WELSCH:
And your address, please?
12
THE WITNESS:
My home address or business
13
14
15
16
17
address?
JUDGE WELSCH:
Whichever you feel more
comfortable.
THE WITNESS:
7007 Sea World Drive, Orlando,
Florida 32821.
18
JUDGE WELSCH:
That is your business address?
19
THE WITNESS:
That is my business address.
20
JUDGE WELSCH:
Your witness, Mr. Black.
21
MR. BLACK:
Thank you, Judge.
22
---o0o---
23
DIRECT EXAMINATION
24
BY MR. BLACK:
25
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.
10
Q.
And, you are the curator of animal training?
11
A.
Yes, I'm the curator of animal training.
12
Q.
And, you started in that position in May of
14
A.
That's correct.
15
Q.
And, before you became the curator of animal
13
2008?
16
training, you were the assistant curator of animal
17
training; is that right?
18
A.
That's correct.
19
Q.
And, that was in Whale and Dolphin Stadium?
20
A.
I was assigned to Whale and Dolphin Stadium.
21
Q.
And, there are different assistant curators
22
in different areas of the park; is that right?
23
A.
Yes.
24
Q.
And, so Whale and Dolphin Stadium, that's
25
different than Shamu Stadium which Ms. Gunnin referred
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1
2
to in her opening?
A.
Yes.
There are four facilities at the park
that I'm currently overseeing.
of the four animal training facilities.
5
6
7
Q.
Whale and Dolphin is one
Just for the record, what are the four animal
training facilities at the park?

A.
We have a group of animals we call the animal
ambassador team.
That group of animals does public
appearances in the park.
They also go out from
10
marketing and a lot of outreach for educational
11
purposes.
12
classrooms and hospitals to visit small children.
13
a group of trained animals.
And, also they go into the community, into

It's
14
We have Sea Lion and Otter Stadium.
15
facility performs a sea lion and otter show in the park.
16
17
We have a Whale and Dolphin facility that

performs a Whale and Dolphin show in the park.
18
19
20
21
That
And our Shamu facility that does Shamu shows

in the park.
Q.
And, the Shamu shows, that's the killer
whales that we're dealing with in this case?
22
A.
Yes.
23
Q.
And, you were the assistant curator at Whale
24
25
and Dolphin for approximately nine years?

A.
No, that's not correct.
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assistant curator for Whale and Dolphin for about
five years before.
curator at Sea Lion and Otter Stadium.
Q.
Before that, I was also an assistant
You're sort of soft spoken, and just so the
Court Reporter can hear -- I know it's hard to speak
loudly if that's not our natural speaking voice.
to mumble myself.
8
9
10
A.
I tend
I like that it's on the record that I'm soft
spoken.
Q.
So, you spent nine years as an assistant
11
curator at Whale and Dolphin for five years and Sea Lion
12
and Otter for four years?
13
A.
The entire time that I was an assistant
14
curator, I worked very closely with the assistant
15
curator team, and really we all weighed in in all three
16
facilities.
17
18
Q.
And, before you were an assistant curator,
you were a supervisor?
19
A.
Yes.
20
Q.
And that was at Shamu Stadium?
21
A.
Yes.
22
Q.
And also at Whale and Dolphin Stadium for
23
some of that time as well?
24
A.
Yes.
25
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?
10
A.
Yes, I was a senior trainer at Shamu Stadium,
11
12
13
and I was a senior trainer at those facilities as well.

Q.
At Whale and Dolphin Stadium and at Busch
Gardens, Tampa?
14
A.
Yes.
15
Q.
And, as a curator of animal training, that's
16
Sea World of Florida.
That's not Sea World of
17
California or Sea World of Texas or anything?
18
A.
That's correct.
19
Q.
And, you're responsible for all the four
20
stadiums, four stadiums or areas that we talked about,
21
right?
22
A.
Yes.
23
Q.
That would be Shamu, Whale and Dolphin, Sea
24
25
Lion and Otter and Animal Ambassadors?

A.
Yes.
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1
2
Q.
So, your responsibilities are for the health
and well being of all the animals, right?
A.
Yes.
Q.
That are in the collection that are within
the animal training department.
are trained in some way, right?
7
8
9
10
A.
That is, animals that
Yes, but that's certainly not my only
responsibility.
Q.
Certainly, and I don't mean to suggest
otherwise.
11
A.
Okay.
12
Q.
That's one of your responsibilities?
13
A.
Yes.
14
Q.
And you're responsible for show performances?
15
A.
Yes, I am.
16
Q.
And, you're responsible for the training of
17
the animals' husbandry behaviors?
18
A.
Yes, I am.
19
Q.
And, you're responsible for all the people in
20
the animal training department and for their
21
professional development?
22
23
24
25
A.
I'm responsible for their safety and
professional development, yes.

JUDGE WELSCH:
Excuse me, Mr. Black.
Is
there anybody in here that's going to be a witness in
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this case?
Some people just came in.
to be witnesses?
going to be witnesses in the case?
(No Response)
Do you know whether or not you're
JUDGE WELSCH:
Go ahead, I'm sorry.
MR. BLACK:
BY MR. BLACK:
Q.
10
Are you all going
Okay, thank you.
Thank you, Judge.
And, now, at the Shamu Stadium today, there's
somewhere around 27 trainers?
11
A.
That's a good guess.
12
Q.
There may be one or two more?
13
A.
Right.
14
Since my deposition, it may have
changed by one or two, but it's around that number.
15
Q.
16
Orlando Park?
17
A.
Yes.
18
Q.
How about at other parks?
19
20
21
22
23
And, today, there are seven killer whales at
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?
24
A.
Yes.
25
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.
second word is P-a-r-q-u-e?
L-o-r-o and the
A.
Yes.
Q.
Spanish for Parrot Park?
A.
I don't speak Spanish.
Q.
And Sea World has five whales at Loro Parque?
A.
There are five whales at Loro Parque.
10
Q.
Are they all Sea World-owned whales?
11
A.
One of the whales at Loro Parque is a young
I'm sorry.
12
calf, and I'm not the person to speak to regarding who
13
owns the whale.
14
15
Q.
So, the four adult whales -- would you call
them adult whales?
16
A.
Yes.
17
Q.
The four adult whales are Sea World-owned
18
whales?
19
A.
To my knowledge, yes.
20
Q.
And, then, Sea World has a whale that's at
21
Marine Land in Niagara, Canada?
22
A.
Ikkika.
23
Q.
Did you say "Ikkika"?
24
A.
I'm sorry, I-k-k-i-k-a.
25
Q.
You didn't do anything wrong.
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I was just
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trying to make sure I know how to pronounce it and
pronounce is properly.
And, in your position with Sea World that we
have talked about, you worked closely with senior
trainers, right?
A.
Yes.
Q.
And, you still work closely with senior
trainers?
A.
Yes.
10
Q.
Including senior trainers in Shamu Stadium?
11
A.
Yes.
12
Q.
And, you also as having been a senior
13
trainer, you have a good idea what the responsibilities
14
of trainers are today; is that right?
15
A.
Yes.
16
Q.
And, a good idea of what the responsibilities
17
were when you were a senior trainer in the mid-1990's?
18
A.
Yes.
19
Q.
Now, one of the things that goes on at the
20
stadiums is show performances?
21
A.
Yes.
22
Q.
And, tell us what a show performance is, or
23
24
25
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.
between a show performance with our animals and any
other interaction is that there is an audience and
there's a sound system.
The difference
Other than that, you'll find pretty much a
lot of the same components.
When it comes to
interacting with our killer whales, a show performance
is much like everything else that happens in the
stadium.
10
Q.
But, it's not the same as what happens in the
11
stadium at other times, right?
12
but it's not the same thing as the interactions not
13
during show performances, right?
14
A.
There may be overlap,
I would say if you came to the stadium, and
15
you watched a session, and you if you were the only
16
person there, it's exactly like a show except for
17
there's no music and there's not a bunch of people
18
cheering.
19
trainers.
You see a series of interactions with the
20
Q.
Well, okay, maybe we're having --
21
A.
You can help me.
22
Q.
I don't want to be confusing, but the show
23
performances are put on to show the guests at the park
24
various behaviors that the whales can do, right?
25
A.
And, there isn't any difference between the
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objective of the show and the objective of the other
interactions we do.
3
4
Q.
No, I'm asking at the show, you display those
animals performances to the public, right?
A.
Yes.
Q.
And, you choose which animal behaviors,
tricks, whatever you want to call them, you choose which
ones to show to the public, right?
A.
We will make a plan before a show.
The plan
10
will have different components, different animals or
11
different behaviors.
12
however, will contribute to the training in the back.
13
What happens in the back will contribute to the training
14
in the show.
15
Q.
What you would see in the show,
I'm not asking that question, though.
16
not trying to confuse you.
17
on actually in a show?
I'm
I'm asking about what goes
18
A.
What goes on in a show performance?
19
Q.
The show performance.
For example, you don't
20
do gastric procedures on whales in the show in front of
21
all the folks in the large Shamu Stadium?
22
A.
To be honest with you, there are behaviors we
23
don't do during a show because they wouldn't be
24
something that most of the audience would enjoy and it
25
would affect them like seeing some of the other
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behaviors that we do.
in the shows contribute to our ability to train a
gastric sample.
However, the training that we do
There are several behaviors going on during a
show, and the behaviors that are going on in the show
contribute to our other training.
While I might not ask an animal to hold their
mouth open while I put a tube in to collect the gastric
sample, I very well may use a show opportunity to have
10
an opportunity to reinforce the animal for holding his
11
mouth open for an extended period of time or for taking
12
an approximation of it.
13
I often do that during the show because the
14
show environment is a very positive one, and it can
15
contribute to their training for that behavior.
16
wouldn't put a gastric tube, you will very often see a
17
presentation during the show where we're asking the
18
animal to roll over and put their tail into my lap.
19
This is rehearsal for a voluntary --
20
MR. BLACK:
While I
Your Honor, if I might, I would
21
move to strike everything about the answer that wasn't
22
an answer to my question.
23
JUDGE WELSCH:
Overruled.
Mr. Black's question,
24
I think, just goes to what behaviors are you doing
25
during 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 then
I got a litany --
JUDGE WELSCH:
MR. BLACK:
7
8
9
What was the behavior?

I asked about gastric procedures
and whether those were performed during the show.

JUDGE WELSCH:
Overruled.
Let's go on.
Go
ahead.
10
BY MR. BLACK:
11
Q.
And, I know you perhaps -- I don't know
12
whether you're nervous or whatever, but I would ask if
13
you could listen to my questions, and just kind of
14
rather than telling what you think the Judge needs to
15
know, because you will have an opportunity on your
16
examination by Sea World, limit it to answering the
17
questions I'm asking.
18
A.
All right.
19
Q.
And, so in answer to my question, there are
20
only certain behaviors that Sea World chooses to put on
21
or display during the show, and the answer to that
22
question is "yes"?
23
A.
Am I allowed to ask you a question?
24
Q.
Certainly.
25
A.
Can you please define "certain behaviors" for
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1
2
3
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 select
certain ones, I think you used the term that the public
would like to see?
A.
Yes.
I select what the public would like to
10
see and behaviors that would contribute to the animal's
11
growth, the animal's development.
12
Q.
13
JUDGE WELSCH:
14
15
And the repertoire of behaviors.

Are you, as a curator, the one
that decides on the show behaviors?

THE WITNESS:
I certainly don't map out every
16
single show for the trainers.
17
management map out the shows.
My assistant curators and
18
JUDGE WELSCH:
But it's under your supervision?
19
THE WITNESS:
It is.
20
JUDGE WELSCH:
You supervise the shows and what
21
behaviors you're going to show?
22
THE WITNESS:
23
BY MR. BLACK:
24
Q.
25
Yes, I do.
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 protocols
are adhered to; the protocols for safety?
A.
Yes.
Q.
Now, if I might, the main part of safety is
7
8
9
10
11
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 of
12
confusing.
Are you talking about safety for the trainer
13
or safety for the whales?
14
MR. BLACK:
15
BY MR. BLACK:
16
Q.
Safety for the trainers.
The main part of that is training the
17
trainers, and training the trainers how to train the
18
animals?
19
A.
Yes.
20
Q.
So, the principal way that you keep trainers
21
safe is through training; a program of training the
22
trainers, if you will?
23
A.
24
animals.
25
Q.
That's only one component.
We train the
It's only one component, but you train the
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animals through the training of your trainers to be able
to 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.
10
Q.
Do you disagree?
11
A.
The most important, the primary --
12
Q.
Do you disagree with those adjectives?
13
A.
I do not.
14
Q.
Then, we're on the same page.
15
16
Indeed, you train trainers on standard

operating procedures or SOP's, right?
17
A.
Yes.
18
Q.
And, in fact, the SOP's, if you will, that's
19
the main component of Sea World's written training to
20
the trainers?
21
A.
Yes, the written training is a component and
22
the SOP's.
23
are a lot of written components.
24
25
Q.
The manuals are the main component.
There
But, the SOP's are the main thing you rely
upon in training the trainers?
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A.
I would say they're one thing.
When we're
training the trainers, we use a system of check off, and
I'm not sure what you're referring to when you say our
SOP's.
that has all the written operating procedures or all the
documents that complement that manual when we're doing
our training.
Q.
9
10
11
12
I don't know if you're referring to the manual
The SOP's are a single document.
It has SOP
in the title, right?

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

Q.
And, so that you would agree, then, that
13
that's the main component of the written training of the
14
trainers.
15
training you provide the trainers, but the SOP's are the
16
main written training that the trainers receive?
17
18
19
20
21
22
23
24
25
A.
I'm not saying there aren't other kinds of
I would say it's a component of the training,
written training they receive.

Q.
It's not the main component of the written
training?
MS. GUNNIN:
Judge, I think he has asked that
four times.
MR. BLACK:
I don't know that I've gotten an
answer.
JUDGE WELSCH:
Overruled.
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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 SOP
document which is something we ask everybody to read.
But, there's a bunch of documents that complement that
that the trainer learns.
including the check-off sheets.
BY MR. BLACK:
Q.
I just want to know if you're
Well, the check-off sheets, they emanate from
10
making sure that the trainers are following the written
11
SOP document and doing what's in there, right?
12
A.
Yes.
13
Q.
And, the trainers actually sign a document
14
that indicates that they have read the SOP, right?
15
standard operating procedures.
16
A.
Yes, they do.
17
Q.
And, they sign that document because Sea
The
18
World wants to record, have a record that the employees
19
have read it, right?
20
A.
Yes.
21
Q.
And, the document that they sign, in it the
22
trainers acknowledge that their only skills are the key
23
to being safe, right?
24
A.
(No audible response).
25
Q.
Maybe I should get that document for you.
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1
2
have it here.
JUDGE WELSCH:
Mr. Black, why don't you just
leave it all in there right now.
Exhibit 1?
5
6
MR. BLACK:
You're talking about
Actually, it's Exhibit 2.
Excuse
me, it's Tab 2.
JUDGE WELSCH:
MR. BLACK:
(Whereupon, Complainant's Exhibit C-1 was marked
10
Tab 2.
It's in that first binder.
for identification and entered into the record).
11
BY MR. BLACK:
12
Q.
Ms. Clark?
13
A.
Yes.
14
Q.
You have in front of you what has been marked
15
for identification as Exhibit C-1, and this is the
16
written animal training SOP for Sea World of Orlando,
17
right?
18
A.
Yes.
19
Q.
Or at least this is a copy of what was in
20
effect on February 24, 2010, correct?
21
A.
22
MR. BLACK:
23
Yes.
We would offer C-1 into evidence,
Your Honor.
24
MS. GUNNIN:
25
JUDGE WELSCH:
No objection, Your Honor.

C-1 is admitted without
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1
2
3
objection.
(Whereupon, Complainant's Exhibit C-1, previously
marked, was admitted into evidence)
BY MR. BLACK:
Q.
And, if you would turn to the very last page.
A.
(Witness complies).
Q.
So, the last page which --
MR. BLACK:
I just read it.
And, Your Honor, just so you
understand how we've marked documents, there are Bates
10
numbers in the lower, right corner, and so the Bates
11
number on this on the last page is Sea World 1108.
12
JUDGE WELSCH:
13
MR. BLACK:
Okay, thank you.

And just for the record for the
14
Court Reporter, the first page of this document is Sea
15
World 959 so it runs that Bates number range.
16
JUDGE WELSCH:
17
BY MR. BLACK:
18
Q.
19
Okay.
So, this last page is the page that the
employees sign, right?
20
A.
Yes.
21
Q.
And, they sign it to document that their own
22
skills are the key to being safe.
23
Do you see the sentence that starts:
24
"I understand that my skills, experience and
25
application of training techniques -- -"
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A.
"Paired with my ability to evaluate animal
behavior, the key to safe trainer/animal
interactions."
Q.
So, you would agree with me that that really
means that their own skills, skills being an
accumulation of their experience and applying and
evaluating the animal behavior and training techniques.
Yes?
9
10
11
12
A.
They acknowledge that their skills contribute
to a safe environment.
Q.
That they're the key to being safe; that's
the key to safe trainer/animal interactions, right?
13
A.
Yes.
14
Q.
And, this also documents that as part of
15
that, that their ability to evaluate behavior is part of
16
the key as well to being safe, right?
17
A.
Yes.
18
Q.
And, it also documents that the trainers
19
realize that there's an inherent risk or a calculated
20
risk in being a trainer, right?
21
A.
Yes.
22
Q.
And, there are calculated risks in being a
23
trainer.
24
A.
I would agree with that.
25
Q.
So, then, you would agree that the key to
You would agree with that?
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safety is training?
A.
I agree.
Q.
And, trainers are trained to protect
themselves.
right; training the trainers to protect themselves?
A.
I mean, that's what this SOP is about,
The trainers are trained, they are equipped
with the knowledge to carry out safe animal
interactions.
Q.
"Equipped" meaning they're trained so that
10
they can work with animals in a way that is safe for the
11
animal but also safe for them?
12
A.
Yes.
13
Q.
And, the trainers are trained about different
14
scenarios or scenarios, depending on your preference on
15
how you say that word, right?
16
A.
Yes, they are.
17
Q.
And, they're trained about what has happened
18
before; that is, the experience with whales previously
19
and what Sea World has seen?
20
A.
Yes.
21
Q.
And, part of the training is to train the
22
23
trainers to see what Sea World calls precursors, right?

A.
Train the trainer to recognize different
24
kinds of behavior.
Some of those behaviors are
25
precursors to other behaviors.
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Q.
No, I'm not saying that they're not trained
on other things, but part of the training is to see what
Sea World refers to as precursors, correct?
A.
Part.
A precursive behavior is a behavior that
happens before another behavior.
sure that I understand your -- it's any other behavior
that's a precursor.
8
9
Q.
So, I want to make
And, I appreciate your not wanting me to
misuse the term.
I'm using the term that Sea World
10
used, which is training the trainers to see precursors.
11
Then, we can talk about a definition of "precursor."
12
A.
To recognize precursive behavior.
13
Q.
And precursive behavior or precursors doesn't
14
need to be -- I've seen a lot of documents that say
15
precursors.
16
or are those interchangeable?
17
18
19
20
21
22
23
A.
Is that different than precursive behavior,
I was raised with a doctorate in English, so
I can't see using it that way.

Q.
I think I'm going to flunk your class if I
have to -A.
I would be comfortable using precursors if
you would like me to use it that way.

Q.
I just want to make sure that when you say
24
precursive behavior, that's the same as what the
25
documents 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 or
signal that the whale may do something that isn't wanted
or 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 undesirable
10
behavior.
11
behavior, something that happens before a behavior.
12
So, what I think you're talking about is
13
14
Precursors are precursors to any kind of
precursors to undesirable behavior.

Q.
In the safety realm, in the safety context,
15
the safety of the trainers, precursor would be
16
undesirable behavior?
17
A.
Okay.
18
Q.
Well, I don't want you to -- I mean, what
19
20
part of that do you disagree with?

A.
I'm a behaviorist and precursors are not
21
associated with undesirable behavior, but I understand
22
that you're trying to --
23
JUDGE WELSCH:
You're making a distinction
24
between the undesirable behavior and the behavior that
25
predates 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.
precursor to unwanted behavior, yes, we train our
trainers to recognize precursors to unwanted behavior.
BY MR. BLACK:
Q.
A precursor to aggressive or a
And, that's one of the key parts of keeping
the trainer safe?
10
A.
Yes.
11
Q.
Now, the trainers don't memorize their
12
training materials, do they?
13
A.
No, they do not.
14
Q.
I mean, I could quiz you on this and probably
15
find some details that you may not have in your memory
16
bank, right?
17
A.
Absolutely.
18
Q.
And, you would agree with me that trainers
19
are humans and they make errors?
20
A.
Yes.
21
Q.
Sometimes.
22
A.
Yes.
23
Q.
And, Sea World has incident reports that are
They make mistakes?
24
replete, to use an English word, I suppose or a big
25
word, 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.
A.
No.
10
Q.
And making an error, a trainer making an
11
You don't disagree with that?
error that could result in harm to the trainer?
12
A.
Yes.
13
Q.
So, that trainer could make the wrong
14
determination or wrong judgement call, and that might
15
end up resulting in the whale doing something that
16
injures the trainer, right?
17
A.
The trainers that are interacting with the
18
whales that they are interacting with are well prepared
19
to interact with the whales, so the frequency of a
20
trainer making a bad call or missing a behavior cue is
21
minimal.
22
Q.
But, I'm not asking you about frequency.
I'm
23
asking you about the consequence, and the consequence of
24
making an error could be that the trainer suffers harm?
25
A.
That's something that we teach our trainers,
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1
2
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 the
trainer, that the trainer hasn't been trained on?
A.
I've been at Sea World reviewing for
10
25 years, and in 25 years, I have reviewed one
11
behavioral incident that did not show something that
12
would I have done differently.
13
indicators in there of behavioral cues that were missed,
14
environmental cues that were missed.
15
only had that experience once.
16
17
Q.
There weren't any
In 25 years, I've
You're talking about Ms. Brancheau's death
that incident of environmental cues?
18
A.
Yes, I am.
19
Q.
But, when you evaluated her, you said that in
20
25 years, only once have you not been able to find
21
environmental cues or errors.
22
in hindsight after the incident has happened, right?
23
A.
You're now talking about
In my experience as a killer whale trainer,
24
in 25 years, I've certainly been a part of many
25
interactions with animals where we chose not to
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interact, where we chose to step away.
reviewed situations from extremely minor to the tragedy
of February 24th last year, and so I've been involved in
all of that.
Q.
I have also
So, you would agree, though, that the
trainers, while you might afterwards adjudge that there
were environmental cues or other cues that the trainer
could have picked up on, in fact, that's only in hind
sight that that evaluation can be said with such
10
11
certainty?
A.
Some instances, not every instance.

Yes, we're not going to say every instance.
12
I would probably say at Sea World of Florida, before the
13
tragedy with Ms. Brancheau, we had gone five years
14
before even reviewing, and that is how well equipped the
15
trainers are and how safe they're interacting with the
16
killer whales.
17
Q.
I'm not asking about numbers of incident
18
reports and things that Sea World decided are reportable
19
incidents.
20
that sometimes trainers do their best to try and follow
21
all of their training and still end up in the harsh
22
light of analysis afterwards having made errors?
I'm only talking about the smaller point
23
A.
Sure.
24
Q.
And, you know that the harm that could come
25
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?
10
Q.
I said that the harm that could result --
11
A.
Okay, yes.
12
Q.
-- from the errors.
13
It could be grabbed,
right?
14
A.
A trainer could be grabbed, yes.
15
Q.
Or a trainer could be physically displaced by
16
the killer whale?
17
A.
Yes.
18
Q.
And, that displacement, that can happen in
19
water?
20
A.
Yes, it can.
21
Q.
With the trainers in the water with the
22
whale.
23
term loosely, but that could happen around the edge of
24
the pool, right?
25
That could happen on dry land -- and I use that
A.
Yes.
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Q.
And killer whales, they could come out and
they could bump into you and displace you while you're
on 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?
10
A.
Yes.
11
Q.
Or perhaps it was something totally
12
13
unexpected?
A.
I have not reviewed an incident where I
14
couldn't find a reason that it was completely
15
unexpected.
16
Q.
Well, I guess this is definitional when we
17
say unexpected.
You would agree that it could have been
18
unexpected to the trainer acting in the moment?
19
A.
To that trainer?
20
Q.
Yes.
21
A.
Who had maybe missed a behavioral cue, yes.
22
Q.
You would agree with that, wouldn't you?
23
A.
Yes.
24
Q.
If you disagree with something that I say or
25
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.
4
5
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.
10
Q.
And, at Sea World, in fact, they recognize
11
that killer whales are -- and tell me if you disagree
12
with this -- a large, powerful and potentially dangerous
13
animal?
14
A.
Yes.
15
Q.
In fact, that's written in several places in
16
17
18
19
20
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?
21
A.
Yes, it is.
22
Q.
So, killer whales, you said they often weigh
23
6,000 pounds or more, right?
24
A.
Yes, they do.
25
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 being
can.
Q.
That's where I was going.
In fact, you even
10
train the trainers that if you're not safe around these
11
animals, you might not go home.
You might die?
12
A.
I know exactly where you taking this.
13
Q.
From your deposition.
14
A.
From my deposition, yes.
15
Q.
Those were your words, right?
16
A.
Those were my words.
It is making it very
17
clear to the trainers that their safety is my number one
18
priority, and I take it very seriously, and I expect
19
them to take it as seriously as I do and expect them to
20
follow those protocol.
21
Q.
And, so to avoid the potential harm, the
22
trainer knows these precursors or precursive behavior,
23
right?
24
25
A.
Yes.
We talk through many scenarios, we
watch 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 everything
in the environment.
The behavior may be of other whales
in the facility, it may be the weather, it may be
something else.
You have to recognize every single
10
thing that's going in your environment when you're in
11
front of a killer whale.
12
So, it might not be the killer whale.
It
13
might be another thing going on in the environment that
14
you would want to bring into your knowledge of the
15
immediate event.
16
17
Q.
And I apologize for interrupting you, I
wasn't sure that you were finished.
18
So you would agree with me that that
19
environment, other whales in the environment, whether
20
the other things you mentioned, those play into or those
21
can be defined as a precursor, right?
22
23
24
25
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 to
respond to it?
A.
No.
What I'm saying is I might be working
with killer whales in front of me, but exhibiting no
signs of behavioral precursors associated with unwanted
events, and I might choose that the environment has
changed such that I'm going to change the way I'm
interacting with the whale.
9
10
Q.
Okay, and I appreciate that those
determinations --
11
A.
So, I don't have to see a precursor from the
12
whale I'm interacting with to change the way I'm
13
interacting with that whale.
14
in the environment.
15
Q.
I'm seeing something else
Right, but if you see a precursor or if there
16
is a precursor, I'm sorry, then the trainer has to see
17
it or recognize it in order to be able to respond to the
18
precursor?
19
A.
Yes.
20
Q.
I mean, that's sort of by definition, right?
21
A.
Yes.
22
Q.
If you don't see a precursive behavior, then
23
there's no way to respond to it.
24
that?
25
A.
Would you agree with
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.
going be acknowledging every single thing.
sense for the trainer that you're going to acknowledge
every single thing in your environment that will
contribute to this whale's behavior that's in front of
me.
Q.
I'm
It's common
I mean, the trainers have an awfully lot of
10
things that they have to evaluate and keep in mind in
11
interacting with the whales, right?
12
A.
Sure.
13
Q.
I mean, they have to not only keep their eyes
14
out for precursors, right?
They have to keep their eyes
15
out for some of the other things you mentioned?
16
A.
Yes.
They're well equipped and well trained.
17
Q.
And, I'm not asking whether they're well
18
equipped and well trained.
We haven't cited Sea World
19
for failure to train here.
You understand that, right?
20
A.
Yes.
21
Q.
So, it's not saying that there's something
22
deficient about the training program.
23
talking about how the training program works in
24
operation and how it's supposed to work.
25
A.
We're just
Okay.
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1
2
Q.
So, you can't expect a trainer to see
everything, right, that goes on in the environment?
A.
I expect the trainers -- my expectation of
them is to be aware of and make decisions about every
single 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 not
always the case, no matter how well you've trained them?
10
A.
Yes.
11
Q.
So, if the trainer doesn't see the precursor,
12
then, of course, as we've said, the trainer can't take
13
action based on the precursor that might avoid undesired
14
behavior?
15
A.
You asked me that, and I said, "yes."
16
Q.
Well, I asked this question a little bit
17
differently, if you would.
18
question is "yes"?
19
20
21
22
23
So, your answer to this
A.
I don't remember the question now for sure.
Q.
I don't want you to say, "yes," if you're not
Yes.
sure what the question is.

A.
I guess I feel like I can answer -- I'll
24
repeat what I think I'm answering.
25
person have to recognize a precursor in order to respond
CARLIN ASSOCIATES
You asked me does a
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1
2
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 these
behavioral determinations in order to avoid the unwanted
behavior, right?
A.
Yes.
Q.
So, you would agree, then, that even if the
trainer doesn't make an error, they can still be harmed
by a killer whale even if they don't make any sort of
10
error whatsoever because there's no precursor that they
11
missed, then they could still be harmed by the whale,
12
right?
13
A.
Yes.
14
Q.
Now, changing gears here slightly but still
15
talking about training, you train the trainers on
16
precursors to situations you've had in the past in Sea
17
World's experience?
18
A.
Yes.
19
Q.
Sometimes those hypothetical situations you
20
We also use hypothetical situations.
refer to those as scenarios?
21
A.
Scenarios.
22
Q.
And, you use those scenarios, but you also
23
use the actual instances from the past to help the
24
trainers better make the appropriate decisions?
25
A.
I will use anything in my history and
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anything in Sea World's history, and I will be
hypothetical and create scenarios that we've never seen
to have discussions around safety interacting with
killer 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 of
information are you drawing upon in creating a
10
hypothetical?
11
A.
I create hypothetical scenarios based on my
12
25 years of interacting with these animals, and I will
13
draw up and I'm known for walking up to a group of
14
people and saying, "what would you do if."
15
I drawing it from?
16
well as creating hypotheticals that I think might
17
happen.
So, where am
I'm drawing it from experiences as
18
Q.
Okay.
19
A.
Even if I think there's no chance of them
20
happening, we'll talk through the behavior analysis as a
21
part of what we do.
22
23
Q.
You talk through things that you think have
no chance of happening?
24
A.
Yes, we do.
25
Q.
What is the function of that?
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A.
The function of that is creating behavioral
discussions, creating discussions around behavior and we
glean so much from talking about a craft.
contributes to development of both people and animals.
Q.
It
So, does that help the trainers avoid
precursors -- does that help trainers to respond to
precursors that you've seen in the past?
8
9
A.
I think any behavioral discussion that we
have and any interactions with the animals contributes
10
to that trainer's knowledge of killer whales in general,
11
killer whale interaction, previous trainers' experience.
12
So, sure, it helps equip them.
13
discussion, any time you articulate behavior, it's
14
adding to their knowledge about killer whales and
15
interacting with them.
16
Q.
Any behavioral
So, if there's no similar precursor in the
17
past, you can't train the trainer on how to handle
18
something that hasn't happened, right?
19
A.
I'm not talking about making up precursors.
20
I'm sorry, you misunderstood me.
I'm talking about
21
creating events, what if X happened?
22
first step?
23
talk about behavior, but there's not a whole lot of
24
behavior I haven't witnessed.
25
behavior scenarios.
What would be your
What would be your second step?
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I will talk about
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I'm not inventing precursive behavior that
we've never seen before, but I will create a scenario
that we haven't been faced with.
Q.
So, then, you would agree if you haven't had
a similar precursive behavior in the past, you can't
then train the trainer how to handle that precursive
behavior?
8
9
A.
No.
I'm sorry if you thought that's what I'm
saying.
10
Q.
You're not saying that?
11
A.
I'm not saying that.
12
Q.
Because Sea World didn't train Ms. Brancheau
13
about what to do if Tilikum grabbed her, right?
14
A.
Indeed, we did.
15
Q.
You did?
16
A.
We train trainers how to respond in the event
17
they ended up in a difficult situation with Tilikum.
18
Q.
Okay.
19
A.
But, we did not anticipate Tilikum would grab
20
nor did we ever see him show any precursor to grab a
21
trainer.
22
Q.
So, even though you had seen that precursor
23
with other whales, because you hadn't seen it with
24
Tilikum, you didn't train on how to react to it with
25
Tilikum should he grab you.
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A.
That's not fair.
We did train it.
We did
generally approach how to react if you find yourself in
the situation where you are not -- in a situation you
would rather not be in with a killer whale, we train our
trainers how to react.
6
7
8
9
10
Q.
Did you train your trainers how to react if
Tilikum pulled them into the water?

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

Q.
For the trainer, did you train them how to
11
react if they themselves were pulled into the water with
12
Tilikum; what they, the victim if you will, should do if
13
they're pulled into the water with Tilikum?
14
A.
Yes, I did.
15
Q.
What did you --
16
A.
I didn't say, "If you're pulled into the
17
water with Tilikum, here's what you should do."
18
phrased it, "If you end up in the water with Tilikum, if
19
you ended up in the water with any killer whale, and I
20
don't think this is a situation you want to be in.
21
is the way I think you should react and what I think you
22
should do."
23
Q.
Here
And, we talk through those scenarios a lot.
Then, do those scenarios include how not to
24
have yourself be in a position where Tilikum pulled you
25
into 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 you
believe you can move away.
JUDGE WELSCH:
I'm a little confused.
I just
want to make sure I'm understanding what the testimony
is.
In terms of the training that you provided the
trainers prior to the time of the accident in February
2010, I'm confused in terms of the question and the
10
11
answer.
Was the training specifically with regard to what
12
to do with Tilikum, or was the training with regard to
13
what to do with killer whales in general, the seven
14
killer whales at Sea World of Florida or was it
15
specifically to Tilikum?
16
THE WITNESS:
I can make it very clear.
17
Tilikum had his own set -- before February 24th, Tilikum
18
came to us from another facility.
19
behavioral history than other whales, and he had a
20
different set of protocols.
21
I can refer to it as a chapter, in the SOP.
22
23
24
25
JUDGE WELSCH:
He had a different
He had his own chapter, if
So, you had some precursors in
some of the other behaviors?

THE WITNESS:
Well, precursors would be a
general term for all killer whales, but as far as how we
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interacted with Tilikum, there were behaviors we did not
do with Tilikum that we did with other whales.
his own set of protocols.
JUDGE WELSCH:
He had
And there's no other whale -- the
seven whales were treated differently?
whales were all treated the same in terms of behaviors?
7
8
9
10
THE WITNESS:
The other six
Are you asking me at the time of
the incident?
JUDGE WELSCH:
Prior to the incident.
THE WITNESS:
There was one other whale we
11
didn't interact in the water with, but other than that,
12
every other whale.
13
14
JUDGE WELSCH:
You looked at it in terms of
behaviors were consistent among the other five whales?
15
THE WITNESS:
Right.
16
JUDGE WELSCH:
Tilikum, though, had different
17
18
behaviors than the other five whales?

THE WITNESS:
He had different protocols from
19
the other five whales, and if a whale was in Tilikum's
20
environment, that whale adopted Tilikum's protocols.
21
MR. BLACK:
22
BY MR. BLACK:
23
Q.
Thank you, Judge.
And, in training the trainers not to put
24
themselves into a vulnerable position with Tilikum, did
25
you train them to keep away from his mouth?
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A.
No, I did not.
We care for Tilikum
performing behaviors that were around his mouth.
trained him on gastric tube behavior and that is around
his mouth.
Tilikum's mouth.
6
7
8
9
Q.
We
It was not protocol to stay away from
Including during interactions with him that
weren't related to husbandry or medical care?

A.
That's true because all of the interactions
that we do contribute to a reinforcement history with
10
that animal which contributes to husbandry procedures.
11
So, we certainly would rehearse behaviors associated
12
with husbandry procedures in other environments.
13
Q.
So, it was okay, if you will -- it was not a
14
problem for Dawn to be in close proximity, Ms. Brancheau
15
to be in close proximity to Tilikum's mouth on the date
16
of the accident?
17
18
19
A.
Dawn did not break protocol on the day of the
accident.
Q.
And, you relied on her judgement to make the
20
determination that would protect herself from Tilikum
21
ultimately?
22
A.
What are you saying to me?
23
Q.
I'm asking.
24
A.
Did we rely on her judgement to -- her
25
judgement coupled with all of the training, all of
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Tilikum's training, all of our protocol based on
Tilikum's behavioral history, yes.
MR. BLACK:
I want to change to a different
topic here, and I don't know if the Court -- I'm happy
to keep proceeding -- I don't know.
JUDGE WELSCH:
MR. BLACK:
JUDGE WELSCH:
9
10
Ten, fifteen minutes.

Why don't we go ahead and finish
the Direct Examination, and then we'll take a lunch

break.
11
MR. BLACK:
12
BY MR. BLACK:
13
Q.
14
How much longer on Direct?
Very good.
Now, because Sea World wants their employees,
their trainers, obviously, to be safe, right?
15
A.
Yes.
16
Q.
I mean, so if there's an incident, if there
17
is an accident, that's a concern for Sea World?
18
A.
Absolutely.
19
Q.
And, if there's an incident, meaning more
20
than just an accident, there's a close call or
21
something that could have ended up with something bad,
22
that, too, is a concern to Sea World, right?
23
A.
We address each and every behavioral event
24
that might contribute to the safety of the animals or
25
the trainers very, very seriously, indeed, yes.
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Q.
And, you don't want to delay in any way
addressing that incident or that behavioral issue,
right?
A.
It's immediately addressed on the floor.
As
far as the written procedures, sometimes that will take
time but it's immediately addressed.
Q.
I mean, obviously, you want to address it as
quickly as you can, and you're saying immediately is
pretty close to as quickly as you can, right?
10
A.
Yes.
11
Q.
And, you don't want to make it more dangerous
12
by not addressing it, right?
13
A.
No.
14
Q.
So, you want to be as safe or even safer than
15
you were when you were making your choice to address the
16
concern, right?
17
18
19
20
A.
be safer?
Q.
That is, you want to take action.
While I'm reviewing something, I'm going to

Is that your question?
Well, at least as safe and if you can, safer,
right?
21
A.
Sure.
22
Q.
That's the reason for addressing the concern,
23
right?
24
A.
Yes.
25
Q.
So, now, there have been injuries at Sea
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World while trainers were interacting with killer
whales, 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 the
trainers out of the water, right?
10
A.
11
Q.
In accidents and injuries that you have had,
12
Sea World has had accidents occur where they have pulled
13
all the trainers out of the water, right?
14
A.
When Sea World had an incident on
15
February 24, 2010, we suspended all water interaction
16
following that incident.
17
Q.
And, that continues today.
There has been
18
no water interaction with the whales in the 19 months
19
since February 2010?
20
A.
That's correct.
21
Q.
But --
22
A.
Except for husbandry procedures.
23
Q.
If there was an emergency incident where you
24
25
did water work, right?

A.
Yes.
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1
2
Q.
Aside from that emergency or perhaps other
emergencies, 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
10
Kasatka incident?
11
12
13
14
A.
For whatever reason, I'm not recollecting
Q.
It happened in December of 2009 in the Loro
that.
Parque incident, right?
15
A.
Yes.
16
JUDGE WELSCH:
So, when you said Sea World,
17
you're not talking about Orlando; you're talking about
18
all the parks?
19
MR. BLACK:
That was all the parks.
20
THE WITNESS:
We have not suspended water
21
interactions in Sea World.
22
February 24th event with Ms. Brancheau, we have not
23
suspended water interaction at Sea World around an event
24
that happened at Sea World Orlando.
25
Other than following the
So, if he's talking about an event that happened
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at Sea World of California in 1988 and an event that
happened at Loro Parque, and he's also talking about an
event that happened in San Diego.
So, at Sea World Orlando, February 24, 2010, is
the first time we've suspended water interaction at Sea
World around an event that happened in Sea World
Orlando, but corporately we have suspended water
interaction.
9
10
JUDGE WELSCH:
So, all the parks have suspended
water interactions since February of 2010?
11
THE WITNESS:
Yes.
12
JUDGE WELSCH:
But, the other incidents, it
13
might have been suspended at a particular facility where
14
the incident happened in 1988 and 2006, but it wasn't
15
suspended corporate-wide?
16
THE WITNESS:
It was suspended corporate-wide.
17
The incident happened elsewhere, but we suspended water
18
work here as we reviewed the incident.
19
20
JUDGE WELSCH:
Okay, I misunderstood.
Thank
you.
21
BY MR. BLACK:
22
Q.
And, just so I'm clear, after the Loro Parque
23
incident, there was a suspension of water work at all
24
three parks, right, in December of 2009?
25
A.
Yes, short term until we reviewed the
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incident.
2
3
Q.
That was the immediate response was to
suspend it, right?
A.
Yes.
Q.
And, even here, the immediate response was to
suspend water work immediately after Ms. Brancheau was
killed, right?
A.
Yes.
Q.
And, you're not sure about the 2006 Kasatka
10
incident and suspending water work after that happened?
11
A.
I'm not sure in 2006.
I was not on the
12
ground at Shamu Stadium, so I'm having a difficult time
13
remembering whether they pulled them from the water or
14
not.
15
16
If they did, it was for a short period.

Q.
So, you're not sure about 2006, and you're
not sure about 1988 as well?
17
A.
I'm positive about 1988.
18
Q.
So, that was only --
19
A.
I was employed at Sea World of Ohio and did
20
not do killer whale interaction for an extended period
21
of time.
22
Q.
23
my ears.
24
or, no, water work was not suspended in 1988?
25
A.
'88.
Maybe I have -- I must have a little wax in
Are you saying, yes, water work was suspended
In 1988 I'm clear water work was suspended.
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Q.
Was suspended?
A.
Yes.
Q.
At all of the Sea World facilities?
A.
Yes.
Q.
So, we have at least three instances, you
would agree, that water work was suspended?
A.
Yes.
Q.
And, at Sea World today, they still have
their doors open for business, right?
10
A.
Yes.
11
Q.
Sea World today, they still advertise, "Come
12
to Sea World"?
13
A.
Yes.
14
Q.
And, they still have trainers, killer whale
15
trainers, right?
16
A.
Yes, we do.
17
Q.
And they still have killer whales today,
18
19
20
right?
A.
We don't have as many killer whales as we had
before these limitations were put on.
21
Q.
But you still have killer whales?
22
A.
Yes, we do.
23
Q.
And, you still put on shows or performances?
24
A.
Yes, we do.
25
Q.
And, in fact, you had a brand new show that
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debuted this year sometime, right?
A.
Yes, we did.
Q.
So, Sea World has maintained operations while
not having killer whales in the water, right?
JUDGE WELSCH:
BY MR. BLACK:
Q.
Killer whales in the water?
Sea World has stayed in business and
continued operating without having the trainers
performing interactions in the water with the whales,
10
right, other than the limited exception that you
11
mentioned?
12
A.
Sea World is still in business.
I'm not
13
going to agree with you that being out of the water is
14
maintained on killer whale production.
15
Q.
But you would agree that Sea World --
16
A.
Sea World is still in business.
17
MR. BLACK:
18
Your Honor, I have no further
questions at this time.
19
Thank you, Ms. Clark.
20
JUDGE WELSCH:
21
22
We'll take a lunch break and be
back at quarter after one.
We stand adjourned.
I will instruct you not to discuss your testimony.
23
---o0o---
24
(Whereupon, the morning session
25
was adjourned at 11:50 a.m.)
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Afternoon Session
1:15 p.m.
JUDGE WELSCH:
Ms. Clark, I'll remind you you're still under
6
7
oath.
Ms. Gunnin, your witness.
---o0o---
CROSS-EXAMINATION
10
BY MS. GUNNIN:
11
Q.
Ms. Clark, I'm going to ask you some
12
questions to follow up on what Mr. Black asked you this
13
morning.
14
He asked you something about training, and to
15
give the Judge a full picture of training of the
16
trainers at Shamu Stadium, could you walk the Judge
17
through, how is that process?
18
when you are chosen to work at Shamu Stadium, how are
19
you trained?
20
A.
Beginning with day one,
There's a whole lot of training that goes
21
into training a trainer before they ever even get close
22
to a pool with killer whales in it.
23
The training starts with the day they come
24
into the stadium.
First, they have to be qualified to
25
be in the stadium.
If they're going to be interacting
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with killer whales, they need to have a certain number
of years of experience.
When they come to the stadium, the first
thing we do is we teach people how to move about the
stadium, we show them where our protocols are, and they
are assigned a mentor from the very beginning, and the
mentor is somebody who has been training killer whales
for at least eight or nine years.
9
10
11
12
13
JUDGE WELSCH:
What do you mean by protocols?
THE WITNESS:
Where our manuals are.
We ask
them to begin reading the manual.

JUDGE WELSCH:
Is that what you mean by
protocols?
14
THE WITNESS:
Yes.
15
JUDGE WELSCH:
There are manuals set up at
16
17
certain locations in the stadium?

THE WITNESS:
We show them where the hard copy
18
of the manuals are and we also show them how to locate
19
them on the computer.
20
So, their training begins the minute they come
21
into the stadium.
First, they have to be equipped to
22
come to the stadium.
23
that mentor is going to walk them through the training.
24
And, the training pretty much never stops, but it's very
25
thorough.
They are assigned a mentor and
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Before a trainer ever approaches a pool with a
killer whale, they have learned a lot about behavior,
they have learned about killer whale natural history,
they have learned about how to walk about the area on
the different surfaces that we have, they have learned
about how you carry buckets, and that's all before ever
approaching within ten feet of the pool.
So, we spend a whole lot of the time talking about
what killer whales are capable of and what killer whales
10
11
do, and how to approach them in their environment.

The mentor pretty much holds their hand throughout
12
the entire process, and the mentor has a check-off
13
sheet, and this check-off sheet has everything from what
14
this person reads, they're required to trail too.
15
this person know how to don a wet suit?
16
person know how you walk in the environment?
17
person equipped to be able to be around the killer
18
whales?
19
Does
Does this
Is this
And, as they learn more, they shadow numerous
20
sessions, they watch other trainers, watch trainers to
21
make it very clear, we're never working near the killer
22
whales by ourselves, and this was something I was trying
23
to be able to talk about but wasn't able to before.
24
25
When we interact with killer whales, no matter

what our level of experience is, we're not doing so by
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ourselves.
person has to be qualified to be watching the
interaction.
We always have somebody with us, and that
We call that person a spotter.
A spotter has a
whole series of training and protocols to pass before
becoming qualified to even be a spotter, to be able to
watch interactions.
8
9
The training that goes into preparing our trainers

to work with killer whales starts with physical
10
capabilities and then evolves.
11
how long would you like me to talk about that?
12
BY MS. GUNNIN:
13
Q.
I mean, I can talk --
How long does it take to have an actual close
14
interaction with the killer whale?
15
day one, you've met all the criteria, you've worked with
16
your mentor.
17
be before you're going to have that first close
18
interaction with a killer whale?
19
A.
If you start on the
What is the estimate of how long it would
At Sea World of Orlando, you're not going to
20
have your first close interaction with a killer whale
21
before 18 months to two years, and you're certainly not
22
going to be having tactile interactions where you are
23
what we call the trainer.
24
The trainer that the animals respond to signals with
25
before you're a senior trainer, or a senior trainer
We call it a control trainer.
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1
2
which would be at least three years of experience.

Q.
And, maybe for the Judge explain what would
be an close interaction with the killer whale?
does that mean?
A.
What
A close interaction with a killer whale, what
I would call a close interaction with a killer whale
anywhere within five feet, within five feet of the
killer whale.
Now, if you go up closer, the closer you're
10
going to be getting to the killer whale, the more
11
decisions you're going to be making with the killer
12
whale, more training is poured into you.
13
And, you won't be the person pool side making
14
decisions, behavioral decisions with the killer whale
15
until you've been interacting with killer whales for
16
more than three years.
17
Q.
Ms. Clark, after that three-year period, even
18
when you have your more seasoned trainers working at
19
pool side with the killer whales, do they ever work
20
alone with the killer whales?
21
A.
Absolutely not.
We have -- just to interact
22
with killer whales, there has to be a certain number of
23
people in the environment, and we don't ever interact
24
with them by ourselves.
25
The spotter has gone through a lot of training
We have a qualified spotter.
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individual to be being a spotter.
They have to be able
to recognize as much about behavior as the person
interacting with the killer whale.
And those spotters are at different levels,
depending on the experience level of the trainer doing
the interactions.
less experience the spotter is allowed to be.
we're never working with the killer whales by ourselves.
9
10
The more experienced the trainer, the
JUDGE WELSCH:
However,
Does the trainer become a spotter
or are they two different job titles?
11
THE WITNESS:
We perform both.
Sometimes you
12
are the control trainer in an interaction, and other
13
times you might be a spotter trainer.
14
qualified to interact with killer whales.
15
BY MS. GUNNIN:
16
Q.
And, maybe explain what the control trainer
17
is.
18
Explain to the Judge that would mean?
19
Both are
That's a term you've used a couple of times.
A.
The control trainer at Sea World -- this is
20
really in-house language -- the control trainer is the
21
trainer who is making behavioral decisions around that
22
particular interaction with that particular killer
23
whale.
24
25
If I'm doing interaction with a killer whale

and there's another killer whale in the pool, I would be
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the control trainer for the killer whale I'm interacting
with, and there might be another control trainer for
another killer whale, and we would have a spotter
trainer who is not interacting with the killer whale who
is watching over the interaction.
6
7
JUDGE WELSCH:
The spotter is watching over both
trainers?
THE WITNESS:
BY MS. GUNNIN:
Sure.
10
Q.
Ms. Clark, what is the purpose of a spotter?
11
A.
The purpose of the spotter is to be another
12
set of eyes.
13
because the safety of our trainers is the most important
14
thing to me.
15
decisions completely on their own.
16
It's to evaluate.
It's very important
I don't ever want them to be making
I want a second set of eyes to be able to
17
assess the entire environment and to assess the animal
18
that they're spotting as well.
19
fail safe -- fail safe isn't a good word -- your backup.
20
So, it's kind of like a
And, there's open communication between the
21
spotter and the trainer.
And, the trainer understands
22
that they are pretty much listening to whatever the
23
spotter directs because the spotter can evaluate
24
everything in the environment just as well as the
25
trainer can.
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JUDGE WELSCH:
During show times, is this setup
you have described in terms of -- I assume you have more
than one killer whale involved in the show at the same
time.
killer whales, and then you would have a spotter?
that the way it works during the show?
So, you would have a trainer for each of the
THE WITNESS:
Is
Let me make it really clear.
really wanted to expand on this a little earlier, but
our show time is just another interaction.
So,
10
everything I'm talking about that happens, you can
11
generalize to the show environment.
12
interaction.
13
It's simply another
And, we have at least one spotter, but depending
14
on where we are and how many whales are in the
15
environment, oftentimes we will have more than one
16
spotter spotting several trainers, depending on the
17
number.
18
JUDGE WELSCH:
So, there is not a ratio between
19
the spotters and the trainers?
20
spotter for two trainers or different trainers or --
21
THE WITNESS:
In other words, one
There is not a ratio documented
22
in the protocols, but I can tell you at Sea World of
23
Florida, if there are more than two whales in the
24
environment, we'll have more than one set of eyes
25
backing up the trainers.
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BY MS. GUNNIN:
Q.
How about with Tilikum?
What is the
difference in the protocols with regard to spotters for
Tilikum?
A.
Tilikum has always had his own set of
protocols.
Basically, that facility reached out to us and said, "We
think you are the right place to manage this killer
whale."
10
Tilikum came to us from another facility.
He came to us with a different behavioral
11
history than any of our other whales, and from the
12
moment he arrived at Sea World, only the most
13
experienced trainers interacted with that whale, and he
14
had his own set of protocols.
15
So, when you're talking to me about a trainer
16
who has just arrived at the stadium, I can tell you if
17
I'm teaching that trainer, I would be sure to include
18
that they are not to interact with Tilikum from anywhere
19
unless they have a qualified person with them.
20
when they would interact with Tilikum, it would be from
21
what I would call a very safe distance.
22
either be behind a six-foot panel of glass, or they
23
would be five feet away from his pool at the time.
24
would be ten feet today.
25
Q.
And,
They would
With Tilikum, can every trainer work with
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him?
A.
Absolutely not.
Are you talking currently?
Q.
At the time of the incident on February 24th.
A.
No, absolutely not.
Only the most
experienced group of trainers work with Tilikum, and in
order to become a member of Tilikum's team, which are
the people who actually physically work with him, you
would have to go through a lot more training and show
your management team and show me that you are capable of
10
making decisions that are appropriate around an animal
11
like Tilikum.
12
Q.
Back at the time of the incident,
13
February 24th, do you recall who were the members of
14
Tilikum's team?
15
A.
If I was refreshed, I could recall.
He had a
16
team that were dedicated to interacting with Tilikum.
17
He had another team that were qualified to be spotting
18
members, but he had a very, very, very experienced team
19
of trainers working with him.
20
21
22
Q.
How about specifically with Ms. Brancheau?
She was qualified to be on Tilikum's team?

A.
Absolutely.
Dawn Brancheau was one of our
23
most experienced killer whale trainers and had an
24
exceptional reinforcement history with Tilikum.
25
Q.
And, you've mentioned reinforcement history a
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couple of times.
understanding of what that means, can you define what
you're talking about when you say "reinforcement
history"?
A.
Sure.
Just so the Judge has a clear
A reinforcement history is basically a
history of oral interactions -- if I'm talking about a
person's reinforcement history with an animal, I'm
talking about all the interactions that Ms. Brancheau
had had with Tilikum and the success of those
10
interactions.
11
So, Dawn's reinforcement history with Tilikum
12
was lengthy and very positive.
An animal has a
13
reinforcement history as well.
A reinforcement history
14
is the history of the animal's behavioral response to
15
different events.
16
with Dawn was a very positive reinforcement history as
17
well.
So, Tilikum's reinforcement history
18
So, it encompasses all events to put it into
19
-- we have behavioral reinforcement histories with each
20
other already, you and I do.
21
a reinforcement history, a history of events and how we
22
have responded to those events.
23
24
25
Myself and Mr. Black have
Make sense?
JUDGE WELSCH:
here amazed.
Actually, I'm just sitting
I have some questions I want to ask you,
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but I'll let Ms. Gunnin ask you some questions.
BY MS. GUNNIN:
Q.
Ms. Clark, with regard to Tilikum, when
you're talking about his positive reinforcement history,
what kinds of things would have indicated to Sea World
that there was a positive reinforcement history with
him?
8
9
A.
Tilikum had been in our environment prior to
this time, since 1992, and had never given us any
10
indication that he would pull somebody into the water
11
with him.
12
Our history with Tilikum was, you know, there
13
are animals -- and I've worked with a lot of animals --
14
there are animals that are difficult to read, there are
15
animals that it takes a lot of experience to read.
16
Tilikum is an animal that you can assess
17
behaviorally very easily.
18
indicators if he was not responding well.
19
away, he will tighten up, he will vocalize, and these
20
behavioral cues are something that the trainer will --
21
he had never given us any indication, and even as he
22
would respond a little bit negatively to an event, he
23
recovered very quickly, and it was easy to recognize.
24
25
He gives you plenty of

He will swim
So, his behavioral history with us was a very

positive one; it was lengthy and positive.
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96
that's --
Q.
When did Tilikum come to the Orlando park?
A.
I would say 1992.
Q.
And, when he arrived and since you have cared
for him, what kind of close contact interactions would
you do with Tilikum?
A.
When he first arrived, we assessed his
behavior in our environment as the right thing to do.
We have a new whale with a history that we were not a
10
hundred percent, it wasn't comprehensive for us, he
11
comes from another facility, he comes to us after having
12
been in a facility that had a tragic event.
13
So, we approached this animal with extreme
14
caution, and over the years, he showed us how very
15
trainable, how very approachable, how very passive or
16
very responsive he was.
17
I personally conditioned Tilikum to perform a
18
gastric intubation.
19
being very close to him.
20
throughout the training, and he never gave us any
21
indication.
22
23
Q.
I was completely comfortable
If you could describe for the Judge, what is
a gastric intubation?
24
25
Our training procedure involved
A.
open.
Sure.
We asked Tilikum to hold his mouth
This is a procedure that was trained with at
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least two trainers plus a spotter trainer.
person was responsible for asking Tilikum to target the
top half of his rostrum on the one hand and the bottom
half of his jaw on the other.
So, one
So, we were asking him to maintain this
position with his mouth like this (demonstrating), one
hand here and one hand here.
8
9
When you're training -- let me just say,

certainly, there was not a disregard for this animal's
10
potential when you're training it.
11
contact with a killer whale, and you are touching him on
12
the top of the body, you can feel any change.
13
animals are -- you can feel it.
14
change their mouth, you can feel them move their head
15
back.
16
When you have close
These
You can feel them
So, this person held that -- asked the animal
17
to maintain that position, keep his mouth open while
18
another person approximated, took very small steps,
19
taking a tube and putting it down his throat.
20
is straight to his stomach.
21
have the gagger results you and I would have.
22
His mouth
So, you're not going to
So, we slowly approximated feeding this tube
23
all the way into Tilikum's mouth until it got to the
24
point where it was set.
25
things.
Then, you can do one of two
You can either keep the tube, keep the pressure
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and pull pack and then you retrieve that sample for the
veterinarian, or you can leave the tube open and hydrate
the animal or pour the solution straight into his
stomach.
behavior for years.
JUDGE WELSCH:
So, we conditioned him, and he performed the
Why would you do the latter?
understand the first concept --
THE WITNESS:
Getting the sample?
JUDGE WELSCH:
I understand that concept.
10
would you do the latter?
11
THE WITNESS:
Why
I'm not a veterinarian, but I
12
have had veterinarians prescriptions, and at the time we
13
were looking at whether or not Tilikum might need more
14
hydration, so we were putting fluid into him, whether he
15
was getting enough water or not.
16
BY MS. GUNNIN:
17
Q.
18
What other close contact have you had with
Tilikum involving husbandry procedures?
19
A.
Tilikum -- this is prior to?
20
Q.
Prior to.
21
A.
Tilikum was trained a litany of husbandry
22
behaviors.
He was trained to allow us to look at his
23
mouth, look in his mouth, ask for his tongue to be
24
presented so we can manipulate his tongue and look at
25
anything that's going on with his tongue.
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We could
99
culture his teeth, and we could do dental work on his
teeth, we cleaned his teeth.
We were able to look very closely at
Tilikum's eyes and collect tear samples from his eyes.
We were able to collect a culture of his blow hole as
well as a sample of his blow.
Moving back, we did full, full body exams on
the animal each and every day.
him and recorded his growth from the time he came to Sea
10
World, and those measurements involved using a measuring
11
tape, the flexible kind, and we took probably 17 or 18
12
different measurements, and all of those measurements
13
involved us being very close with him.
14
measurements as well as pectoral flippers.
15
We took measurements on
We did girth
We x-rayed Tilikum which means close to him
16
in full gear.
17
We could look at his penis and we also trained Tilikum
18
to give us a sample of his semen.
19
We trained Tilikum to present his penis.
We trained Tilikum to allow us to collect an
20
anal culture as well as a fecal sample.
21
perform ultrasound examinations on Tilikum pool side
22
where we asked him to come right to the side of the pool
23
and lay either laterally or dorsally so the veterinarian
24
could use an ultrasound machine on him.
25
JUDGE WELSCH:
We could
These are done by veterinarians?
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1
2
Are the animal trainers involved in those aspects?

THE WITNESS:
Yes, absolutely.
We're involved
in the training of the behavior, and we're also involved
in the collection of the samples, depending on what the
sample is that's being collected.
JUDGE WELSCH:
For the veterinarian.
THE WITNESS:
For the veterinarian.
We're
basically, the veterinarian's assistants.
We train the
behaviors that they ask us to train, and then we train
10
the animals to stay in a position so that they can --
11
I'm certainly not capable of reading an ultrasound, but
12
I can train a killer whale to volunteer body
13
presentation for that ultrasound.
14
BY MS. GUNNIN:
15
Q.
And, do the vets actually ask you to train
16
certain behaviors so that they can perform medical
17
procedures?
18
MR. BLACK:
Your Honor, just for the record, we
19
would object to this as being not relevant to any issue
20
before the Court.
21
behaviors or veterinarian requests have to do with
22
performance in the shows, and so we would like to make
23
that objection.
24
25
We don't know what veterinarian
JUDGE WELSCH:
Ms. Gunnin, if I understand the
Secretary, that's what I asked Mr. Black about.
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The
101
citation goes to the shows that involve the animal
trainers is the way the citation goes.
MS. GUNNIN:
And, what we are trying to show,
Your Honor, is that the close interactions that the
trainers have during the shows are very similar to all
of the close interactions, and that the Secretary takes
the position that you can do all of these certain types
of close interactions, but you can't do these, it would
not make sense.
10
So, we think that it's very important for you to
11
understand all of the close behaviors, and these are
12
trainers that are working with the veterinarian.
13
They're training behavior
14
the interaction with the killer whales at the time the
15
vets are there.
16
whales alone.
17
-- they're there to manage
The vets never go and see the killer
They rely upon the trainers.
So, the contact that the trainers are having is
18
very important, and the testimony that OSHA has
19
presented in deposition here is that they are concerned
20
with all close contact.
21
compliance officer have testified this way.
22
Both the area director and the
So, although the citation may be written this way,
23
as Your Honor knows, the Secretary is not limited by
24
their citation.
25
case.
So, we do think it's important to the
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JUDGE WELSCH:
Mr. Black, you were trying to say
something.
evidence because I haven't decided yet as to how
limiting the citation is.
I'm going to allow Sea World to put on this
I understand the Secretary's position that you are
limited strictly to the animal trainers in the
performances, I guess is the way you're interpreting the
citation.
9
10
11
MR. BLACK:
It's not interpreting the citation.
That's what the citation says.

JUDGE WELSCH:
Well, the citation, I don't
12
believe, says anything about performances because you
13
said something this morning about animal trainers or
14
water work and dry work performances.
15
MR. BLACK:
16
JUDGE WELSCH:
Yes.
I guess when I was reading it, I
17
didn't know whales you meant in terms of performances
18
like show performance versus performance activity.
19
MR. BLACK:
Sure.
And while Ms. Gunnin is
20
right that there is much testimony about hazards and
21
what might be done outside of the performance context,
22
we haven't cited that.
23
It may present the same hazard, and certainly it's
24
an argument that Sea World can make that somehow it is
25
limited to show performances and not something we like
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because the hazard is everywhere, but we're only talking
about the hazard during show performances.
We recognize that there is a hazard at other times
in our opinion, but we haven't asked them to abate in
our citation, haven't said you need to stop ever getting
close to a whale to perform a husbandry procedure.
7
8
9
So, not we're not talking about what Sea World

does.
JUDGE WELSCH:
I guess what concerns me, Mr.
10
Black, is does that mean next year you're going to come
11
back and cite Sea World for the nonperformance
12
activities by the animal trainers?
13
come back next year, or are you going to wait until my
14
decision, however it comes out, and then you're going to
15
come back and issue a citation for the other aspects?
16
MR. BLACK:
Is OSHA intending to
Well, if and when OSHA is -- you
17
know, this case involves the performances.
18
World is able to institute proposed abatement measures
19
as to things that are not show performances, Sea World
20
perhaps is in the best position to make a first effort
21
at abating what are recognized hazards there.
22
Whether Sea
We're not prepared and haven't cited that because
23
you can hear that there's perhaps some level of
24
complexity as to those other behaviors, husbandry and
25
medical procedures, and so we didn't cite something that
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1
2
we don't have the expertise to -MS. GUNNIN:
Judge, if I could just make one
last offer.
the Secretary include protected contact or physical
barriers.
performances.
suggested isn't limiting.
JUDGE WELSCH:
9
10
The feasible abatement methods offered by
It does not limit it to shows or

The feasible abatement method that is
At this juncture, Ms. Gunnin,
I'm going to allow Sea World to go ahead and proceed.

I understand what Mr. Black is saying.
The
11
citation really just talks about -- and the Secretary is
12
now representing, it only talks about animal trainers
13
with regard to the performances, and I guess my decision
14
is going have to -- I don't know, I'll have to think
15
about this in terms of whether or not I can make my
16
decision broader, but I'm going to allow it because it
17
may be relevant to the information you obtained; the
18
other activities may be relevant to even the performance
19
activities.
20
MS. GUNNIN:
21
JUDGE WELSCH:
Certainly, Judge.
So, I'm going to allow it.
But,
22
I haven't in my own mind -- since this is only the first
23
day, right now, I'm going to allow you to go ahead and
24
proceed to ask your questions.
25
I wanted to have that discussion, though, on the
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record so I understood where the Secretary is coming
from and I wanted to understand where the Company is
coming from.
4
5
6
7
MR. BLACK:
Certainly, and could we have a
standing objection to this whole area?

JUDGE WELSCH:
You don't have to stand.
It's
noted.
MR. BLACK:
JUDGE WELSCH:
So that I don't have to object -It's noted in the record, the
10
Secretary's position is that the citations only deal
11
with the animal trainers during the dry work and water
12
work performances.
13
you're objecting to evidence regarding things outside
14
the shows, either the veterinarians or the animal
15
trainers and other activities outside of the show
16
appearance.
17
MR. BLACK:
18
JUDGE WELSCH:
19
That means during the shows.

The objections are noted for the
record.
20
BY MS. GUNNIN:
21
Q.
Ms. Clark, I think it would be helpful if you
22
could explain to the Judge what is the difference
23
between doing show behaviors and doing husbandry
24
behaviors?
25
And,
A.
Actually, I think I have an opportunity right
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now to help you understand reinforcement history, help
you understand husbandry, and help you understand the
shows, because it just came to me sitting here with
Tilikum.
While I would not perform a gastric tube
behavior to my audience, I would several times in the
show, if I was working on getting the gastric tubes
trained, I would take many opportunities during the show
to ask, "will you do this for me.
10
11
Great.
Good job.
Job well done."

Now, I'm going to reinforce you for this
12
during the show in front of an audience.
13
contributes to your reinforcement history with that
14
behavior so that I can then perform it.
15
JUDGE WELSCH:
That
Remember, we're on the record so
16
when you say, "do this," what you're showing is "open
17
your mouth."
18
THE WITNESS:
Yes.
If I'm training on gastric
19
procedure, while I wouldn't choose to show the gastric
20
procedure, I would ask the animal to open its mouth.
21
might ask it once, I might ask it 15 times.
22
I am contributing to the reinforcement history with that
23
animal around that particular behavior.
Each time,
24
So that when the next time I'm working the gastric
25
tube in the back, the animal now has a lengthy, positive
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reinforcement history with holding the mouth open.
that would contribute to the success of the procedures
in the back.
And,
So, I use every single opportunity when I'm
working with the whale, be it a show or be it a body
exam, when I'm working on a particular behavior, I will
increase my reinforcement history.
8
9
JUDGE WELSCH:
egg.
It's like the chicken and the
As part of the show, you're having them open their
10
mouth for the audience.
11
intubation.
It's also for the gastric
12
So, when you train the behavior, are you training
13
him for the show in terms of opening their mouth or are
14
you training him to become accustomed to the gastric
15
procedure?
16
17
18
THE WITNESS:
Do you want me to explain that to
JUDGE WELSCH:
Well, as I say, to me it's like a
you?
19
chicken and the egg situation.
20
behavior to open their mouth --
21
THE WITNESS:
Which came first?
The
I wouldn't really -- I might ask
22
them to open their mouth on a behavior.
23
opening their mouth behavior is opening my hand, and
24
then I might ask them to swim, and because I think
25
that's something the audience might appreciate because
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that behavior is completely different than the behavior
of me asking them to maintain contact.
This is not a behavior -- if I'm asking them to
maintain contact with me with their mouth open, this
isn't a behavior I would expect the audience to really
appreciate to photograph.
environment to rehearse -- that's a better word for you
to understand -- to rehearse this part of this behavior
and, therefore, get more reinforcement history of money
However, I will use the show
10
in the bank that will contribute to the progress of that
11
behavior.
12
I might send an animal on a leap; we call it a
13
bow.
14
back to me, I might say, "Now, roll over and put your
15
fluke in my lap.
16
this time."
17
The audience is engaged.
When that animal comes
This is how I'm going to reward you
The audience is busy watching another whale do a
18
jump or they might watch me rub the whale.
That rubbing
19
of the whale is contributing to the whale's
20
reinforcement history for a fluke blood draw of the
21
back.
22
JUDGE WELSCH:
Can you spell "fluke"?
23
THE WITNESS:
F-l-u-k-e.
It's the tail end of
24
the whale.
Our veterinarians collect voluntary blood
25
samples from the tail end of the whale.
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the reinforcement history of the behavior a lot during
shows, and I could list pretty much every husbandry
behavior that we do.
it during the shows.
BY MS. GUNNIN:
Q.
I find opportunities to reinforce
Can you draw a bright line between what is
purely a show behavior and what is a husbandry behavior?
A.
Not as a behaviorist, I cannot.

If you're asking me to draw you a line to
10
animal x-ray and an animal in front of an audience,
11
there is an audience I could do that in front of and we
12
have.
13
We do a whole series of shows for educational
14
purposes.
We have an entire group of dentists come, and
15
we educate them on how you care for killer whales' teeth
16
and how we maintain their teeth.
17
husbandry behaviors in show performances.
So, yes, I have used
18
But, if you're asking me as a behaviorist to
19
say are there things that shows do not contribute to, I
20
would have to say I could not draw that.
21
Q.
How about on the day of February 24th?
There
22
was a Dine with Shamu show that was going on.
23
end of that show, is that when the incident occurred in
24
this case?
25
A.
At the
It occurred following the Dine with Shamu
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show.
Q.
Was the show concluded at that point?
A.
Yes, I would define the conclusion of the
show as when the guests are thanked for coming in.
Tilikum was still in the pool, Dawn was doing a fun
relationship building interaction with him following a
good performance in the show.
8
9
So, she progressed from being on the side

close to the dining guests, she progressed and went
10
around to the other side of the pool and was still
11
interacting with Tilikum.
12
Shamu performance for the guests was mostly ended.
The performance of Dine with
13
JUDGE WELSCH:
What did you call it?
14
THE WITNESS:
We call it "Dine with Shamu."
15
JUDGE WELSCH:
D-i-n-e?
16
THE WITNESS:
D-i-n-e.
17
JUDGE WELSCH:
I just wanted to make sure she
18
19
Dine?
Eat.
has it in the record.

THE WITNESS:
The facility is set up so that
20
there were tables around -- well back from the
21
facilities, well back to the killer whales -- there were
22
tables set up where the guests eat next to the pool
23
while learning a little bit more about how we train our
24
killer whales and learning more about what the killer
25
whales can do.
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It didn't have the fanfare of a show performance,
and I'm having a hard time with the definition of show
performances.
the difference.
It was more of a -- it doesn't have the fanfare, it
doesn't have the music soundtrack, it doesn't have as
many whales performing in it.
anything from our breeding program, to do training, to
playing with the trainers.
I want to make sure that you understand

The Dine With was more of a guest show.
We would highlight
And, we could choose the
10
topic that we wanted to talk about.
11
are definitely training opportunities for us to work on
12
new behavior.
13
BY MS. GUNNIN:
14
Q.
So, really, those
And, you described that as a relationship
15
that you would have.
16
of a show, or are those done at other times?
17
A.
Are those always done at the end
Oh, relationships happen all of the time.
18
can choose to partake in a relationship session during
19
the show and have done so on a number of occasions.
20
an animal -- you know, we have a lot of animal trainers
21
to choose from.
22
How do you reward them?
23
individual animal responds to our reinforcement.
24
25
If
Now, how do they reinforce the animals?

We base that on how well each
If an animal performs exceptionally well or

is doing something that they have just learned or better
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than they've ever done before, I have the opportunity to
say, "Okay, I'm going to spend some time with this
animal," and the show doesn't go on.
but the entertainment is now around my establishing more
reinforcement history with the animal.
happen at any time.
Q.
The show goes on,
So, it can
In terms of the show itself, do the trainers
have any ability to not interact with the killer whales
during the show?
10
A.
Oh, absolutely, and that happens.
There are
11
times when we're interacting with the killer whales --
12
to give you an example, they have a social hierarchy,
13
and if they're all out there performing -- first,
14
understand that they perform when they want to perform.
15
You can understand there are six things that they pretty
16
much choose what they're going to perform.
17
And, there are times when they have their
18
social activity going on, and we as trainers will
19
recognize that social activity, and we say, you know
20
what, let's take a step back, talk to the audience, just
21
talk to the audience about what's going on, teach them a
22
little bit about killer whale behavior, and we will at
23
times not continue to interact with the animals, and
24
just talk to the audience about the great privilege at
25
this time because they're witnessing something that
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doesn't happen every time at the show.
And we talk to them about killer whale
behavior, what we're seeing right now, and we're going
to let them be killer whales.
activity, sometimes it will be social altercation, and
we step away.
show.
8
9
10
Sometimes it's breeding
There is certainly no pressure to do a
I mean, we've done it a number of times.

Q.
How about when you're not in the show
environment?
A.
Is there an occasion that you step away?
Yes, we do that all the time as well.
And,
11
really, to be clear, I would not separate the two.
12
can make the same decisions in the show environment that
13
we do in the back.
14
Q.
How about the spotter?
They
Same decision of
15
having a spotter when you're in the back working with
16
the killer whales versus the show?
17
A.
Yes.
18
Q.
Mr. Black asked you about the term,
19
"calculated risk," that was found in the sign-off sheet
20
or the SOP's.
21
What does Sea World do to teach the trainers
22
to handle a calculated risk and what is meant by a
23
calculated risk?
24
25
A.
I think the context of that as given is that
these are large animals, and large animals have the
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potential to be dangerous.
of large animals that have the potential to be
dangerous.
people have at least seen video of what they're capable
of doing.
I have worked around a lot
I think a horse is one of them that most
You have to know how to move around a horse
or you would be putting yourself in danger.
trainers how to move around the killer whales.
teach them how to recognize all kinds of behavior.
10
I teach the
I also
And, you know when you come across a dog, you
11
might not be an expert on dogs, but if you see that dog
12
growl or snarl, you will recognize the behavior.
13
don't know that about killer whales.
14
all these behaviors so we teach the behaviors.
15
the 45 years-plus that we've been watching killer
16
whales, learning about killer whales, becoming an expert
17
on killer whales, we have a lot to teach, and I make
18
sure that that is exhaustive; that we teach every single
19
thing to every trainer before they start interacting
20
with them.
21
I teach them.
People
They don't know

And in
I teach them not only how to
22
move with the killer whales, but how killer whales
23
interact with one another, how the individual killer
24
whales that they might be working with interacts with
25
the other killer whales in their environment, and give
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them to complete history of behavioral and reinforcement
history of the killer whale that they might be
interacting with.
Then, I talk to them about killer whales in
general.
I talk to them about these behaviors that we
have referred to before, precursor behaviors that we
were talking about earlier.
that we recognize before undesirable behavior has
happened and we have witnessed this over the years.
We talk about behavior sets
10
We've witnessed it between two
11
are recognizable events, and I teach all of the trainers
12
about those events.
13
social activity going on, and describe what's going on.
14
They're constantly mentored.
15
16
Q.
killer whales, and they
I will pull them aside when there's
Now, I think Mr. Black also asked you if it
was just simply a hope that the trainers see everything.
17
Is that the expectation that Sea World has
18
after the training that it's providing to the trainers
19
as well as the training of the killer whales; that it's
20
just a hope that they're going to see any kind of
21
precursors or a hope that the interaction is going to go
22
well?
23
MR. BLACK:
Your Honor, I know you have
24
discretion for some latitude but we would object to
25
leading questions.
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JUDGE WELSCH:
Overruled.
Go ahead.
BY MS. GUNNIN:
Q.
JUDGE WELSCH:
Go ahead.
THE WITNESS:
Thank you.
If I'm remembering what you're referring to, I
You can answer.
made it clear that it's an expectation.
hope.
put a lot of training into them before they are ever
10
going to have an interaction with the killer whales.
11
It's not a
We put a lot of training into the individuals, we
My expectation is that they will be able to
12
recognize any kind of precursor to an unwanted killer
13
whale behavior.
14
BY MS. GUNNIN:
15
Q.
Going back to Tilikum, do you have any
16
estimation of the number of close interactions that
17
trainers would have had with him prior to February 24th?
18
A.
Estimation?
I would ask somebody else to use
19
a calculator, but I would say he probably had ten close
20
interactions per day from the day he arrived to the --
21
22
Q.
So close to an 18-year time period, ten close
interactions per day?
23
A.
Yes.
24
Q.
That would be quite a lot of interactions?
25
JUDGE WELSCH:
And, your definition of close
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interaction is within five feet?
THE WITNESS:
Yes, sir, and I would say that --
JUDGE WELSCH:
That's what you described the
4
5
last time as close interactions?

THE WITNESS:
Yes.
I would say that I would
include in at least eight of those interactions being
closer than five feet, eight out of the ten per day.
8
9
MR. BLACK:
And, Your Honor we would object
as to the relevance of this testimony about the number
10
of interactions versus --
11
JUDGE WELSCH:
I understand.
Overruled, because
12
I know where the Company's argument is coming from, and
13
I haven't made any decision on that.
14
to explore that.
15
MR. BLACK:
Thank you.
16
JUDGE WELSCH:
But I understand your objection.
17
BY MS. GUNNIN:
18
Q.
So, I'll allow her
You were also asked with regard to Tilikum,
19
how did you train people who could possibly wind up in
20
the water with him.
21
A.
What training was given?
We teach the animal trainers -- they have to
22
demonstrate that they are capable of making decisions,
23
making correct, appropriate behavioral decisions before
24
they would ever interact.
25
We teach the trainers if they ever found
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themselves in a situation that they would rather not be
in, that they are to remain calm, cool and collected.
We teach them a lot about what we call differential
reinforcement of other behavior and differential
reinforcement of incompatible behavior.
about keeping an animal, given all of their history with
that animal in the front of their mind as they're
interacting with them if they're in that situation.
We talk to them
So, we taught people how to respond in the
10
event they were in a situation that they didn't want to
11
be in with calm, cool decisions in a relaxed posture.
12
Q.
At the same time that's going on, is there
13
anything else occurring as a trainer is in a difficult
14
situation with a killer whale?
15
A.
Sure.
There's a lot occurring.
16
foremost, the spotter is pool side.
17
about in their --
18
Q.
Not with the trainer.
First and
Are you talking
With anything that the
19
spotter would be doing or any other trainers that are
20
witnessing an interaction that's not going the way
21
anyone expected it to.
22
procedures?
23
24
25
A.
Are there other protocols or
Yes, there are a lot of protocols.

I tried to say this earlier that the whales
are trained and the trainers are trained, but we're
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focusing on the training for the trainers.
But, the whales are trained on a series of
behaviors that are a lengthy enforcement history.
is a great place again for me to talk to about
rehearsing the correct response to a signal during a
show.
This
We have a signal that means "come to me."
It's either a slap on the surface of the water, we also
have a tone beneath the surface of the water, and we
10
rehearse that constantly with the whales.
It's probably
11
the most highly reinforced behavior that we have.
12
The shows are an opportunity for us to
13
rehearse that behavior.
If an animal trainer finds
14
himself in a situation that is not going so well,
15
there's a lot of communication between the animal
16
trainer and the spotter trainer.
17
spotter trainer for a call back slap on the surface of
18
the water.
19
conditioned and there's such a lengthy reinforcement
20
history with that slap on the water, meaning "come
21
here," it's rehearsed and rehearsed and rehearsed in
22
situations that are not tenuous at all to situations
23
that we plan for more things going on in the environment
24
as well as situations that we're talking about the
25
animal trainer might find themselves in.
They might ask the
The fact that the animal had been
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So, the constant rehearsal of this behavior,
"come away from the trainer and come to me," contributes
to a positive outcome.
4
5
Q.
How about any type of emergency procedures
that you may have?
A.
If our first -- if our training doesn't bring
the whale over to us, we will enact a series of
behaviors that are rehearsed also.
behaviors that are rehearsed.
These are human
We have rehearsed
10
emergency protocol that every one of our trainers does
11
on a monthly basis.
12
They need to know how to use all the
13
emergency equipment that we have.
14
everybody is -- it's kind of like a well-oiled machine
15
when it comes to these drills.
16
drills, not expecting something to happen, but we
17
practice these drills so that in the event something
18
does happen, we will be well prepared for it.
19
Q.
We make sure that
We practice these
You were also asked about whether it was the
20
position of Sea World that the trainers' safety is in
21
their own hands and that Sea World doesn't do anything
22
to help that.
23
24
25
Can you explain to the Judge your thoughts on

that?
A.
None of our animal trainers is ever working
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with killer whales alone, and I think their safety is in
everybody's hands.
safety is in my hands, and I equip the management team
with whales they need to train the trainers to be safe,
and I equip the trainers themselves, so they're not -- I
understand the language on that document, I understand
why it was phrased the way it was phrased.
certainly, they are not on their own.
spotter trainer with them, they have a management team
10
that would never have put them in front of that killer
11
whale if they were not qualified.
12
13
Q.
They can certainly come to me, their
But,
They have a
And, over the years, have the protocols
changed in any way to enhance safety?
14
A.
Yes, they have.
15
Q.
And, could you just provide a description to
16
the Judge of what you can recall as some of those
17
changes?
18
A.
Absolutely.
Just in my 25 years, there's
19
been a lot of progress with our craft.
20
about taking care of the whales, a lot of it is about
21
training the whales on behaviors, and a lot of it is
22
around safety.
23
A lot of it is
We have learned so much in 45 years.
In my
24
25 years, we have learned so much that this is getting
25
safer and safer.
It's been safe.
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for a long time, and every time we evaluate, we look
back, and if we make a change that is around safety,
it's for a really good reason.
specifics.
5
6
7
Q.
I can give you
If you can recall some specifics, that would
be helpful.
A.
Sure.
I will go backwards.
There was new
protocol around Tilikum after a homeless man wound up in
his pool.
10
We don't know --
MR. BLACK:
Objection, Your Honor.
If we're
11
going to revert to Ms. Brancheau by name, calling
12
somebody a homeless man for whatever reasons would imply
13
that that descriptor is somewhat relevant.
14
15
MS. GUNNIN:
It is a different incident, Your
Honor.
16
JUDGE WELSCH:
It was a different incident.
17
MR. BLACK:
It is but let's be
18
19
20
21
22
23
respectful.
MS. GUNNIN:
This was a prior incident, Your
Honor.
JUDGE WELSCH:
I don't think I understood your
objection.
MR. BLACK:
The objection is just referring
24
to somebody as a "homeless" person is not relevant as to
25
why somebody was involved.
It's not very sensitive.
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JUDGE WELSCH:
Restate your question.
THE WITNESS:
Honestly, not to characterize, a
gentleman ended up in Tilikum's pool over night.
He was
fed in the morning, and that shocked and shook us.
did not know the events leading up to his death, we did
not know anything other than Tilikum had him.
We
JUDGE WELSCH:
When was this?
THE WITNESS:
1998 or '9.
As a result, we did that the same thing that we do
10
any time there is something that is -- it was a
11
traumatic event and we pulled way back on our protocols
12
for Tilikum.
13
with him.
14
Only the most experienced people worked
I know other things were started at the stadium as
15
a result of that.
16
than prior to that incident.
17
stadium, by just being able to get over a two and a half
18
foot railing, and we made changes to that.
19
security guard at the facility, security officer at the
20
facility 24 hours a day.
21
The stadium became much more secure

You could enter the
We staffed a
Other protocols changed around Tilikum in response
22
to that event.
We no longer did his gastric tube.
23
instead because that was the one behavior we felt we
24
were vulnerable, and we didn't know the circumstances
25
around this gentleman's death, so we found that putting
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our hands into his mouth might be putting us into a
vulnerable position.
behavior and hydrated him by using gelatin after that.
So we dropped the gastric tube
So security changed, and our protocols around
Tilikum changed.
arrival are still in effect today, but we made changes
after that event.
February 24, 2010.
9
10
Some the protocols upon Tilikum's
We also made more changes after
BY MS. GUNNIN:
Q.
You have talked a little bit about water work
11
and dry work, and it's in the citation itself, but I
12
don't think anyone has given a definition of that.
13
don't think you were asked to do so.
14
15
16
If you could explain to the Judge, what does

the term, "water work" mean?
A.
I would term "water work" as any interaction
17
with the killer whale over the trainer's knees as being
18
in the water with the killer whale.
19
how we've defined it over the years.
20
21
22
JUDGE WELSCH:
So, the water is above the
trainer's knees?
THE WITNESS:
23
knees.
24
killer whale.
25
That's pretty much
The water is above the trainer's
The interaction is a very close contact with the
Something that's changed over the years is the
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approach to working with killer whales in the water.
just 25 years, the safety, the protocols that we
train -- what we train our animals to do and what
they're capable of learning and understanding and
getting a reinforcement history of has expanded greatly.
In
When we were doing water work, water interactions
with the animals, performing with them in shows, doing
sessions, about 25 years ago, 26 years, 28 years ago, we
started saying, "You know, these guys are big and if we
10
fall off, it would be best if they keep moving."
11
train them, we condition them to continue the behavior
12
that they were doing.
13
So, we
If the trainer lost contact with them and they
14
didn't hear and they didn't receive, "yes, you have done
15
the right thing.
16
training, continue to perform the behavior you're
17
performing."
18
safe, 28 years ago.
19
If you're separated from your
That is a way we have kept the trainers
Today that has evolved.
Up to February 24th, it
20
has evolved to a very sophisticated no matter what
21
behavior you're doing, perform this behavior which is
22
come to the surface, and swim calmly to the perimeter of
23
the pool.
24
25
So, it has progressed and continues to progress as

the craft has become safer and safer.
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environment has become safer over the years, learning
more about training them and interacting with them.
BY MS. GUNNIN:
Q.
How about water de-sense?
A.
That's actually what I was just referring to.
What is that term?
Water desensitization covers more than just a behavior.
I was just explaining the behavior we ask them to do
should they become separated from their trainer, but it
starts much, much earlier than that.
10
When we're first introducing ourselves to the
11
animals in the water, we first train them to ignore us,
12
to completely ignore us.
13
going on in the pool, concentrate on the trainer, the
14
trainer has control of you, or on the behavior you have
15
been asked to do.
16
perimeter swim.
17
No matter how much activity is
And, one of those behaviors is a
So, to take you through the steps, we would
18
start with a whale swimming past us and just ignoring
19
us.
20
pool.
21
into ankle-deep water, and we would get a lot of
22
reinforcement history into them, not interacting with
23
us, swimming past us.
24
25
We're not in water at all, or on the surface of the

We're on a flat surface, and then we might go
And, as we progress, we're in the water with

them, and then we're trying to distract them, and
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they're still maintaining that perimeter.
going out to the middle of the pool and maintaining that
perimeter.
There's so much reinforcement history with that, and
it's reinforced over and over again in the shows that
when called upon as a behavior, we go into a behavior
very expectedly.
8
9
Q.
Then, we're
So, they're desensitized and we continue.
And, how long could it take to walk through
water de-sense with a killer whale?
10
A.
11
conditioning.
12
won't move on to one step until we're absolutely sure
13
that the killer whale has mastered the proper step.
14
Each individual animal will respond to

What is very important to note is that we
So, if we consider this like the alphabet,
15
with Z being our goal, they're completely desensitized,
16
and we can count on them to perform that step when they
17
need it.
18
Some whales will get from A to J in six
19
months, some whales will get from A to Z in six months,
20
and we're capable of recognizing.
21
recognize how fast it moves, what an appropriate place
22
is and when to go backwards.
23
series of behaviors that we train before we ever train
24
them to come to us in the water.
25
We're experts, we can
And, there's a whole
And, then, there's an entire series of
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behaviors that we train with them in the water most
importantly being rewarded or reinforced for moving away
from us and for allowing us out.
4
5
6
Q.
So, is there a difference between water work
and water de-sense?

A.
Yes.
However, there's water desensitization
incorporated in water work and there's water work
incorporated in desensitization.
Q.
How about dry work?
10
citation as well.
11
what does that mean?
12
A.
That's referenced in the
If you could explain to the Judge
It's called dry interactions or dry work.
13
Any interaction between the killer whale and the trainer
14
that happens in the water less than knee deep.
15
16
Q.
So, it doesn't literally mean dry in the
sense that many of us would think of as dry?
17
A.
That's our language, right.
18
Q.
And, you've talked a little bit about the
19
training of the killer whales.
What other kinds of
20
methodologies are you using in the training of the
21
killer whales?
22
A.
23
conditioning.
24
whales in operant conditioning.
25
based on consequence.
All their training is based on operant

We train everything with our killer
And, it's training
So, basically, an animal -- the
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chances are an animal can increase the frequency of a
behavior prior to or decrease the frequency of behavior
prior, depending on the consequences of that behavior.
When you're driving and you are driving at an
excessive speed and you get a speeding ticket as a
consequence of driving at an excessive speed, it's going
to decrease the frequency of the behavior.
get a ticket, you might increase the frequency of the
behavior.
10
11
If you don't
So, operant conditioning is all about the
consequences.
So, at Sea World, we use positive
12
reinforcement to modify behavior.
13
are either they perform a behavior that we would like to
14
see happen again or increase the frequency of and they
15
are reinforced or rewarded for that behavior, or they
16
perform a behavior we would rather not see happen again,
17
and it might be an approximation toward the goal.
18
does not have to be unwanted behavior, but they receive
19
a lack of reinforcement.
20
nothing, and then we move on.
21
So, the consequences
It
The consequence is we expect
So, the operant conditioning is around
22
consequence, and at Sea World the consequence is around
23
positive reinforcement or the lack of it.
24
25
We train using a series of steps.

talked to you a little bit about training.
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We call the
130
steps approximations.
training the perimeter swim, the first step of that
behavior is asking the animal to go from Point A to
Point B, and then we will ask them to go past the
trainer, and then we'll ask them to go past the trainer
while something else is happening in the environment.
So, when I was talking about
So, these are all individual steps of
behavior, and each individual step is an opportunity to
reward or reinforce the animal.
10
BY MS. GUNNIN:
11
Q.
12
And, while you're training these behaviors,
are you having close contact with the killer whales?
13
A.
Oh, yes.
It's imperative.
It's very close.
14
Q.
Why do you need to have close contact?
15
A.
It's the right thing to do.
I know I'm not
16
allowed to say that.
17
how we've learned to take care of killer whales.
18
how we have learned to display them.
19
very early on, interacting with killer whales, they
20
respond very well to close contact.
21
about --
22
Q.
23
24
25
It's what we've been doing, it's

It's
They learn very,
I can talk to you
For instance, if you're beginning to teach a
behavior to a killer whale, how would you do that?

A.
We use our hands.
We use our hands to
manipulate the killer whales, we use our hands to read
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them, to understand what's going on behaviorally, and
we're in very close contact with them.
that we should be fully immersed with them to take care
of them.
Q.
I would argue
Why would you argue that you need to be fully
immersed with them?
By that, you mean you need to be in
the water with the killer whales?
A.
Yes.
Q.
And why would you say that?
10
A.
Not only because there are a lot of husbandry
11
behaviors that we need to be close in for, but also I
12
can tell a story.
13
Mr. Black talked about is Sea World still in
14
business and we are.
15
in our collection at Sea World of Florida that we had on
16
February 24th, and I will tell you as an animal trainer
17
who has 25 years of close contact with killer whales,
18
that I think we might not have lost certainly Kalina if
19
we were able to be as close with her today as we were on
20
February 24th.
21
We have two adult females who are
Kalina was an adult whale who passed very
22
quickly from an illness, and she had a history, a
23
lengthy history of trainers who had been in the water
24
with Kalina since she was born.
25
killer whale that was born at Sea World.
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She was the first
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Trainers who interacted with her on a daily
basis knew her, knew her idiosyncrasies.
how to explain it to you.
do you have a dog?
killer whales.
before, showed us.
perform behaviors a little bit differently in the water
with us.
I don't know
It's a lot like you know --
You know your dog, and we know our
And, Kalina when she had been ill

We could sense it because she would
We touch them, we can feel them.
When you're
10
in the water with killer whales, you touch them and you
11
can feel them, but when you're performing with them,
12
they're doing these behaviors that they have been doing
13
with you for more than 20 years, you are so in tune with
14
everything behaviorally, and a lot of what is going on
15
physiologically with an animal.
16
And Kalina had historically slowed down on a
17
couple of behaviors in the water, well before a
18
veterinarian ever would have, and we called the
19
veterinarian and said, "Hey, she's a little off," and we
20
were not able to do that, explain it.
21
would have been able to pick that up had we been in the
22
water.
23
I believe we
Kiema was an adult female killer whale who
24
was impregnated.
When our killer whales are
25
impregnated, we do routine ultrasound examinations on
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them.
perform those ultrasounds as we would have been.
had a very large calf, and I think we would have had
some indicators that might have helped us.
We were not able to get as close to Kiema to
Q.
Kiema
Ms. Clark, I just have one more question for
you.
You mentioned something about Loro Parque, and I
just want to clarify for the Judge.
owned by Sea World in any way?
Is that a park
A.
No, it is not.
10
Q.
Are they affiliated to your knowledge with
11
Sea World?
12
A.
13
MS. GUNNIN:
14
No.
That's all I have.
And, Your
Honor, may I asked for a break for Ms. Clark?
15
JUDGE WELSCH:
16
a break.
17
20 minutes 'til.
I was going to ask if you need
Let's take a ten-minute break.
18
19
Was taken off the record)
Be back at
20
JUDGE WELSCH:
21
Ms. Clark, I'll remind you you're still under
22
23
oath.
Let me ask, Ms. Clark, I certainly can tell that
24
you feel very passionate in terms of what you do, but I
25
want to get some understanding.
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as a behaviorist.
coming to Sea World?
World for 25 years.
What was your background before
THE WITNESS:
You said you have been at Sea
I graduated from Ohio State
University in 1987.
JUDGE WELSCH:
In what area?
THE WITNESS:
Animal science.
JUDGE WELSCH:
Animal science?
THE WITNESS:
I worked around large animals,
10
large animals and different things, equine reproduction.
11
I was around horses and around cows.
12
JUDGE WELSCH:
And, after Ohio State?
13
THE WITNESS:
After Ohio State, actually, this
14
was my first job out of college.
15
decision whether to go to veterinarian school or work at
16
Sea World, and I said I would work at Sea World for a
17
couple or years and then go to veterinarian school, and
18
25 years later.
19
and was accepted to a masters of education program, and
20
I got pregnant with my first child.
21
I had to make a
I have since started work on my degree
JUDGE WELSCH:
But, you are applying a lot of
22
animal behavior kinds of concepts.
23
is that pretty much from on-the-job working at Sea World
24
or was there some background?
25
THE WITNESS:
So I wanted to know
I certainly had psychology
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courses in college that approached behavior as a
science.
around my animal science degree.
I had behavioral science courses in college
But, really, 25 years of exposure to the craft and
reading outside materials, attending conferences and
leading work shops myself has contributed to my
expertise.
JUDGE WELSCH:
World, what was your job?
10
11
12
13
14
15
16
17
18
THE WITNESS:
When you first started at Sea

What were you hired in as?
I first started as an apprentice
trainer at Sea World of Ohio in 1987.

JUDGE WELSCH:
And when did you move to Sea
World of Orlando?
THE WITNESS:
I moved to Busch Gardens Tampa in
'90 and Sea World Orlando in '91.

JUDGE WELSCH:
As curator of animal training,
what does that job entail?

THE WITNESS:
What does that mean?
A curator is -- that's Sea World
19
language.
20
say I'm the Director of Animal Training which means I am
21
responsible for all the animal training that happens at
22
Sea World in the animal training department's areas.
23
It would be easier for you to understand if I
I also interact with others along those areas when
24
it comes to behavior.
So, I'm in charge of all the
25
animal training in the park -- I'm responsible for all
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the animal training at the park.
for the development of a team of animal trainers who
take care of those animal.
JUDGE WELSCH:
I'm also responsible
When you say the animal training
in the park, that's the animals in addition to the
killer whales; not just the killer whales?
THE WITNESS:
Right.
JUDGE WELSCH:
You have the sea lions and you
have --
10
THE WITNESS:
Sea lions, dolphins, birds.
11
JUDGE WELSCH:
So, you're responsible for the
12
animal training in those departments also?
13
THE WITNESS:
Yes, sir.
14
JUDGE WELSCH:
And, since you were promoted from
15
an assistant, I assume you have some assistant curators?
16
THE WITNESS:
Yes, I do.
17
JUDGE WELSCH:
How many assistant curators?
18
THE WITNESS:
I have three assistant curators.
19
JUDGE WELSCH:
I'm just trying to make sure I
20
understand the hierarchy at Sea World.
21
supervisor would be who?
22
THE WITNESS:
23
Your immediate
His name is John Kerivan.
He's
the Vice President of Zoological Operations.
24
JUDGE WELSCH:
Is he stationed here in Orlando?
25
THE WITNESS:
Yes, he is.
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1
2
JUDGE WELSCH:
you say you have?
3
4
THE WITNESS:
I have three assistant curators
reporting to me.
5
6
How many assistant curators did
JUDGE WELSCH:
And, below the assistant
curators, is that the animal trainers themselves?
THE WITNESS:
There is a layer of supervisors.
JUDGE WELSCH:
You were a supervisor at one
time.
What are the duties of a supervisor?
10
THE WITNESS:
The supervisor --
11
JUDGE WELSCH:
When I'm asking these questions,
12
I'm really talking -- I don't know if any changes have
13
been made, but prior to February 2010, that's what I'm
14
looking at, the hierarchy; what changes you've done
15
since then.
16
any changes, but just confine yourself, when I ask the
17
question to go back prior to February; how it existed on
18
February 24th of 2010.
19
I may ask you later on if there were any
THE WITNESS:
The supervisors in each area,
20
each of the four areas I was talking about before has
21
supervisors assigned to them and continue to.
22
Those supervisors are responsible for
23
communication up and development down.
24
up to me, and they develop the trainers.
25
the day of the animals in the facility that they're
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138
working with.
deciding what kind of interactions each animal is going
to have each day, and what interactions will contribute
most to the animal's development and to the people's
development in that area.
JUDGE WELSCH:
They're responsible for planning the day,
So there's a supervisor for the
killer whales?
THE WITNESS:
Yes, there is.
JUDGE WELSCH:
And, under supervisors, that's
10
where the animal trainers fit in?
11
THE WITNESS:
Yes.
12
JUDGE WELSCH:
How many animal trainers do you
13
have for the killer whales?
14
THE WITNESS:
25.
15
JUDGE WELSCH:
Back in February of 2010?
16
THE WITNESS:
I believe there were 28.
17
JUDGE WELSCH:
You said something about 37 or
18
19
20
something.
THE WITNESS:
I think there were 28 in February
of 2010.
21
JUDGE WELSCH:
22
participate in the shows?
23
THE WITNESS:
Do all the animal trainers
All the animal trainers do not
24
participate in the shows, interacting with killer
25
whales.
All the trainers will participate in the show,
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but they don't all interact with killer whales.
If you're talking about the shows as far as the
production, there are trainers that are not yet capable,
they are not yet equipped well enough to make decisions
with the killer whales that are still in support roles
that are still being mentored.
they will provide show support. They will perform lines
in the show, they will open and close the pool door of
the show, they will greet guests and take pictures, you
They're learning that,
10
know, as a trainer in a wet suit, but they are not
11
performing interactions with the killer whales in the
12
show.
13
JUDGE WELSCH:
The animal trainers who actually
14
perform interactions with the killer whales during the
15
shows, how many animal trainers would you have for any
16
one show?
17
THE WITNESS:
The ones that are interacting
18
with the killer whales?
19
JUDGE WELSCH:
Yes.
20
THE WITNESS:
Between nine and ten.
21
JUDGE WELSCH:
Nine or ten for each show?
22
And, within that group, you have a certain number
23
that are designated as spotters?
24
this correctly?
25
THE WITNESS:
Am I understanding
Yes.
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JUDGE WELSCH:
And, the actual training that's
provided to the animal trainers, does that fall upon
your office as curator, or the supervisors for the
killer whales?
Who actually does the training?
THE WITNESS:
Ultimately, I set up programs for
the trainers, and I oversee the assistant curators who
will supervise the implementation of our extensive
training program.
interactions with any level of training.
So, I, however, do one-on-one

I critique
10
shows, I critique sessions, I critique husbandry
11
interactions, I critique behavioral development.
12
So, it is not out of the ordinary at all for a
13
less experienced senior trainer to receive feedback from
14
Kelly Flaherty Clark about an individual training
15
session or an individual interaction.
16
So I'm involved in their training, I oversee the
17
program, but I'm mostly making sure that it's
18
implemented and stuck to by management.
19
JUDGE WELSCH:
20
When was the last time you had interaction
21
directly with a whale?
Let me ask you this way.
You personally.
22
THE WITNESS:
Tuesday or Wednesday.
23
JUDGE WELSCH:
So how often do you personally
24
25
still have interactions with killer whales?

THE WITNESS:
With the killer whales, in my wet
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suit, it's probably right now bi-monthly.
that for you?
Can I define
JUDGE WELSCH:
Yes.
THE WITNESS:
You're talking about actually
physically being in my wet suit and having interaction,
at the stadium daily overseeing and watching behavior?
JUDGE WELSCH:
I guess what I was getting at is
you're more involved with interaction with the animal
trainers versus interaction with the killer whales?
10
11
12
13
14
THE WITNESS:
At this point in my career, I am,
JUDGE WELSCH:
How many shows a day does Sea
yes.
World run for the killer whale shows?

THE WITNESS:
The killer whale shows for the
15
public can range from one to six or seven in a day, and
16
that depends on the park's attendance or expected
17
attendance.
18
JUDGE WELSCH:
Is there a peak season?
19
THE WITNESS:
Yes, there several peak seasons
20
here in the Orlando Park.
21
where you wouldn't think October would be a big month,
22
but there are a lot of people who travel here in
23
October.
24
25
There several different peaks
So, it varies.
As animal trainers, we input a number of shows

each and every day.
We receive a schedule that's given
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1
2
to us by the operations department.

JUDGE WELSCH:
the animal trainers.
show, or --
That's what I was asking about

Do all 26 participate in each
THE WITNESS:
No.
JUDGE WELSCH:
They're kind of spread out based
on the schedules; you schedule them?
THE WITNESS:
Right.
JUDGE WELSCH:
When you talked about, going back
10
to those words, precursors, precursive behaviors --
11
THE WITNESS:
Yes.
12
JUDGE WELSCH:
-- can you give me some examples
13
-- I think you might have, but I want to make sure I
14
understand it.
15
you mean by precursors that you're looking for that you
16
think are important indications of future behavior, I
17
guess is what you're talking about?
Can you give me some examples of what
18
THE WITNESS:
Right.
19
JUDGE WELSCH:
Can you give me some examples of
20
21
what you mean by precursor?

THE WITNESS:
There was difficulty in what --
22
when I was talking with Mr. Black, there's difficulty
23
with the definition of precursive behavior because I
24
think it's being tied to all -- precursor being the
25
definition for what happens before unwanted behavior.
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1
2
While precursive behavior can be tied to anything.

Precursive behavior is you've got a sniffle in
your nose, then you know the next behavior might be a
sneeze.
So, there's a series of behaviors that we have
learned over our 45 years with killer whales, we have
associated those behaviors with particular behavior
responses that may happen next.
So, we look at them as indicators of something
10
that may happen next because for so many years we've
11
been analyzing their behavior.
12
JUDGE WELSCH:
Okay.
13
THE WITNESS:
Are you looking for specific --
14
JUDGE WELSCH:
Okay, if you're looking for or
15
thinking of aggression --
16
THE WITNESS:
Okay.
17
JUDGE WELSCH:
-- as an example, where the
18
result might be aggression.
Can you give some examples
19
of what kind of precursors that you think may indicate
20
aggression?
21
THE WITNESS:
Okay.
22
JUDGE WELSCH:
And I guess we're talking about
23
-- would this be all killer whales that you have at Sea
24
World, or are you or just talking about Tilikum?
25
THE WITNESS:
I was speaking in general terms.
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JUDGE WELSCH:
Because you made some -- it
sounds like Tilikum might be a little bit different in
terms of his behavioral indications.
THE WITNESS:
Correct.
JUDGE WELSCH:
There's a little bit of
difference from him versus the other killer whales.
may be wrong, but can you give me examples that you're
using for aggression for the killer whales in terms of
precursors?
10
THE WITNESS:
Sure.
Tilikum is not different
11
than other killer whales in recognizable precursors to
12
aggression.
13
14
JUDGE WELSCH:
Let's separate it in two
different groups.
15
THE WITNESS:
Okay.
16
JUDGE WELSCH:
Let's deal with precursors for
17
aggression for your regular whales, and then I'll ask
18
you the precursors for aggression for Tilikum.
19
that make sense?
20
THE WITNESS:
Does
That makes complete sense, but
21
precursors for aggression are the same with all the
22
whales.
23
JUDGE WELSCH:
Okay, so that answers that
24
question.
So, all the precursors that you're looking at
25
applies to Tilikum and the other whales?
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THE WITNESS:
Correct.
JUDGE WELSCH:
What are those precursors?
THE WITNESS:
I would describe it as any time a
killer whale puts their head down, they no longer have
contact with the trainer; no longer have eye contact
with the trainer, putting their head down, vocalizing,
opening their eyes wider, opening their mouth towards
another animal, opening their mouth different than when
you're asking them to open their mouth, turning
10
sideways, pulling back, pulling away from the trainer,
11
moving back away from contact, a tightening in their
12
body, an arched back, slapping different parts of their
13
body on the surface of the water, slapping their tail
14
against the side of the pectoral flipper, changing the
15
pace of an approach, changing the rotation of approach,
16
if they're approaching me dorsally in the water, and
17
then they change that approach to being more lateral,
18
breaking eye contact, I think I said.
19
JUDGE WELSCH:
Okay, those to you would be
20
precursors to aggression?
21
THE WITNESS:
Yes.
22
JUDGE WELSCH:
So, as an animal trainer, what
23
would the animal trainer do if he saw, let's say, him
24
breaking eye contact; he or she?
25
whales break eye contact, what would be your response?
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THE WITNESS:
My first response is to remain
calm, cool and collected, assess every single thing
that's going on in the environment and come up with a
behavior solution to the situation I'm in, whether that
be my own behavior, stepping back and try or asking the
animal to perform another behavior while remaining calm,
cool and collected while I'm in the water.
JUDGE WELSCH:
I guess I'm assuming that there's
no designated response to one of these precursors.
10
still have to make other judgements with an animal
11
trainer.
12
13
14
You
You still have to make other judgements --
THE WITNESS:
We still have to make behavior
judgements.
JUDGE WELSCH:
As an animal trainer, you have to
15
make other judgements as to what you want to do.
You
16
wouldn't necessarily leave the pool area just because
17
they broke eye contact.
18
THE WITNESS:
No.
19
JUDGE WELSCH:
You also indicated -- and I think
You're correct.
20
when you gave the training for the animal trainers you
21
gave a hypothetical.
22
kind of hypothetical you would be giving?
23
THE WITNESS:
Can you give me an example of what
If I've just watched you do an
24
assessment that went well, you're learning a new
25
behavior and the session has gone well.
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2
3
4
JUDGE WELSCH:
You're talking about me as a
whale?
THE WITNESS:
I'm talking about you as a
trainer.
JUDGE WELSCH:
I just wanted to make sure.
THE WITNESS:
I wouldn't call you a whale.
In animal training, it's just interaction and it
has gone well, and it's wrapped up and I'm talking to
you about it, and I say, "Well, Judge," let's just say
10
that instead of going perfectly, let's say
11
hypothetically, let's set up an environment.
12
working in this pool with Katina who has recently calved
13
so she has another animal with her, she has her
14
offspring with her, and there's another female over
15
there who is in the environment but not in the pool, and
16
she is at the pool door.
You were
17
And, you have been doing this interaction with
18
Katina, and it seems as though when Katina is coming
19
back, she's very aware, she's showing a behavioral
20
indication, she wants to move around and make sure her
21
calf is not wandering over near the pool door, and then
22
the session progresses, and she actually went to the
23
pool door herself.
24
25
I would say to you, "How would you have handled

that second time?
On her way back after going to the
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1
2
pool door, what would the decision be?"

And then, I would expect you to give me some
behavioral decisions you would have made.
would have done the first time, how you would have
responded, and what would you have done the second time.
6
7
8
9
10
11
JUDGE WELSCH:
What you
Is there a right answer or are
there various answers that can be right?

THE WITNESS:
can be right.
There are a lot of answers that
I'm looking for an appropriate decision
you would have made regarding your safety.

So, we have conversations, we create these
12
hypothetical scenarios, and we expect -- that's part of
13
your training is being able to articulate, being able to
14
tell me exactly what you would do in each and every
15
situation because I'm going to watch you, and you're
16
going to be exposed to some of these situations, and I
17
want to know how you will react to them and to make sure
18
that you're prepared to handle them whether they be
19
something as minor as whether or not she's going to take
20
a bigger loop to something that's more difficult to
21
react to.
22
JUDGE WELSCH:
I'm just speculating where Mr.
23
Black is going to ask you a question or where OSHA is
24
coming from.
25
You certainly, it appears to me, have studied this
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very thoroughly based upon your years of experience and
your background, but some other animal trainer, not that
you're animal trainer, but an animal trainer that's been
there four years, isn't that -- I guess what I'm trying
to say is, isn't that a lot of calculations that
somebody that maybe -- I don't know if Sea World hires
any of these kinds of people but people who just want a
job.
animal behavior and the precursors and the psychology
10
11
They don't do it as a passion or study about
that goes into it.

I didn't realize this case was going to be so much
12
into psychology and behaviors.
13
as much and somebody that's been there five years,
14
qualified animal trainer, for all practical purposes,
15
it's a job, a good job, probably pays pretty well but
16
it's still just a job.
17
THE WITNESS:
But they don't do that
They don't often end up remaining
18
animal trainers.
19
have in behaviors and safety about doing it right, you
20
don't end up -- my management team is not going to give
21
you an opportunity to interact with killer whales.
22
23
24
25
If you don't have the passion that I
And, my management team is trained to recognize

whether a trainer is capable or they are not.
And, we do have animals with different
reinforcement history, we have animals with different --
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that person will never be within ten feet of Tilikum,
and that person that you're describing to me, if they
lasted five years, has to be passionate about something.
I can talk to you about what an animal trainer's
life is like.
passionate about our craft.
working 24 hours a day, seven days week, and the trainer
you just described to me really doesn't exist at Shamu
Stadium.
10
It's not a lucrative one.
JUDGE WELSCH:
We're
We understand we have to be
Let me ask you this question. In
11
terms of the trainers, are trainers divided up or
12
separated by which killer whale they work with?
13
THE WITNESS:
They are.
Each killer whale has
14
a team of trainers, and the more experienced, more
15
capable trainers work more whales, and they're divided
16
up onto two teams.
17
title and their experience.
The killer whales are divided up by
18
We have the supervisors, we have a Senior Trainer
19
1, which is a very accomplished senior trainer that has
20
reached the next level of being able to teach a little
21
bit.
22
and associate trainer, which in Orlando does not
23
interact with the killer whale.
24
25
And, we have senior trainers and trainer level,
So, they are divided up into teams.
And, when
you're less experienced, you're really only required to
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know the reinforcement history of a few whales; one,
maybe two.
you're capable, you work more whales.
like any other craft.
you will take more --
As your experience grows and you have proven

You know, it's
As you gain more experience, then
JUDGE WELSCH:
So, if I'm an animal trainer one.
THE WITNESS:
Senior Trainer 1.
JUDGE WELSCH:
Then, I might be assigned to two
9
10
or three whales?
THE WITNESS:
A Senior Trainer 1 currently is
11
capable of interacting with any of the whales and will
12
likely be on five or six, up to seven whales.
13
JUDGE WELSCH:
So the animal trainers can be
14
involved with more than one whale, and the animal
15
trainers don't just stay with one or two whales?
16
can be switched around to other whales.
17
though, is different.
18
deals with Tilikum?
They
Tilikum,
You have a set group that only
19
THE WITNESS:
Yes, Senior Trainer 1.
20
JUDGE WELSCH:
The team is.
21
THE WITNESS:
Correct.
22
JUDGE WELSCH:
But, they have other whales that
23
The team is small.
they deal with?
24
THE WITNESS:
Yes.
25
JUDGE WELSCH:
But, other animal trainers can't
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deal with Tilikum except for that group?
THE WITNESS:
Yes.
JUDGE WELSCH:
That's the way it works?
THE WITNESS:
Yes.
JUDGE WELSCH:
Did I understand you to say in
response to Counsel's question, that in terms of the
accident on February 24th involving Ms. Brancheau, that
you have not determined any precursors to that behavior?
THE WITNESS:
Tilikum did not exhibit any
10
precursors.
11
I arrived seven minutes into the rescue.
12
telling you is not as an eye witness, but as somebody
13
who has reviewed the incident, that Tilikum did not show
14
any precursors to aggression during Dawn's interactions
15
with him.
16
17
18
I'm telling you this not as an eye witness.

What I'm
What happened was her pony tail, which was long,

floated into the water and it was accessible to him.
JUDGE WELSCH:
I don't want to go into the
19
accident at this stage.
I just want to ask in terms of
20
your analysis of what happened from the video and
21
whoever you talked to, his behavior gave you no
22
indication of any aggression or aggressive behavior?
23
THE WITNESS:
No.
24
JUDGE WELSCH:
And, at the time back on
25
February 24, 2010, did I understand that the only
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activity going on with Tilikum was what you have defined
as the dry work?
THE WITNESS:
Yes.
JUDGE WELSCH:
No water work was being performed
with Tilikum?
THE WITNESS:
We were doing limited exposure
water work with Tilikum.
you.
somebody in the water.
And, let me describe that for
We wanted rehearsal of Tilikum moving away from

We wanted a reinforcement
10
history attached with leaving a person in the water
11
because we understood the reinforcement history to be
12
that he had had in his life two interactions where there
13
was a person in the water with him.
14
those interactions turned out favorably.
15
Neither one of
So, being responsible and safety conscious, we
16
wanted to establish a reinforcement history with leaving
17
a person.
18
is in a restricted area.
19
So, we asked Tilikum to come into a pool that
We raised the floor of that pool.
We had the
20
capability of raising the floor up to where he was
21
incapable of swimming but capable of moving, and we had
22
trainers point him away, we had trainers calling him
23
away, and his success with those interactions was --
24
25
JUDGE WELSCH:
show context.
Those interactions weren't in a
That was behind -- not within the show?
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THE WITNESS:
Not within the show.
JUDGE WELSCH:
Thank you.
the questions I have.
Mr. Black?
MR. BLACK:
I think that's all
Thank you.
---o0o---
REDIRECT EXAMINATION
BY MR. BLACK:
Q.
I just wanted to cover some of the points
10
that you testified about when Ms. Gunnin examined you.
11
Some of the them are clarifying questions.
12
I guess I'll start with Ms. Gunnin asked you
13
about dry work, and I think if I heard correctly, you
14
said that's any interaction happening in water that's
15
less than knee deep?
16
A.
Yes.
17
Q.
But, just to clarify a little further, that's
18
the most extreme water or the most water somebody would
19
be in in a dry work interaction, right?
20
normally dry work would be working from the pool ledge
21
or the stage or some place where there's not anything
22
other than a soaking -- there's not anything other than
23
water that's splashed up there, if you will?
24
25
A.
That is,
I would classify dry work as pretty much
anything up to the knees, and there are several areas in
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our environment that we can walk in up to the knee level
and still I would consider it dry interaction.
3
4
JUDGE WELSCH:
Is that part of the show, those
areas you're talking about?
THE WITNESS:
Those areas are in the show.
They're in the back pools.
it clear that I'm talking about the depth of the water,
not the person sitting, standing or kneeling in that
water.
10
BY MR. BLACK:
11
Q.
And, I guess I should make
And I'm not doing a very good job of
12
clarifying what I hope to clarify.
If somebody is
13
standing on a ledge that is completely dry or standing
14
on the edge of the pool and it's completely dry, and
15
that sometimes happens during a show; is that right?
16
A.
Yes.
17
Q.
And interacting with the whale, that would be
18
dry work as well, right?
19
A.
Yes.
20
Q.
You don't have to be in shallow water to have
21
dry work, right?
22
say?
That's not what you were trying to
23
A.
No.
24
Q.
You talked about Sea World killer whales, if
25
you had had close contact, that you might not have lost
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the killer whale Kalina, right?
I know that was a
difficult topic for you, so I'm not bringing this up to
be in any way difficult.
A.
Thank you.
Q.
Close contact, what do you mean by close
contact?
A.
Yes, I do.
Q.
And, so you testified that you think Kalina
9
10
Do you mean in the water?
would not have died if the trainers had been in the

water with her?
11
A.
I said she might not have -- I said she would
12
not have.
13
speculation.
14
15
Q.
I'm not able to say that.
That would be
So, you were speculating that she might not
have died?
16
A.
My speculation is that we might have picked
17
up nuances in her behavior that we had not had in the
18
past.
19
than we did.
20
21
22
We might have known about her illness earlier
Q.
Again, you were just speculating as to how
that might have played out?

A.
I was basing my comments on the history that
23
we had with Kalina where she showed us a change in her
24
behavior.
25
come and do an examination of her, and part of that
We would have requested the veterinarian to
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examination would have been voluntary blood draw, and it
would have indicated very early on before any other
behavioral changes.
There's a lot of behavioral changes when an
animal is under the weather.
they are distant from their group.
feel sometimes that they're warm.
8
9
They don't eat as well,

We can touch and
The indicators are very physical for us, and

we have on at least two occasions, probably more,
10
identified with Kalina her performing water -- behaviors
11
with her and feeling a difference in the way she
12
performed these behaviors, feel or not quite pull her
13
food the way she usually does.
14
people close to the whales, we let the veterinarians
15
know something is a little bit off.
16
And, those behaviors as
We were not able to do that with Kalina
17
because we have suspended water work.
18
fact, we weren't forming a lot of tactile around even
19
her head at this point, and so while it is speculation,
20
I'm saying we didn't have those avenues of assessing
21
killer whale behavior that we have had in the past.
22
23
Q.
And, in your speculation, I mean you didn't
perform the necropsy on Kalina, right?
24
25
As a matter of
A.
I was present for Kalina's necropsy, yes, I
was.
CARLIN ASSOCIATES
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Q.
But, you weren't the veterinarian?
A.
I was fully briefed on what caused Kalina's
3
4
death.
Q.
Had Kalina survived, there is no way to know
whether trainers, other trainers might have been hurt or
even died if they had been in the water or Kalina or
other killer whales, right?
too, right?
MS. GUNNIN:
10
that question.
11
going with that.
12
13
We can speculate on that
Judge, I'm going to object to
I'm just not sure where Mr. Black is

He hasn't established any foundation.
JUDGE WELSCH:
Sustained.
Sustained.
Let's
move on.
14
BY MR. BLACK:
15
Q.
Well, it sounds like you want to pin the
16
blame of this whale's death on Sea World's decision to
17
take their trainers out of the water.
18
hearing?
19
A.
No.
20
Q.
Who are your blaming it on?
21
A.
I'm not blaming anybody.
Is that what I'm
I'm giving you -- I
22
was answering the question somebody asked me, and I
23
would have to understand exactly how it was asked.
24
Someone asked me why do I maintain that we should stay
25
in close contact with the killer whales, and I answered
CARLIN ASSOCIATES
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the question.
Q.
Now, Sea World not only has decided to stay
out of the water with all of its whales for the last
19 months, but also even before that, had decided at
various times not to go in the water with certain
specific whales, right?
A.
Yes.
Q.
Tilikum, for example?
A.
Yes.
10
Q.
Beginning in 2006, a whale named Kasatka,
11
right?
12
A.
Yes.
13
Q.
A whale named Orkid around that same time,
14
15
right?
A.
Those were both whales at the Sea World of
16
California park, and I'm well aware of decisions around
17
them, but if you're going to ask me specifics.
18
Q.
Right now, the only specific I'm asking you
19
is Sea World of California stopped doing water work with
20
those whales up until Tilikum killed Ms. Brancheau,
21
right?
22
A.
When Tilikum came to our park, he came from
23
another facility, and he had never had successful water
24
interactions with human beings.
25
When we condition a killer whale to perform
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water interaction, we start at a pretty young age.
teach them a whole series of behaviors that we describe
as etiquette behaviors.
close to us, we teach them how to approach us.
We
We teach them to not come too
So, with Tilikum, there was no question due
to his size and his history, that we weren't going to be
doing water work with him.
Mr. Black is referring to or both animals that after
reviewing their behavioral tendencies, after reviewing
The other two animals that
10
some behavioral incidents, I decided it was safest to
11
not give them an opportunity to rehearse this behavior
12
any more, and we no longer performed any water work with
13
him.
14
close contact behavior with him.
15
That does not mean we weren't performing very
Q.
16
I'm sorry, maybe I'm misunderstanding.

Close contact, so Sea World does not perform
17
any close contact behavior with its whales since Ms.
18
Brancheau's death?
19
A.
20
contact.
21
Q.
I guess you will have to define close
I'm asking you, I guess, for the definition
22
since you're saying they were still performing close
23
contact behaviors.
24
25
A.
They were up to the 24th.
I was referencing,
you said from 2006 on, and then I said they were still
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performing close contact behavior with those whales
until the 24th.
JUDGE WELSCH:
Those two whales in California?
THE WITNESS:
Yes.
JUDGE WELSCH:
Not water work but close contact
THE WITNESS:
Yes, and they were doing the same
6
7
work?
kind of in-water interaction with those two whales that
I was describing to you with Tilikum.
10
BY MR. BLACK:
11
Q.
So, in other words, they weren't getting in
12
the water with those whales prior to the incident with
13
Ms. Brancheau, right?
14
A.
From 2006 until the incident with Ms.
15
Brancheau, they would do limited water interaction much
16
like I was describing with Tilikum.
17
Q.
So, they couldn't do this evaluation that you
18
were talking about that might have saved Kalina's life,
19
right?
20
A.
Yes.
21
Q.
That's correct?
22
A.
Well, I think they were -- certainly, they
That's a "yes"?
23
were still doing -- they were able to get a lot closer
24
to the animals, they were able to get into the water
25
with them in the pool I was describing where you lift up
CARLIN ASSOCIATES
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1
2
3
the floor so they could evaluate the animals.

Q.
Well, Sea World could do that today with all
of its killer whales, right?
A.
We could.
Q.
So, if you needed to have that close contact
with your whales today and be able to evaluate them, you
could put them in the medical pool and raise up the lift
board to have that close contact?
A.
I don't think you're understanding the scope
10
of an evaluation.
11
talking about somebody who knows an animal, who is close
12
with them.
13
changes in their behavior, much like you can with
14
someone you've known for a really long time without
15
communication, much like a woman knows her child
16
without talking to that child.
17
When I described it to you, I was
They can see the subtleties, the subtle
You have a history with an animal, and that's
18
what I'm describing.
19
Kalina; that history of being in the water with her for
20
years that could pick up on subtle nuances in behavior.
21
Q.
That's what I was describing with
And, trainers who have been in the water with
22
Kasatka and working up until 2006 or Taima at Sea World
23
of Florida.
24
At some point prior to Dawn's death, they
25
stopped being in the water and noticing those subtle
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differences that they had previously noticed in the
water with those whales, right?
3
4
5
A.
They didn't have access to as much
information.
Q.
Yes, because Sea World decided that the risk
with these whales was greater than could be gained in
benefit from having that close interaction to evaluate
them, right?
A.
Yes.
10
Q.
And, in fact, Sea World has had 24 whales die
11
in the last 25 years while in captivity; somewhere
12
around that number?
13
MS. GUNNIN:
Judge, I'm going to object to the
14
question.
What is the relevance to this hearing about
15
the number of whales that have died?
16
JUDGE WELSCH:
17
MR. BLACK:
Mr. Black?
The relevance is that Sea World has
18
suggested that somehow what OSHA either has done in
19
issuing a citation or what they're seeking in the way of
20
abatement prevents Sea World from taking care of its
21
whales so that that --
22
23
JUDGE WELSCH:
Overruled.
Can you answer the
question; do you know?
24
THE WITNESS:
25
BY MR. BLACK:
That sounds close to the number.
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Q.
And, at the time that those whales died, Sea
World was in the water doing water work with most of
those whales, weren't they?
A.
I would have to look back.
Q.
That sounds right, doesn't it?
A.
I know there were some that we weren't doing
work with and some that we were doing extensive water
work.
9
10
Q.
Did they die because Sea World stopped doing
water work with them?
11
A.
We didn't stop doing water work with them.
12
Q.
Maybe I misunderstood your answer.
I thought
13
you said that some of the whales that died -- and we're
14
just talking about before February 24th of 2010 -- that
15
some of the whales had died because Sea World had
16
stopped doing water work with them.
17
testimony?
18
19
A.
Was that your
Whales that have died, other than Kalina?
this what you're talking to me about?
20
Q.
Yes.
21
A.
Okay, no, because we had not stopped doing
22
23
Is
water work with them.

Q.
Thank you.
And despite Kalina's death, you
24
still don't get into the water with the whales even
25
today, right?
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A.
No, we don't.
Q.
So, are you suggesting that Kalina died
3
4
prematurely because of stopping water work?

A.
I told the story about not being able to have
all the indicators that we have had access to before.
We don't have the indicators because we're not as close
to the killer whales as we have been in the past.
8
9
I'm not going to speculate on things that I'm

not qualified to speculate on.
I'm not a veterinarian.
10
I was present at the necropsy, and I understand that
11
probably you have another witness that can help you out
12
with specifics.
13
14
15
16
17
Q.
I'm a behaviorist.
So there's no need to further speculate about
what was the cause of Kalina's death?

A.
I made it clear at the beginning that I know
what she died of and I was speculating.

Q.
18
Very good, thank you.

I think you concluded your testimony with
19
saying that Loro Parque was not affiliated with Sea
20
World Parks and Entertainment in any way.
21
you correctly?
22
A.
23
24
25
asked.
Did I hear
I think I said, "yes," to the question I was
I'm not sure exactly how it was phrased.
Q.
But, we established on Direct that Sea World
owns at least four of the whales that are stationed at
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Loro Parque?
A.
Yes.
Q.
And, at least up until Ms. Brancheau's death,
Sea World provided supervision at that park to the
trainers who work with the killer whales, right?
MS. GUNNIN:
Judge, I'm going to object.
There is no foundation for the supervision at Loro
Parque.
9
10
JUDGE WELSCH:
Overruled.
Do you know the
answer?
11
THE WITNESS:
I actually don't know that I'm
12
the right person to answer this question.
13
anything you want to know about Sea World of Orlando and
14
how I supervise my supervisors, but I was not -- I did
15
not have direct line reports at Loro Parque and have
16
not.
17
BY MR. BLACK:
18
Q.
I can answer
But, you know from an incident report
19
involving a death in December of 2009 at Loro Parque
20
that, in fact, there was a Sea World trainer acting as a
21
supervisor involved in that interaction in which a
22
trainer was killed, right?
23
A.
Yes.
24
Q.
So, you know that that Sea World trainer
25
wasn't just there to observe what was going on, right?
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A.
Right.
Q.
That Sea World trainer was actually involved
as the supervisor during the interaction, right?
A.
Again, he was the most experienced trainer.
I do know a lot about the incident itself because I was
the contributing -- me and my team contributed to Sea
World Orlando's response in that corporate report, but I
don't know the details of the reporting structure over
there.
10
Q.
And I'm not asking you --
11
A.
He was the most experienced trainer on site
12
during that interaction.
13
14
Q.
lists him as supervisor, right?
15
16
17
18
19
And, you know that the incident report itself
A.
I would have to see it, but if you're saying
Q.
Does that sound right?
it -I mean, we can pull
it out and look at it if you need to verify.

A.
I'm trying to remember.
I believe he was in
20
the capacity of assistant supervisor, hourly supervisor.
21
So, yes, I could say supervisor.
22
Q.
And, you're aware that Sea World provided
23
training to Loro Parque trainers to actually open up
24
that park and operate it?
25
A.
Yes, I am.
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Q.
Now, you talked about operant conditioning
and those small individual steps involved in training
toward a behavior; do you recall that?
A.
Yes.
Q.
And, killer whales when they go off behavior,
when they do what is not wanted, perhaps aggressively,
perhaps undesirably, as you say Tilikum did, they don't
always follow small individual steps in going off
behavior, do they?
10
A.
I would classify Tilikum's behavior as
11
undesirable on the 24th, the act of Dawn ending up in
12
the water.
13
Q.
I would not classify it as aggressive.

I understand that.
That's why I used the
14
either/or.
That's why I said aggression or undesirable
15
behavior.
16
two things, they don't do it necessarily in any sort of
17
small steps like you were describing in conditioning a
18
behavior and training a whale?
When a killer whale engages in one of those
19
A.
Actually, they most often do.
20
Q.
They do?
21
A.
Yes.
22
Q.
So, what were the small steps?
23
24
25
Well, I guess
it depends on how you define the small steps, right?

A.
Well, the Judge asked me to describe all
kinds of precursive behaviors that we have over the
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years attached to undesirable behavior, and they could
perform one of those behaviors, they could perform three
of them, they could perform eleven of them and never
exhibit undesirable behavior, or they maybe perform
three or four, one, six of them and then perform an
undesirable behavior.
7
8
9
So, oftentimes there are steps toward the

Q.
There are things they show us.
But the things that they show you sometimes
10
are sudden in a big step rather than the little baby
11
steps you were talking about in shaping the typography
12
of a behavior?
13
A.
Again, I would go to talk to you about the
14
fact that in the 25 years I've been reviewing incident
15
reports, you have to see an incident report reflecting a
16
killer whale jumping.
17
incident report and see several indicators or several
18
things that we could have done with anything we should
19
learn from and have learned from, which explains the
20
drastic -- and if you graph out the dates on the
21
incident reports, they just -- we have one in ten years,
22
you know, at Sea World of Orlando, and that's because we
23
pay so much attention to the events when they happen.
24
No matter how small they are, we learn from them.
25
Q.
Without being able to examine an
I wasn't asking you about whether -- I wasn't
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going back to whether Tilikum's behavior was completely
unexpected.
define a precursor as always being one of these teeny,
tiny steps you take in training a whale to perform the
behavior that they're performing.
A.
I was just asking you whether you would
I'm having a real hard time with you talking
about approximations and telling me you want me to lay
that over precursors and undesirable behavior.
two totally different things.
They're
10
Q.
You're having --
11
A.
So I'm having difficulty understanding your
12
question.
If you're asking me if there are steps to
13
recognize before an unwanted behavior, absolutely.
14
that has nothing to do with training an animal in a
15
series of steps.
16
other easily.
17
Q.
But,
So, I don't lay the two over each
And, my point just was that you were
18
describing little teeny, tiny baby steps in training an
19
animal, and I was saying that, yes, you may take these
20
teeny, tiny approximations, but when a whale does
21
something undesirable, it may not be an undesirable
22
teeny, tiny step.
23
A.
It may be a big thing?
I need to make it clear that I don't ever
24
remember saying teeny, tiny.
25
behavior down to a series of steps, and I think what I
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used in my testimony was the alphabet.
steps being broken down.
We talked about
But, again, I just have a hard time with -- I
mean, what are you asking me?
Are you asking me if the
same steps that I take when I'm training a behavior --
the gastric tube is something we've talked about -- one
step is asking him to open his mouth, another step is
asking him to hold his mouth open for a greater period
of time, and another step is introducing the tube, and
10
another step is putting the tube a little bit further
11
down his throat.
12
And, you're asking me to lay these steps over
13
recognizing precursive behavior, and you're losing me
14
there.
15
Q.
You're saying that doesn't make sense to you.
16
Let's move on to something else, then, if that doesn't
17
make sense to you.
18
speaking of sense, right?
You did talk about water de-sensing,
19
A.
Water desensitization.
20
Q.
And, sometimes called water de-sense for
21
short?
22
A.
Yes, that could be called water de-sense.
23
Q.
You were talking about initially teaching the
24
whales to ignore the trainers in the water and how that
25
might evolve into a perimeter swim?
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A.
Yes.
Q.
And, with Tilikum you haven't done water
de-sense to where he was trained to ignore the trainers
in the water, right?
A.
Tilikum was trained on the perimeter
swimming, he was trained to ignore trainers.
the steps that we could perform safely with him.
8
9
Q.
We gave
I'm not saying that you take some of the
small steps or even teeny, tiny, steps towards doing
10
water de-sensing but whether you considered him
11
sufficiently trained to do the perimeter swim and ignore
12
you in the water such that he no longer posed any sort
13
of danger?
14
A.
15
trained.
16
Q.
No, we did not consider him sufficiently
And, you didn't wait until you reached that
17
level of water de-sensing with Tilikum before
18
interacting with him, right?
19
suspend interactions with Tilikum until you were able to
20
do that de-sense that you have described?
21
A.
That is, you didn't
When Tilikum arrived to us, we had very
22
strict protocols in place, and he had been with us
23
18 years or so before the incident.
24
history to assess what the next steps were with Tilikum.
25
Q.
We used all of that
I'm sorry --
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A.
We used his previous history, a history that
we didn't have a full picture of to set up a protocol
when he first came to us.
Q.
So, I take it that your answer to my question
is not waiting until you had that de-sensing to interact
with Tilikum.
wait"?
8
9
10
11
12
A.
about.
Your answer is, "That's right, we didn't
I want to understand what you're talking
Are you talking about when he got to Sea World?
Q.
Well, let's talk about as of the morning of
Ms. Brancheau's death.

A.
The morning of Ms. Brancheau's death, all of
13
our protocols around Tilikum were based on his 18 years
14
of history at Sea World.
15
Q.
I understand that, but now I'm only talking
16
about whether he was de-sensed by that morning or not;
17
water de-sensed?
18
A.
Tilikum is not water desensitized.
19
Q.
So, despite him not being water de-sensed,
20
you allowed your trainers, certain trainers, senior
21
trainers to interact closely with Tilikum, right?
22
23
24
25
A.
We allowed them to do that based on his
entire history at Sea World.

Q.
I understand that, but one of the safety
protocols that you discussed was water de-sensing,
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right?
A.
Yes.
Q.
Safety protocol.
A.
Safety protocol, yes, for in-water
5
6
interaction, right.
Q.
And, despite Tilikum not being water
de-sensed, you still allowed trainers, Dawn, to work
right next to Tilikum, correct?
A.
Yes. I allowed Ms. Brancheau to work right
10
next to Tilikum because I had confidence based on his
11
history.
12
ever bring anyone into the water with him and he rarely,
13
if ever, displaced any of those precursor behaviors,
14
undesirable behaviors that were not easily recognized.
15
Dawn was one of my -- Ms. Brancheau was one
He had never given us any indication he would
16
of my most experienced, capable animal trainers, and she
17
had a lengthy reinforcement history with Tilikum, and he
18
had a lengthy history with her.
19
interacted with Tilikum on a daily basis.
20
Q.
And, based on that, she
And, despite being experienced, one of your
21
most experienced trainers, she interacted very closely
22
with Tilikum without there being any water de-sense
23
safety protocol that Tilikum would follow predictably?
24
A.
Yes.
25
Q.
Now, I thought I understood when you were
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talking about the 1999 incident with the person who
either stayed in the park after hours or snuck into the
park.
His name was Daniel Dukes, right?
A.
Right.
Q.
And, I just want to clarify something.
You
were talking about no longer doing gastric intubation,
is that what it was, of Tilikum?
A.
Yes.
Q.
As a result of that incident?
10
A.
Yes.
11
Q.
And, what I didn't understand is whether at
12
some point after that incident Sea World had resumed
13
doing that kind of procedure?
14
A.
We did that kind of procedure very rarely and
15
when medically necessary and overseen by myself.
16
decision to stop performing the gastric intubation was a
17
precautionary one.
18
us any indication that were we not Daniel Dukes, were we
19
not an animal trainer ending up in his environment, he
20
had not given us any behavioral indication there would
21
ever be any problem performing that behavior.
22
23
24
25
Q.
The
It wasn't because he had ever given
So, am I right, you stopped performing that
behavior with Tilikum in 1999?

A.
Yes.
Well, we stopped performing the gastric
hydration.
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Q.
Are you disagreeing or not liking me calling
it a behavior?
A.
No, I have no problem with you calling it a
behavior, but I just expected you to turn around and say
did you on such-and-such a date collect a sample from
Tilikum via a tube, but you didn't.
Q.
So, you stopped doing the gastric intubation.
Are you saying that had nothing to do with safety
evaluation?
10
A.
It had everything to do with safety
11
evaluation.
12
Dukes ended up in our pool.
13
behavior that we would eliminate.
14
part of that decision.
15
16
Q.
We decided that that was a

I was actually not a
I understand that you have only been at the
park in your leadership capacity as curator --
17
18
Safety evaluation happened because Daniel
A.
In 1999 I was one of the trainers that
performed the behavior with him.
19
Q.
But, you're fully aware of the reasons why
20
that behavior like gastric intubation was stopped in
21
1999?
22
A.
We're not doing gastric intubation today.
23
Q.
And --
24
A.
And would not perform it today.
25
perform that behavior today.
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177
1
2
Q.
Because of the risks, the safety risks to it
outweigh the benefits from it?
A.
Q.
That's what Sea World decided, right?
A.
Yes.
Q.
Now, you have talked about your management
team and trainers and the document they sign, the one
page I showed you during your examination this morning;
do you recall that?
10
A.
Yes.
11
Q.
And, Ms. Gunnin asked you a couple of
12
questions about it, and you said, "I understand why the
13
document was phrased the way it was phrased."
14
And can you tell me, you may have understood
15
it, but I don't understand what you meant by that.
16
was the document phrased the way it was phrased?
17
A.
Why
Can you remind me what we were talking about?
18
I know the document, but remind me what Ms. Gunnin asked
19
me?
I think -- I don't remember.
20
Q.
She asked you --
21
MR. BLACK:
May I approach, Your Honor?
22
JUDGE WELSCH:
Yes, go ahead.
23
MR. BLACK:
24
BY MR. BLACK:
25
Q.
(Handing Exhibit C-1).
Does looking at this refresh your
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recollection as to why you say you understood or
understand why the document was phrased the way it's
phrased?
A.
I want to answer you in the context -- and,
I'm sorry, but I don't remember what Ms. Gunnin asked
me.
Q.
Maybe I'll ask a different question then.
A.
Okay.
Q.
The way it's phrased, that's something,
10
obviously, that Sea World chose the way it is phrased,
11
right?
12
A.
Yes.
13
Q.
And, they could have phrased it a different
14
way, obviously, if they so chose, right?
15
A.
Yes.
16
Q.
And, they could have talked about, I think
17
what you talked about, which was all the things that
18
trainers learn and everything that we taught them to be
19
safe, and it could have included language in there that
20
said, "I understand that I've been taught all sorts of
21
things, and I'm acknowledging that I've been taught all
22
those things," right?
23
A.
Yes, I think that sentence -- what I would
24
like to say is the sentence prior talks about the
25
document itself.
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Q.
Right.
A.
And saying, "I know this.
By signing, I know
this."
In the next sentence they're saying, "I
understand my skills and experience application of
training techniques paired with my ability to provide
..."
here.
what we're saying they have read.
Your ability to evaluate animal behavior is not in

That's why it says "paired with."
I didn't write this.
So, this is
So, I'm not the best
10
person to ask about the language here.
11
you is that when somebody signs this, I'm accepting that
12
they have read this, but they do not gain the ability to
13
assess behavior and evaluate behavior from this text.
14
This tells you where you can walk, where you cannot
15
walk, how to.
16
17
What I'm telling
It's a how-to.
JUDGE WELSCH:
For the record the witness is
referring to Exhibit C-1 when she's saying "this."
18
THE WITNESS:
The last page.
19
MR. BLACK:
Thank you, Judge.
20
JUDGE WELSCH:
The last page of C-1.
21
MR. BLACK:
The last page of C-1, Page 1108.
22
BY MR. BLACK:
23
Q.
24
25
And, it says, "I realize that there are
inherent risks in performing my job description," right?

A.
Yes.
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Q.
And its says, "I agree to communicate with my
supervisor if I become uncomfortable with or unable to
take the calculated risks," right?
A.
What that is speaking to is that we have a
completely open door policy about any and all safety
concerns.
a cord in the environment to interacting with killer
whales, they can approach anybody all the way up to the
CEO of the Company with those concerns.
10
If somebody is concerned about anything from
open all the way up.
The doors are
And they have.
11
I've had trainers come to me and say, "I
12
understand that I'm working around large animals, I
13
understand the animals are dangerous, and my dog died
14
this morning.
15
interact with them."
16
I would like to make the decision not to
So they have to be in the right frame of
17
mind.
18
interact with the killer whales or not on any particular
19
day.
20
21
22
They know that it's up to them whether they
Q.
It's their own responsibility for safety.
That's what this is saying?

A.
Right.
If they don't feel -- what this says
23
is, "If you don't feel like you're in the right frame of
24
mind to interact with them, please talk to management
25
and we'll make sure that you don't have to."
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Q.
Well --
A.
On the other hand, it also says if you can't
prove that you're capable of doing this, you might well
be denied interactions, and that happens as well.
So, my management team both receives requests
to not interact, and they also limit interactions based
on a person's capability and preparedness to interact
with killer whales.
9
10
Q.
I understand all of that, but this reads like
a waiver, doesn't it?
11
A.
I don't know your language.
I'm sorry.
12
Q.
This says, "I understand the risks," and then
13
Sea World gets the employee to sign a document that says
14
they are all these risks involved, "I agree that I'm the
15
one responsible for deciding whether to take a
16
calculated risk.
Sign here."
Right?
17
A.
18
that question.
19
gets signed, and I make sure that the animals are
20
prepared, I make sure the trainers are not -- I don't
21
know what defines a waiver, I'm sorry.
22
I just don't think I'm qualified to answer

I'm not the person -- I make sure it
I make sure that they read the material, I
23
make sure they understand the material, and then I give
24
them volumes and volumes and volumes of materials in
25
addition to these pages that prepares them for
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interaction with killer whales.
Q.
And, then, you get them to sign the last
A.
And, the volumes and volumes are tracked in a
different way.
There's something we haven't seen today that I don't
even know the title of the document, but it's basically
a check-off sheet.
page?
I think I referenced that earlier.
And, the management team has to decide
10
whether or not someone is ready to go from walking
11
correctly in the area -- because there are different
12
ways to walk -- to taking the next step of carrying
13
buckets while walking.
14
So, I mean, there's more that is documented
15
and checked off or signed, and I believe those have the
16
trainer's initials and then the manager's initials, and
17
I don't know what a waiver is.
18
19
JUDGE WELSCH:
In terms of signing on Exhibit
C-1, the SOP's --
20
THE WITNESS:
Yes.
21
JUDGE WELSCH:
-- is that signature done at the
22
time a person has been qualified, by your definition
23
qualified as an animal trainer to interact in close
24
contact with killer whales, or is it done at the time
25
they're hired on as a trainer, or is it done at some
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other point in time?
asking?
THE WITNESS:
Do you understand the question I'm
Yes, I do understand the question
you're asking, and it's done from the time they complete
this document and annually thereafter; my review of this
document.
7
8
JUDGE WELSCH:
Is it signed any further?
Is it
Well, it became a sheet.
There's
signed again?
THE WITNESS:
10
no changes.
11
reviewed the protocols, and I have reviewed the
12
protocols this year.
13
It became an acknowledgement.
JUDGE WELSCH:
Yes, I have
The first time the person signs
14
that document, C-1, does that mean at that time that
15
individual is now an animal trainer qualified or able to
16
interact with the killer whales in close proximity?
17
18
THE WITNESS:
BY MR. BLACK:
20
Q.
22
23
24
25
It means that they have read
this.
19
21
No.
And, you're saying that they sign that waiver
and -JUDGE WELSCH:

"waiver."
She doesn't like the term
She doesn't understand that.
THE WITNESS:
They acknowledge that they have
reviewed the same page annually.
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BY MR. BLACK:
Q.
With that same language that's on the last
page of it?
A.
No.
Q.
Just the first time they review it, they sign
it, that language on last page, or you're not sure?
A.
I'm not sure.
Q.
I want to turn just for a second back to
I know that the last two.
Daniel Dukes in 1999.
10
Well, I want to ask you, incident reports, I
11
think you testified that those are the tools to review
12
behaviors so that you can avoid similar incidents in the
13
future; something along those lines?
14
A.
Yes, we review incident reports in detail.
15
We talk about them as a territorial team, we talk about
16
them with our management team, and we talk about them
17
with all the hourly trainers, and we learn from every
18
single event.
19
protocol.
20
Q.
Most often, it doesn't change our
So, after the death of Daniel Dukes, what
21
written information did you provide to the trainers
22
about Mr. Dukes' death and how he died, if any?
23
A.
I was not in a position of management when
24
Daniel Dukes died.
I was a trainer and I was not
25
involved in what communication was passed on.
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1
2
3
Q.
There's not any incident report written up
for Daniel Dukes' death in 1999?

A.
An incident report is a document that very
carefully outlines sequence of events.
all the behavior that led up to the event itself, we
talk about the environment, we talk about the trainer's
history with that animal, we talk about the animal's
history, we talk about the last interaction with the
trainer, we talk about the incident itself.
10
We talk about
We break it down into every single behavior
11
around the incident.
Was the response correct to the
12
signal or incorrect?
How did you reinforce?
13
you not reinforce?
14
Then we do paragraph forms.
How did
This is what
15
happened during the event.
16
the supervisor and the curator on premises at the park.
17
Then, it is circulated to the other parks.
18
gives their review.
19
Then, there's a review by
Everybody
Daniel Dukes, we have none of that
20
information.
Daniel Dukes, we arrived at the stadium in
21
the morning to find his body in the back.
22
know how Daniel Dukes got into the pool, we did not know
23
who he was, we did not know if Tilikum was involved in
24
Mr. Dukes' demise.
25
pretty -- I don't know how you could have written an
We did not
We knew nothing and we have been
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1
2
3
4
5
6
incident report with Daniel Dukes.

Q.
Okay, so the answer to my question is, "no,
there was no incident report prepared for Daniel Dukes"?

A.
No, there was no incident report for Daniel
Dukes.
Q.
That was sort of -- you went into a long way
of explaining, "no," when not even asked for an
explanation, right?
A.
I didn't follow your rule.
10
Q.
And, despite not having an incident report,
11
not knowing what happened, you still stopped doing
12
gastric intubations with Tilikum as a result of this
13
incident; if you will?
14
A.
That was a precautionary measure.
We as
15
trainers talked about every single thing.
16
know what happened, and as a precaution, we took a step
17
back while we evaluated Tilikum's behavior, while we
18
assessed his behavior to see if there was anything we
19
had missed.
20
Q.
We didn't
You were asked some questions or gave some
21
testimony about reinforcement history with whales as a
22
way to rehearse correct behavior.
23
generally?
24
25
A.
Do you recall that,
Yes -- well, say that again.
distracted.
I'm sorry, I'm
Go ahead, repeat it.
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Q.
You gave some testimony about the
reinforcement history and how that relates to rehearsing
correct behavior with the whales and making it more
likely that they're going to perform correctly or
predictably the next time?
A.
Right.
You're saying rehearsed.
What I would say is reinforced.
opportunity to build a reinforcement history with an
animal around a certain behavior which will increase the
10
11
I take every
likelihood of the behavior being performed.

Q.
And, one of those things that you talked
12
about was trying to reinforce the behavior of the whale
13
coming back to the stage when you slapped the water,
14
right?
15
A.
When I either slapped the water, tapped on
16
the water with a target, slapped the surface of the
17
stage or slapped the glass, and then hit a button that
18
emits an underwater tone; all of those signals that come
19
to me.
20
21
22
23
24
25
Q.
And, you call those signals recalls to the
stage or something like that?

A.
No, it's just a signal.
A recall would be
one specific underwater tone.

Q.
So, the recall, the underwater tone, the slap
is a signal that means what?
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A.
Come here.
Q.
And, the slap is something that is used to
get the whale to come here if you need the whale to come
here, right?
A.
Sure.
Q.
And, some of the times you need or want the
whale to come here is when the whale is doing something
undesirable or aggressive, correct?
A.
Actually, we're very, very careful about
10
that.
11
the opportunity to talk to you about that in detail.
12
So, I'll talk to you about that -- I would like
Q.
Let's see if my subsequent questions obviate
13
that.
If they don't, all I ask is that you answer the
14
questions as best you can.
15
The recall slap or the recall tone is
16
something that the animals are trained on in part to
17
recall them from some undesirable behavior, right, in
18
part?
19
Do you agree with that?

A.
We have to be careful with our timing of a
20
recall slap to the point where a recall slap is actually
21
a signal too, and a signal is actually a reinforcer.
22
It's a secondary reinforcer, access to reinforcement.
23
So, during unwanted behavior, I'm not going
24
to be slapping because you're reinforcing unwanted
25
behavior, but if you want to go into depth, if I see one
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of those precursor behaviors as a trainer-spotter, and I
either think the trainer has not recognized that or the
trainer might move on to doing something, having
recognized it that I as a spotter am not comfortable
with, I can slap the water and the animal will likely
respond.
Q.
Well, you know that in some notable incidents
that Sea World has had that trainers at stage or
elsewhere have tried recall slaps to get the whale to
10
stop doing the undesirable or aggressive behavior,
11
right?
12
A.
I'll tell you probably if you looked at every
13
incident, you would see a number of times that the
14
recall slap did exactly what it needed to do.
15
animal had done something we didn't want so see happen
16
again.
17
performed a recall slap and the animal came away.
18
think if you review those incidents -- and I think you
19
probably have -- you will see that many, many times that
20
the animals respond to the slap.
21
22
23
24
25
The
The animal stopped engaging in that behavior, we
Q.
And, on several occasions, notable occasions,
the whales did not respond to the recall slap, right?

A.
Can you tell me several?
What do you mean by
"several."
Q.
I can, since you asked.
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The Kasatka incident in 2006 with Ken Peters,
the whale did not respond to repeated recall slaps,
right?
A.
And, those recall slaps were given when the
whale was engaged in unwanted behavior.
to condition our trainers when things are asked about it
how you respond when you're in an undesirable situation.
When the animal is engaged in behavior that's
We have learned
undesirable, you don't want to then reinforce that
10
engagement by slapping the surface of the water.
11
Sometimes it happens.
12
happened where people were slapping the surface of the
13
water while she was engaged in behavior we would rather
14
not see.
15
Q.
In Kasatka's incident, it
Well, it's happened when killer whales have
16
captured pelicans or sea gulls that there have been
17
recall slaps in the middle of that?
18
A.
I've not been pool side when that happened.
19
But, again, I would like to talk about the timing of the
20
recall slap; that you're not going to be effective.
21
not over the trainers that you're talking about.
22
talking about Sea World of California trainers.
23
say how they have been trained.
24
the right thing for me to do here.
25
You're
I can't
I don't know if that's
I can tell you that my trainers in Orlando
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I'm
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understand that timing is very important when slapping
the surface of the water.
3
4
Q.
Well, recall slaps were tried with a whale
nicknamed Kai and Steve Able in 2004 in Texas, right?
A.
That happened in Texas.
Q.
Right, and recall slaps were not successful
there, right, in recalling the whale?
8
9
10
A.
recall slaps when applied correctly work more often than

they don't work.
11
12
I've been involved in reviewing and I've seen
Q.
Are you familiar with the incident report
involving Kai and Steve Able in 2004?
13
A.
I know that Kai had an incident with Steve
15
Q.
And you have seen video of that, right?
16
A.
I have.
17
Q.
And, you know that recall slaps were done and
14
18
19
Able.
they failed?
A.
I know that Steve Able was the most
20
experienced trainer on the site, and Steve Able was
21
making -- you're rolling your eyes.
22
Q.
Well, I'm rolling my eyes because either, yes
23
or no, I know that recall slaps were tried and failed or
24
recall --
25
A.
Inappropriately timed recall slaps failed
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1
2
3
4
5
6
7
that day.
Q.
Thank you.
is just something that I will try my best not to do.

A.
I feel like I'm frustrating you, but I have
done this before.
I'm sorry.
JUDGE WELSCH:
Let's go on with your
questions.
BY MR. BLACK:
Q.
10
And, I'm sorry, the rolling eyes
And, recall slaps or a recall tone wasn't
even -- was it even tried with Tilikum?
11
A.
Yes, I believe a recall tone was attempted.
12
Q.
And that didn't work either?
13
A.
It did not.
14
Q.
And, the incident report with Steve Able, you
15
know that one of the curators, in fact, commented and
16
said that these recalls rarely work when an incident is
17
going on, right?
18
A.
I made it clear to you that the timing of the
19
recall slap -- I would like to point out if you review
20
all the incidents, you will find many more times the
21
recall slap when timed appropriately works than it
22
doesn't work.
23
situations where they slapped the water inappropriately.
24
25
Q.
Human nature has put some trainers in
And, so the recall slap as a means of safety
only works sometimes but doesn't work all the time?
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A.
It works very well when you recognize the
precursors to behavior.
get on the front end of undesirable behavior.
4
5
Q.
It's very effective when you
No opportunity for a recall slap with
Tilikum, right?
A.
In what --
Q.
The incident with Dawn, there wasn't any
opportunity for a recall slap to succeed with him, was
there?
10
A.
11
Q.
Let me withdraw that question and ask it a
12
little bit differently.
13
There was not really an expectation that the
14
recall slap was going to work with Ms. Brancheau in the
15
water with Tilikum?
16
17
18
A.
No, there was not.
He was engaged in
Q.
And, you talked about the Tilikum trainers,
19
the senior trainers making an appropriate decision and
20
remaining calm as being very important, right?
21
A.
Yes.
22
Q.
And, so despite all of that remaining calm
23
and making an appropriate decision really sometimes, at
24
least in that instance, wouldn't have had any
25
effectiveness, right?
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1
2
A.
Ms. Brancheau remained calm; is that what
you're asking me?
Q.
Yes, remained calm.
A.
She made the right decisions once she was in
the environment with him.
Q.
She made the right decisions once she was --
A.
She made appropriate behavioral decisions
8
9
when she was in the environment.

Q.
But, all of those decisions, of course, did
10
nothing to prevent the outcome which Sea World would
11
have been concerned about had somebody been in the
12
water, right?
13
A.
They did not.
14
Q.
Now, you said something about trainers have
15
the option to choose not to interact with a killer whale
16
during the show.
17
whales' social activity going on and may be the best
18
decision.
19
You mentioned something about killer
(Short Interruption)
20
BY MR. BLACK:
21
Q.
22
We were talking about killer whales' social
activity going on during a show.
23
A.
Yes.
24
Q.
And if that happens, the trainers can choose
25
not to interact with the whales?
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A.
Yes.
Q.
And, in fact, that might be the best choice
often if not always?
A.
Sure, yes.
Q.
Because sometimes the killer whales do what
they want to do, right?
A.
Yes.
Q.
And, as I think you have said, some version
9
10
of this, you can't really tell a killer whale what to

do.
You can only ask it, right?
11
A.
Correct.
12
Q.
So, if the killer whales are engaged in this
13
social activity, it's probably best to not try to stop
14
it, right?
15
A.
We do not.
16
Q.
And, the social activity, that's something
17
that killer whales do; they engage in social activity?
18
A.
Yes.
19
Q.
After all, a killer whale in Sea World parks
20
is a killer whale, right?
They don't become something
21
less than a killer whale just because they're at a Sea
22
World park, right?
23
A.
They're still killer whales.
24
Q.
And, the killer whale instinct is not
25
something that is eliminated by Sea World, right?
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1
2
A.
Tell me what you mean by killer whale
instinct.
Q.
Killer whales have a certain instinct?
A.
Animals have instinct, yes.
Q.
What would you define as instinct?
A.
Instinctive behavior.
Q.
Yes.
A.
That's not learned; not practiced.
Q.
So, because I saw you not rolling your eyes
10
at me, but furrowing your brow, if you will?
11
A.
Confusion, I think.
12
Q.
Confusion.
Okay, so killer whale instinct
13
still exists for the killer whales who are in Sea
14
World's pools, right?
15
A.
Behaviors that they do, they're instinctive,
16
they're not learned.
17
Sea World?
18
not.
19
Q.
Do they go away when they're at
I'm asking an instinct.
No, they do
What is a killer
20
whale's instinctive behavior is still in the killer
21
whale's instinct even when they're at Sea World, right?
22
A.
Yes, but I'm hoping you're going to define
23
which instinctive behavior you're talking about or maybe
24
somebody else -- do calves bump down?
25
whale instinctively for the first time respond to a calf
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Does a mother
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bumping alongside of them?
Yes.
Instinctive behavior, I mean, there's a lot
out there.
wouldn't call instinctive behavior.
you're going to elaborate a little bit.
Q.
People will say instinctive behavior that I

So, I'm hoping
Well, I'm probably not going to elaborate in
the way that you want because I'm just asking you the
simple question whether instinctive behavior that killer
whales have is not eliminated by Sea World and it's
10
programs?
11
12
A.
Instinctive behavior is not eliminated by
being in the care of man, no.
13
Q.
So, we're clear on that, right?
14
A.
Yes.
15
Q.
You talked about the relationship session
16
that Ms. Brancheau was having with Tilikum, and
17
relationship sessions are something that trainers have
18
with whales sort of frequently generally, right?
19
A.
Daily.
20
Q.
Daily.
Okay.
And, when you say relationship
21
session or relationship, the relationship with a whale
22
is only a one-way relationship, right?
23
24
25
A.
I'm furrowing again.
Yes.
Whales do you
Q.
I'll ask a couple of questions and see
mean?
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whether you agree.
A.
This, you're going to elaborate on?
Q.
Sea World doesn't know what the killer whales
4
5
6
7
8
9
10
11
are thinking, obviously?

A.
We have never claimed to know whales the
killer whales are thinking.

Q.
I didn't say that.
And Sea World doesn't
know -A.
Other people have claimed to know what killer
whales are thinking.

Q.
In this Court, I'm not making any such claim.
12
And Sea World doesn't claim to know what the whale is
13
feeling, right?
14
A.
No.
15
Q.
You can only talk about the described
16
behavior that you observe, right?
17
A.
Absolutely.
18
Q.
As an animal behaviorist, right?
19
A.
Yes.
20
Q.
So, you're not going to say the whale felt
21
this way or the whale was acting that way to mean
22
anything about the whale's internal state?
23
A.
You won't hear me say that.
24
Q.
You said there's no bright line between shows
25
or husbandry, right?
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A.
Correct.
Q.
But, Sea World is the one who chooses what
behaviors to exhibit or present to the shows, right?
A.
Yes.
Q.
And Sea World could choose not to present
husbandry behaviors at the shows and, in fact, does
choose often not to present husbandry behaviors at the
show?
A.
I would have to ask you to define "show"
10
because like I said before, there are shows that we've
11
done husbandry behaviors in, and I think the public has
12
wanted to learn more and more about how we care for the
13
killer whales.
14
type behaviors in shows.
We have included more and more husbandry
15
Certainly, when we offer the educational camp
16
that comes for an educational presentation, we will show
17
them husbandry behaviors.
18
anything with an audience, or are you talking about the
19
one show?
20
Q.
21
So, are you talking about
That's a good clarifying question.

The shows that Sea World performs that you're
22
talking about for an audience of vets or vet students,
23
Sea World doesn't need to perform those in order to be
24
able to take care of their whales, do they?
25
A.
No.
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Q.
So, those shows are not something that is
essential to Sea World's business in order to stay in
business, right?
A.
No, but the behaviors that we do in the one
ocean show contribute to husbandry behaviors that we
execute in other areas, other times of the day.
Q.
But, you said a show, it's an opportunity to
help with the behaviors including husbandry behaviors,
right?
10
A.
Right.
The reinforcement history around the
11
show in and of itself resorts to a whole lot of training
12
interactions that -- we don't have as many opportunities
13
to rehearse in our environment.
14
husbandry behaviors during the show frequently.
15
Q.
So, we'll rehearse
But, the show is simply another opportunity
16
to create reinforcement history in addition to all the
17
other things that Sea World does to create reinforcement
18
history, right?
19
A.
Sure, it's an opportunity in that pool and
20
it's around anything else.
21
with our shows.
22
training.
23
All of our training overlaps
They're a very important part of our
They contribute to the health and well being
24
of the animals, and that is one of the ways they
25
contribute to the health and well being of the animals
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is that we have rehearsed the game or reinforcement
history, every single interaction we do with the animal.
Even if I wasn't asking for the animal to
open his mouth during the show, I'm interacting with the
animal and contributing to the reinforcement history
with that animal.
contributes to the health and well being of the animals.
8
9
Q.
So, every single interaction
Right, but the health and well being of the
animal is not essential that those behaviors be
10
performed during the show to create the reinforcement
11
history or the husbandry behaviors, the medical
12
behaviors, right?
13
A.
I wouldn't want to say I wouldn't do that in
14
the show.
15
just described, the show might be the best environment
16
to grab an opportunity to rehearse a behavior.
17
Q.
I wouldn't want to limit it because as I've
It might be but if you were weighing the
18
safety calculations -- and I understand that you
19
probably have a different way of safety calculations
20
than OSHA and the Secretary does.
21
But, if you were weighing it, and you decided
22
that it's too dangerous in shows to get in the water
23
with the whale, it's too dangerous to have close contact
24
with the whale, then there's nothing that would prevent
25
you from saying, okay, let's rehearse these only in
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nonshow environments where we can provide different
kinds of protections?
A.
You're asking me to speculate on something
that we have never done at Sea World.
me to come with up a number -- and don't know how, you
used the "number" term in there somewhere -- something
that we've never done before.
how that would impact the husbandry behaviors that we
perform with the animal because that's not something
10
So, you're asking
So, I can't speculate on
we've ever done.
11
So, you're asking me to speculate.
We have
12
done it this way for 45 years, and you're saying it
13
wouldn't affect it if you couldn't do it this way, and I
14
can't speculate on that.
15
16
17
18
Q.
Maybe I'm missing -- what part of it is
speculation?
A.
You asked me -- can you read back what you
asked me?
19
Q.
I can't because I didn't write it down.
20
JUDGE WELSCH:
21
I think he's asking in terms of if you took the
Can you rephrase your question?
22
animal husbandry behaviors -- could you take them out of
23
the show and still have your show?
24
THE WITNESS:
Right.
25
JUDGE WELSCH:
I think that's the ultimate
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2
question he's asking.

THE WITNESS:
And still have the show?
thought you were asking me if that would affect the
ability to perform husbandry behaviors with killer
whales.
BY MR. BLACK:
Q.
Would it negatively affect so that you now
can say that it's impossible to take care of our whales
safely?
10
A.
I don't know.
We have never done it that way
11
in 45 years, and you're asking me to speculate.
12
did this, what would happen to your training regimen, or
13
what would happen to your husbandry behaviors, and I'm
14
telling you we've never done that before, so I don't
15
know what would happen.
16
Q.
If you
Now, you talked about the reinforcement
17
history with Tilikum.
18
talked about his reinforcement history?
19
recall saying that the reinforcement history was such
20
that we had no reason to expect that he would do what he
21
did, right?
22
23
24
25
A.
Do you recall generally that you
We had no reason to expect that he would pull
somebody into the water.

Q.
And do you
That's what I said.
But, that's based on his behavior in the past
and not based on perhaps what other whales have done,
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right?
A.
Each individual animal has an individual
reinforcement history an individual history, and his was
not such that any previous behavior indicated that he
would pull somebody into the water with him.
Q.
So, Sea World's position is that it's only
what the whale has done in the past that is going to
indicate what that particular whale is going to do in
the future?
10
A.
Sea World's position is we look at every
11
single thing that the whale has done, every single
12
behavioral interaction for each individual animal.
13
We also as trainers -- killer whale animal
14
trainers have a vast knowledge of what all killer whales
15
have done, and we use both of those things to come up
16
with training plans and protocols around each individual
17
animal's development plans and ways of interacting with
18
them.
19
Q.
And, in doing your scenarios, do you consider
20
the scenario that one whale will exhibit or perform a
21
behavior that you have seen in other whales but have
22
never seen in that whale?
23
A.
We do, yes.
24
Q.
And, you have seen a behavior where other
25
whales have pulled people into the water?
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A.
I have reviewed an incident report where a
trainer grabbed a piece -- a whale grabbed a piece of
clothing from the trainer and she ended up in the pool.
Q.
So, you know that whales are capable of
grabbing people from land and pulling them into the
water, right?
A.
Yes.
Q.
And, so you know this fact and, yet, you
don't consider it because you consider the reinforcement
10
history to be the assurance that this whale is not going
11
to do that?
12
A.
Let me make it clear.
You're referring to
13
the reinforcement history where you think you're talking
14
behavioral history?
15
Q.
That's fine.
16
A.
His behavior was never indicative that he --
17
never indicated that he would come out and physically
18
displace a trainer much less grab a trainer and pull
19
them in.
20
Q.
21
But, other whales have displayed that
behavior, at least once?
22
A.
Physically displacing a trainer, yes.
23
Q.
And pulling the trainer --
24
A.
An incident where a whale got ahold of a
25
loose article of clothing on a trainer and pulled her in
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1
2
the water only to quickly let go of her.

Q.
And, you also talked about spotters and said
that the spotter's purpose was to be another set of
eyes; do you recall that?
A.
Yes.
Q.
And, so in Tilikum's case, the spotter would
be doing -- what was the purpose of the spotter in
Tilikum's case?
Same thing?
To be another set of eyes?
A.
Yes.
10
Q.
And, is that the only purpose of a spotter,
11
12
to be another set of eyes?

A.
To constantly assess the environment and
13
pretty much as I described before, constantly assess the
14
environment and provide communications, two-way
15
communication between the control trainer and themselves
16
about anything going on in the environment.
17
18
Q.
And Jan Topeleski, he was the spotter when
Dawn was pulled into the water, right?
19
A.
Yes, he was.
20
Q.
And, as a second set of eyes or another set
21
of eyes, he could have been looking for any Tilikum
22
behavior that might have been a precursor or indicated
23
that something bad was going to happen, right?
24
A.
Yes.
25
Q.
But, that was it.
CARLIN ASSOCIATES
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Ms. Brancheau in the water, at that point his only
function as a spotter is to hit the recall tone and to
get help?
A.
Initiate emergency procedures.
MR. BLACK:
I have no further questions.
JUDGE WELSCH:
Thank you.
Ms. Clark, I will instruct you not to discuss your
testimony with other persons who may called later as
witnesses in the case.
10
THE WITNESS:
11
12
Thank you.
(Witness Excused)
JUDGE WELSCH:
It's 25 until five.
We will
13
adjourn for the evening unless you have a very short
14
witness, but we should be out before 5:00.
15
16
17
MR. BLACK:
He's going to be considerably
shorter than Ms. Clark, but I would not expect to -JUDGE WELSCH:
Why don't we stand adjourned until
18
9:00 tomorrow morning.
19
Thank you.
20
21
22
---o0o--(Whereupon, the proceeding was

adjourned at 4:35 p.m.)
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C E R T I F I C A T E
2
3
I, NORMA CARLIN, a duly qualified and practicing
Court Reporter, do hereby certify that the foregoing
proceeding was recorded by me by means of recording in
the presence of all parties; that subsequent thereto, my
tapes were reduced to typewritten transcript under my
supervision; that the transcript herein is a true and
accurate translation of said proceedings; and that I am
10
11
12
a neutral party herein.

WHEREUPON, I have set my hand in Cleveland, Ohio,
this 28th Day of November 2011, A.D.
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BY:__________________________
Norma Carlin
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----------------------------------- x
)
)
SECRETARY OF LABOR,
)
)
Complainant,
)
)
-vs)
)
)
)
Respondent,
)
)
)
------------------------------------x
14
OSHRC DOCKET
NO. 10-1705
VOLUME II.
15
16
Before:
Judge Ken S. Welsch
17
Date:
Tuesday, September 20, 2011

9:00 a.m.
Place:

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APPEARANCES:
JOHN BLACK, ESQ.
TREMELLE I. HOWARD-FISHBURNE, ESQ.
Suite 7T10
(404) 302-5435
Suite 2400
(404) 525-8622
GEORGE COE, ESQ.
JON L. MILLS, ESQ.
KAREN DYER, ESQ.
Suite 840
407-425-7118
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I N D E X
WITNESSES
Name
Herrara
Schaber
Tompkins
Direct
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256
352
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7
8
9
10
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13
Cross
Redirect
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292
---o0o---
Recross
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-
EXHIBITS
Complainant's
C-2
C-3
C-4
C-5
C-6
Description
Google Map
Photos of G Pool
Videotape
Orientation Checklist
Incident Report
Marked
Admitted
215
221
235
263
371
216
229
246
265
-
301
301
303
303
Respondent's
R-1
R-2
Animal Training Manual

Area Manual Shamu Stadium
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Morning Session
9:00 a.m.
JUDGE WELSCH:
This hearing is reconvened in the case of
Secretary of Labor versus Sea World of Florida, LLC.
Mr. Black, does the Secretary wish to call her
8
9
next witness?
MR. BLACK:
10
The Secretary calls Mr. Fredy Herrara.
11
JUDGE WELSCH:
Mr. Herrara?
12
---o0o---
13
FREDY HERRARA,
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15
16
JUDGE WELSCH:
Sir, for the record, would you
17
state your full name, spell your last name, and state
18
your address, please?
19
THE WITNESS:
Fredy Herrara, F-r-e-d-y.
The
20
last name is H-e-r-r-a-r-a, and my address is 14324 East
21
Isla Morada Drive, Orlando, Florida.
22
JUDGE WELSCH:
How do you spell the street?
23
THE WITNESS:
I-s-l-a M-o-r-a-d-a Drive.
24
JUDGE WELSCH:
Thank you, sir.
25
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MR. BLACK:
---o0o---
DIRECT EXAMINATION
BY MR. BLACK:
Q.
Good morning, Mr. Herrara.
A.
Good morning.
Q.
I'm going to ask you some questions sort of
similar to what you had in your deposition taken in this
case.
10
Okay?
I'll ask you to answer them the best you're able.
11
A.
Yes.
12
Q.
You're a security officer at Sea World of
13
Florida?
14
A.
Yes, I am.
15
Q.
And, you've been in that position for about
16
six years now?
17
A.
Yes, six and a half years.
18
Q.
Six and a half years.
19
20
What are your duties in that position?

A.
My duties is to help the guests, help
21
employees, be sure nothing happens to our property,
22
assets, be sure everybody is safe.
23
24
25
Q.
And, before you started working at Sea World
six and a half years ago, you were a police officer?

A.
Yes, I was.
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1
2
Q.
And, that was with the New York City Police
Department Transit Bureau?
A.
Yes, it was.
Q.
That was for 20 years?
A.
Yes, I did it for 20 years.
Q.
Now, in your position at Sea World, sometimes
you have worked at Shamu Stadium?
A.
Yes, I did, sir.
Q.
Do you know what Shamu Stadium -- well, how
10
would you describe Shamu Stadium; what it is, what area
11
it encompasses?
12
13
14
15
A.
As I stated, we have the whale show, and in
the back areas is where the whales are kept in training.

Q.
And, as security officer for Sea World, you
worked there on many occasions?
16
A.
Yes, I have, sir.
17
Q.
And, you had worked there prior to
18
February 24th of 2010?
19
A.
Yes, I did.
20
Q.
So, you're generally familiar with the layout
21
of that stadium?
22
A.
Yes, I am.
23
Q.
I'm going to show you a photograph or
24
actually a Google map.
25
MR. BLACK:
And, Judge, we're at Tab 28.
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Judge, may I approach to get this marked?
JUDGE WELSCH:
Yes.
(Whereupon Complainant's Exhibit C-2 was marked
for identification and entered into the record)
BY MR. BLACK:
Q.
Mr. Herrara, I've handed you what has been
marked for identification as Exhibit C-2, and you have
seen this map before, this Google map?
A.
Yes, more or less.
10
Q.
You saw it at your deposition, right?
11
A.
Yes.
12
Q.
And, this Google map accurately depicts the
13
layout of the Shamu Stadium pools as of February 24,
14
2010?
15
A.
Yes.
16
MR. BLACK:
17
Exhibit 2, Your Honor.
We would offer Complainant's
18
JUDGE WELSCH:
Ms. Gunnin, any objection to C-2?
19
MS. GUNNIN:
Judge, I don't know how they are
20
going to authenticate a Google map.
I know it's printed
21
on June 27th, but I don't know on what date this
22
photograph would have been taken.
23
day that it was printed.
24
and I'm not sure it would be an actual accurate
25
depiction from what time.
It's not taken the
It's obviously a stored image,
I don't know if it's a
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picture from after the event or if it's a picture from
before the event.
MR. BLACK:
Judge, just so you know, we just
want to give a general layout of the way things are.
We're not doing anything other than trying to help the
Court understand directions to the extent that we look
at any close up.
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9
JUDGE WELSCH:
Mr. Herrara, looking at C-2, do
you recognize that as Shamu Stadium?
10
THE WITNESS:
Yes.
11
JUDGE WELSCH:
As of prior to February of 2010?
12
THE WITNESS:
Yes, it looks the same.
13
JUDGE WELSCH:
Do you see any changes whatsoever
14
from what is in this Google map at C-2; any changes that
15
might have existed prior to February of 2010?
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17
THE WITNESS:
I mean, it's hard looking at, but
all the pools are still the same.
18
JUDGE WELSCH:
You don't detect any differences?
19
THE WITNESS:
Not from the aerial view, no.
20
JUDGE WELSCH:
C-2 is admitted into evidence.
21
(Whereupon Complainant's Exhibit C-2, previously
22
23
BY MR. BLACK:
24
Q.
25
In Herrara, on this map at C-2, it shows the
Dine With Shamu pool?
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A.
Yes.
Q.
That's also known as the G pool as in the
letter G?
A.
Yes.
Q.
The Dine With Shamu pool, the G pool, is the
Are you asking me?
sort of dark rectangle near the top of that photograph?
A.
Yes, it is.
Q.
The darker blue.
JUDGE WELSCH:
I think it would be more helpful
10
to me, could you use my pen, sir, and just draw a line
11
to the, what did you call it, the Dine With Shamu pool?
12
THE WITNESS:
Yes.
13
JUDGE WELSCH:
Can you draw a line just from
14
there to the side and write "Dine With Shamu pool" and
15
then underneath that write "G pool," and if you wouldn't
16
mind, put your initials?
17
MS. GUNNIN:
Judge, may I approach?
18
JUDGE WELSCH:
Yes.
19
Do you want to see what it
is?
20
BY MR. BLACK:
21
Q.
And, Mr. Herrara, the Dine With Shamu pool,
22
it's called Dine With Shamu because there's a restaurant
23
located at that pool?
24
A.
Yes, there is.
25
Q.
That's the Cove Restaurant?
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A.
Yes.
Q.
And, now, I guess can you indicate on the map
where the Cove Restaurant is; which side of the pool?
4
5
A.
On the same pool, the rectangle on the left
of it; left side of the pool.
JUDGE WELSCH:
Just draw a line to it or circle
it and draw a line out to the side and just write "Cove
Restaurant" and then your initials; put your initials
underneath.
10
THE WITNESS:
11
BY MR. BLACK:
12
Q.
(Witness Complies).
And Mr. Herrara, the Cove Restaurant when you
13
worked at the G pool, you're stationed in the Cove
14
Restaurant area?
15
A.
Yes, I am.
16
Q.
And, now, on the date that Ms. Brancheau was
17
involved in the incident here, can you indicate where on
18
that map she was at the time that she was taken into the
19
pool?
20
A.
Describe it?
21
JUDGE WELSCH:
Why don't you just put an "X" and
22
then draw a line out to the side and write "Ms.
23
Brancheau."
24
THE WITNESS:
25
JUDGE WELSCH:
(Witness Complies).
Put your initials.
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THE WITNESS:
BY MR. BLACK:
Q.
(Witness Complies)
And, on February 24, 2010, you were stationed
at the G pool at the Cove Restaurant?
A.
Yes, I was.
Q.
And, what were your duties at the Cove
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Restaurant?
A.
My duties were to be vigilant, make sure that
nobody threw anything in the pool or anybody went into

the water.
Q.
And, were you told anything by Sea World
12
management as far as how far you had to stay away from
13
the whale pool?
14
A.
At that moment, no, because there's tables
15
that go up to a rope that's before the pool and
16
everybody walks behind the tables.
17
18
Q.
Are you told as part of your duties to stay
at least five feet away from the whale pools?
19
A.
Yes, most of the time five or more feet.
20
Q.
Five or more feet; sometimes it's more?
21
A.
I don't need to be any closer.
22
Q.
Now, before February 24th, you had seen Dawn
23
Brancheau do the Dine With Shamu show?
24
A.
Yes.
25
Q.
And you saw her do it more than ten times?
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A.
Probably.
Q.
And, you had seen her do the Dine With Shamu
show with a whale known as Tilikum several times?
A.
Yes, I have.
Q.
And, currently, there is some construction
going on at that pool, the Dine With Shamu pool, right?
A.
Yes, there is.
Q.
But, you had an opportunity to observe that
pool prior to any of the construction beginning?
10
A.
Yes, I have.
11
Q.
And you know what it looked like?
12
A.
Yes.
13
Q.
I want to show you some photographs, a series
14
of photographs so we can understand.
15
photographs rather and from above.
These are now
16
MR. BLACK:
Judge, I'm sorry, this is at C-27.
17
JUDGE WELSCH:
Mr. Coe, do you need to see the
18
photographs?
19
MR. COE:
20
JUDGE WELSCH:
21
Yes, Your Honor.

Mr. Black, could you show the
photographs to Mr. Coe?
22
MR. BLACK:
Yes, Your Honor.
23
JUDGE WELSCH:
Mr. Coe, any problem?
24
MR. COE:
No, Your Honor.
25
MR. BLACK:
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We're
221
going to mark this as a collective exhibit.
helps, these are individually paginated, and we can
refer to that by page number, and we can call them C-3,
Page 2670, 2671.
5
6
JUDGE WELSCH:
That's fine.
If it
As long as there's
some way to differentiate, that will be fine.
BY MR. BLACK:
10
Q.
Mr. Herrara, let me hand you what has been
11
marked for identification as C-3.
These are a series of
12
photographs of the G pool.
13
with the first page and tell me on this first page, what
14
view we're looking at in the G pool here.
15
2670.
First of all, let's start
This is Page
16
A.
The view here is where the trainers stand.
17
Q.
You're talking about in the foreground at the
18
19
20
21
bottom of the picture?

A.
At the bottom of the picture where the
telephone is, yes.

Q.
And, then you see a kind of an awning, an
22
area going across the horizontal center of the picture.
23
Is that the Cove Restaurant?
24
A.
That's the Cove Restaurant, yes.
25
Q.
So, we're looking from where the trainers are
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standing to the Cove Restaurant?
A.
Yes.
Q.
Where were you stationed on February 24th?
A.
On the left side of this picture, but it's
5
6
7
not in the picture.

Q.
When you say the left side of the picture,
that would be beyond the end of the awning there?
A.
Yes.
Q.
The Cove Restaurant?
10
A.
Yes.
11
Q.
If you will turn to the second page here,
12
2671, is that another view just expanded out or from a
13
further distance of what the preceding photo was?
14
A.
15
JUDGE WELSCH:
16
17
Yes, it is.
Were these photographs of the
pool as of a certain date?

MR. BLACK:
These photographs were provided
18
to us as representing what the pool was like before
19
construction began.
20
21
I will ask the witness whether he's aware of any

changes that were made.
22
BY MR. BLACK:
23
Q.
24
February 24th?
25
A.
Is this what the pool looked like on
Yes, it is.
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Q.
As we go through these photographs, if any of
them look different in the set-up, will you please let
me know?
A.
I'll let you know.
Q.
If you would turn to the third page, Page
6
7
2672, tell me what we're looking at here?

A.
We're looking at towards the -- there's a
scale straight ahead on the right-hand side of this
page, and the shallow area on the left side of that
10
scale.
Do you see where the umbrella is?
11
Q.
I see the umbrella.
12
A.
Right.
13
14
15
16
17
In front of the umbrella, there is a
square image there.

Q.
That's the scale for the whales.
If you would for the Judge and the Court's
benefit, circle the scale and draw -MR. BLACK:
Your Honor, I have a pen for Mr.
Herrara.
18
BY MR. BLACK:
19
Q.
And label it off to the side?
20
A.
(Witness Complies).
21
Q.
And, if you would circle the ledge area where
22
Ms. Brancheau was working with Tilikum right before she
23
was pulled into the pool?
24
A.
(Witness Complies).
25
JUDGE WELSCH:
And on the photograph, he's
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identified it as the ledge?
MR. BLACK:
JUDGE WELSCH:
MR. BLACK:
BY MR. BLACK:
Q.
10
Yes, immediately prior to the
incident.
And, the ledge is the area where
Ms. Brancheau was working at the time?
5
6
Yes.
And, Mr. Herrara, you had seen Ms. Brancheau
in this area working with Tilikum numerous times prior

to February 24, 2010, right?
11
A.
Yes.
12
Q.
So, it wasn't unusual that she was there that
14
A.
No, it wasn't.
15
Q.
If you would turn to the next page, Page
13
day?
16
2673, and if you could tell the Court what this picture
17
shows?
18
19
20
A.
This is a picture from the restaurant, from
the Cove, facing the stadium.

Q.
So, the photographer here is standing in the
21
Cove Restaurant, looking out on the pool towards the
22
stadium, towards the main stadium?
23
A.
Towards the main stadium, yes.
24
Q.
And, in the foreground there's some brown
25
area under the water.
Is that a shallow ledge on that
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side of the pool as well?
A.
Yes, it is.
Q.
And, Ms. Brancheau, she sometimes worked from
this area?
A.
Yes, she did.
Q.
If you would turn to the next page, Page
2674, is this just a slightly different view from what
we saw in the preceding picture?
A.
Yes.
10
Q.
This is taken from the Cove Restaurant?
11
A.
Yes, it is.
12
Q.
And, is this near where you were stationed?
13
A.
No, I was on the opposite side, on the
14
15
16
right-hand side.
Q.
Okay, now, the next page, Page 2675, this is
also taken from the Cove Restaurant?
17
A.
Yes.
18
Q.
Looking towards the main stadium?
19
A.
Yes.
20
Q.
And, if you would circle on this photograph
21
and label and indicate where the ledge was that Ms.
22
Brancheau was working, that would help.
23
A.
24
JUDGE WELSCH:
25
(Witness Complies).
There again, I note that Mr.
Herrara just identified it as the "ledge."
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1
2
MR. BLACK:
"ledge," yes.
He has just written the word
BY MR. BLACK:
Q.
If you would turn to the next page, Mr.
Herrara, Page 2676, and is this a closer view of the
ledge where Ms. Brancheau was working immediately prior
to the incident?
A.
Yes.
Q.
And, now, if you would turn to Page 2677 and
10
11
tell me what we see here?

A.
This picture is taken from the side of Cove.
12
It's a little bit back now towards the curve of the
13
restaurant.
14
the last picture.
15
Q.
From the last picture, this is taken behind
And, if you would just -- you said the curve
16
of the restaurant.
17
and just if you could indicate for us or point for the
18
Judge just so he can understand what the curve of the
19
restaurant is where you're indicating?
20
A.
If you would take the Google map,
Right here at the right angle, the restaurant
21
curves right here on the top, left corner of the
22
rectangle, the G pool.
23
Q.
The top left corner?
24
A.
Yes.
25
Q.
I'm sorry, the top right corner?
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A.
No, top left corner.
Q.
Let me reorient so now if we hold the map
vertically, then we're talking about --
A.
The top, right corner, yes, of that pool.
Q.
So, with the paper oriented in portrait
style, it's the top, right corner?
A.
Yes.
Q.
I just want everybody to be on the same page.
And on this Photograph 2677, do you see the
10
rocky area there along the ledge that is on the
11
right-hand side of the photo?
12
areas?
Do you see some rocky
13
A.
Yes.
14
Q.
Did Ms. Brancheau move around or over that
15
rocky area during the show?
16
A.
Yes, she did.
17
Q.
Now, if you could turn to the next Page 2678?
18
A.
(Witness Complies).
19
Q.
And, does this photograph on the far right
20
side show the scale again?
21
A.
Yes, it does.
22
Q.
That's on the right-hand side about mid page.
23
That's the scale you marked earlier?
24
A.
Yes.
25
Q.
And, that scale, you say that's a scale that
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Sea World uses to weigh the whales?
A.
Yes, it is.
Q.
And, then, on the left middle -- well, going
across the middle of the photograph, is that a close-up
of the ledge where Ms. Brancheau was working?
A.
Yes, it is.
Q.
Two more photographs.
If you would turn to
2679, and this is another view that indicates the ledge
where Ms. Brancheau was working as well as the scale?
10
A.
Yes.
11
Q.
And, the last Page 2680, here, we're looking
12
out over the pool towards the main stadium?
13
A.
Yes, it is.
14
Q.
And, in the middle of the photo, there's a
15
16
stairway.
A.
Do you know what that stairway goes over?

It goes over from the restaurant side up to
17
the trainer side.
18
restaurant side, and then come over to the left side
19
where there's the trainers' where they train the whales.
20
21
Q.
From the right side of it is the
So, that's one way to access from the ledge
of the rocks on the restaurant side to the other side?
22
A.
Yes, it is.
23
Q.
And underneath that, that's a canal?
24
A.
Yes.
25
another pool.
There's gates there.
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229
Q.
And that other pool is known as F pool?
A.
I believe so, yes.
Q.
And that's if we go back to Exhibit C-2, do
you see that?
A.
Yes.
Q.
If you would circle where you understand
where that stairway is and indicate "stairway over
canal"?
A.
(Witness Complies).
10
Q.
Mr. Herrara, having looked at these
11
photographs, do they fairly and accurately depict what
12
the G pool, the Dine With Shamu pool, looked like as of
13
February 24, 2010?
14
A.
15
MR. BLACK:
Your Honor, we would offer Exhibit
17
MS. GUNNIN:
No objection.
18
JUDGE WELSCH:
16
19
Yes.
C-3.
objection.
20
21
22
BY MR. BLACK:
23
Q.
24
25
Now, Mr. Herrara, the Dine With Shamu show,
can you explain what that is?

A.
The Dine With Shamu show is people make
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reservations and come in and have lunch or dinner, and
at the middle of their dinner or lunch, they will have a
show there with the whales.
Q.
And, the show is somewhere around 20 minutes?
A.
Yes, 20 minutes about.
Q.
And, on February 24, 2010, the show started
at 1:00 p.m.?
A.
Yes.
Q.
And, you arrived there shortly before
10
1:00 p.m.?
11
A.
Around 1:00.
12
Q.
You don't know to the minute?
13
A.
I don't know to the minute but around 1:00.
14
Q.
Did you arrive before the show had started on
15
I'm not exact.
that day?
16
A.
Yes, I did.
17
Q.
And, when you were stationed there, you
18
watched some of the show?
19
A.
Yes.
20
Q.
And, you saw Ms. Brancheau and other trainers
21
interacting with Tilikum?
22
A.
Yes.
23
Q.
And, the show and what you observed as far as
24
how close Ms. Brancheau got to Tilikum, that wasn't any
25
different than any of the previous shows you had seen?
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A.
No, I believe not.
Q.
At the end of the show, the guests started
getting up to clear out of the restaurant?
A.
Yes.
Q.
And, on this day they were doing that?
A.
Yes, they were.
Q.
And, some were taking pictures of the whale
and the trainer?
A.
Yes.
10
Q.
And, some were going to go down below to a
11
window area where they could take pictures of the whale?
12
A.
Yes.
13
Q.
And, at this time, Ms. Brancheau was still
14
interacting with the whale?
15
A.
Yes, she was.
16
Q.
What was she doing?
17
A.
She was playing games with the whale and
18
19
20
feeding him.
Q.
And, she was doing that from that ledge area
that we identified or you identified in the photographs?
21
A.
Yes.
22
Q.
And, playing with him, feeding him from this
23
area, you had seen her doing that at several shows
24
previously?
25
A.
Yes, I have.
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1
2
Q.
And, at some point, she was near the edge of
that ledge area?
A.
From my angle, yes, she was.
Q.
Was she lying down or was she on her knees?
A.
Was she lying down prior to or was she -- I
6
7
8
9
10
11
12
13
14
don't understand the question.

Q.
Well, when she was on the ledge, was she
standing up the whole time?

A.
Sometimes she was laying down and sometimes
she was standing up.

Q.
And, immediately before she was pulled into
the pool, was she lying down?

A.
She was laying down on her knees.
Laying
down, I couldn't tell at the moment.
15
Q.
She might have been propped up a little bit
16
on her knees?
17
A.
Yes.
18
Q.
But, she was in a horizontal position?
19
A.
Yes.
20
Q.
She was just a few inches, three or
21
four inches from the edge of the ledge when Tilikum
22
pulled her into the pool, right?
23
A.
I couldn't tell how far she was from the pool
24
from my angle.
25
Q.
But, that's the estimate that you were given?
CARLIN ASSOCIATES
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233
A.
Yes.
Q.
Obviously, you didn't measure it?
A.
No.
Q.
But, from where you were, that's what it
appeared to be?
A.
Yes.
Q.
I want to play a videotape for you and this
8
9
10
is a tape of that interaction.

JUDGE WELSCH:
Let me make sure.
Intervenor's videotape?
11
MR. COE:
12
MS. GUNNIN:
Yes, Your Honor.

Judge, may I ask, is this going to
13
be an exhibit?
14
during the time of the video?
15
This is the
Are we going to have testimony taken
JUDGE WELSCH:
16
intending, Mr. Black?
17
video?
Thank you.
What are you
Are you going to play the whole
18
MR. BLACK:
The video is somewhere a little
19
over 15 minutes.
20
has audio.
21
we played the video and I asked -- at some points, I
22
stopped the video to asked questions, and at other
23
points, I talked while the video was playing.
24
it to be an exhibit, so we think it will be pretty
25
clear.
And, yes, we intend to play it.
It
And, at deposition, the way we did this is
CARLIN ASSOCIATES
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We intend
234
1
2
JUDGE WELSCH:
The Court Reporter is not going
to transcribe any of the audio from the video?
MR. BLACK:
JUDGE WELSCH:
No, no.
If you stop and ask questions, is
there a way for you to identify where you are on the
video before you ask questions, so somebody reading the
transcript will know at what point in the video the
question is being asked and what the answer is?
MR. BLACK:
Right, that's a good question, Your
10
Honor.
11
this, we're going to use a media player to play this,
12
and it indicates the time.
13
14
JUDGE WELSCH:
MR. BLACK:
JUDGE WELSCH:
18
MS. GUNNIN:
20
21
22
Can you read that off for the
I can and I do intend to read that
off.
17
19
When we play
record?
15
16
Yes, there is the time stamp.
Okay.
Judge, can I ask if the audio is
going to be -- I would ask that the audio not be played.

JUDGE WELSCH:
Can you moot the you audio for
this purpose?
MR. BLACK:
Well, we could.
We can see
23
whether it's -- I'm not sure how this machine works.
24
at any time we decide that it's not helpful, but I think
25
it gives the full picture of what's going on.
CARLIN ASSOCIATES
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If
There's
235
nothing other than the whale makes some noises, there's
some talking by the trainers.
3
4
JUDGE WELSCH:
It's not
--
Okay, set up the video for me.
What date are we talking about in the video?
MR. BLACK:
We're talking about the Dine With
Shamu show, in which Ms. Brancheau was killed.
up to a few moments or a minute before she was pulled
into the water.
how close she was, how she worked around the pool with
10
It goes
So, it doesn't show that, but it shows
the whale.
11
JUDGE WELSCH:
So we're going to have this video
12
identified as Complainant's Exhibit 4 for
13
identification.
14
15
16
MR. BLACK:
Respondent has seen this video
17
before, and this witness has seen this video.
18
going to be new to them.
19
JUDGE WELSCH:
20
It's not
Go ahead and play the video.
(Video Presentation)
21
MR. BLACK:
And, Your Honor, you can see the
22
time stamp in the lower, left corner.
23
zero.
24
BY MR. BLACK:
25
Q.
I'll rewind it to
Now, Mr. Herrara, you have seen this video
CARLIN ASSOCIATES
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236
previously?
A.
Yes.
Q.
So you're familiar with it?
A.
Yes.
Q.
I'm going to stop at some points along the
way to ask you certain things.
7
8
MS. GUNNIN:
This is difficult for me to hear
him asking him questions and hear the audio.
JUDGE WELSCH:
10
BY MR. BLACK:
11
Q.
Can you turn the audio down?
And, Mr. Herrara, as I say, I may stop it
12
along the way, or I may ask you about certain points
13
along the way.
14
15
Can you tell me who the individual we're

seeing now at 116 on the screen?
Who is that?
16
A.
That's one of the trainers, Jay Topoleski.
17
Q.
And, right now, he's welcoming people to the
19
A.
Yes, he is.
20
Q.
And the whale that we see in the water, do
18
21
show?
you recognize that whale as Tilikum?
22
A.
Yes.
23
Q.
And that's Tilikum there at 145 of the video?
24
A.
I believe so.
25
Q.
And, Tilikum -- I guess I could turn up the
CARLIN ASSOCIATES
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237
sound, but Tilikum is making some vocalization there,
making some noises at that point.
we hear?
A.
I'm not sure on the tape.
Q.
And, now, at this side where this video is
That's Tilikum that
taken is from the Cove restaurant, that's the
perspective?
MS. GUNNIN:
JUDGE WELSCH:
Your Honor -Why don't you stop it when you're
10
asking the question.
Ask the question, he answers, and
11
turn the sound down.
One or the other.
12
13
MR. BLACK:
BY MR. BLACK:
15
Q.
At 228, is that Ms. Brancheau?
She's on the
scale at this point, right?
17
A.
Yes, she is.
18
Q.
And, she just fed him a fish, and then
19
signalled him to go away?
20
A.
Yes.
21
Q.
Tilikum was the only whale in this G pool
22
I'm
sorry.
14
16
Okay, fair enough, Your Honor.
during this event, right?
23
A.
As far as I know, yes.
24
Q.
Now, before I turn it up, I will ask you if
25
this is Tilikum that we're hearing making noises or
CARLIN ASSOCIATES
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238
vocalizations?
A.
I believe so.
Q.
And, that's right around time stamp
three minutes on the tape.
And, what we're looking at is people in the
Cove restaurant around -- what you described as around
the bend?
A.
Yes.
Q.
And, the diners there, they're the ones who
10
come to the show for the Dine With Shamu show?
11
A.
Yes.
12
Q.
This is what the Dine With Shamu show is for
14
A.
Yes, it is.
15
Q.
(405).
13
16
them?
And, that was Tilikum doing some
splashing with his tail?
17
A.
Yes, it is.
18
Q.
While this is going on, the trainer you
19
identified as Jay, he's on the stage there in this area
20
you identified in the photographs narrating the show?
21
A.
Yes, he is.
22
Q.
Talking about what the whale is doing and
23
about the whale?
24
A.
Exactly, yes.
25
Q.
And, again, that's Ms. Brancheau on the scale
CARLIN ASSOCIATES
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239
feeding Tilikum (447)?
A.
Yes, she is.
Q.
Do you know what Tilikum is doing there at
A.
Coming out of the water.
Q.
He came up out of the water.
506?
It wasn't a
trainer standing there that the whale was coming to?
A.
I didn't see any on the video.
Q.
And, here, now I've paused it at 528.
10
What
is Ms. Brancheau doing here?
11
A.
She's throwing fish at the whale.
12
Q.
She's standing near the edge of that scale?
13
A.
Yes, she is.
14
Q.
And, the area off of the edge of the scale,
15
do you know whether that's shallow or deep?
16
A.
In front of it?
17
Q.
Right in front of it.
18
A.
I'm not sure.
19
Q.
Well, we see the whale now coming up to the
20
edge.
Does that help you know whether it's a shallow
21
area or a deep area?
22
A.
23
scale sits on.
24
Q.
25
It might be a shallow area.
That's what the
Not the scale itself, but immediately in
front of the scale where the whale is swimming?
CARLIN ASSOCIATES
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240
A.
I'm not sure where the ledge comes out there.
Q.
And, here at 635, we see the whale has gone
around the pool.
Do you know was that Ms. Brancheau
there in the corner there now at 644?
A.
I believe so.
Q.
There was a third trainer there on that day,
right?
A.
Yes.
Q.
There was a spotter?
10
A.
Another one, yes.
11
Q.
And that was Linne Schaber?
12
A.
Yes, it was.
13
Q.
And, here at 702 or thereabouts, can you see
14
what Dawn is doing there; what Ms. Brancheau is doing
15
there?
16
A.
She was just feeding him fish.
17
Q.
We're seeing there Trainer Jay is still
18
narrating the show, talking to the guests?
19
A.
Yes.
20
Q.
I want you to watch this and tell me at 758,
21
is that Ms. Brancheau pouring water in the whale's
22
mouth?
23
A.
Yes, she is.
24
Q.
Or toward the whale's mouth.
25
And, she's
scooping up the water from the pool, right?
CARLIN ASSOCIATES
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241
A.
Yes.
Q.
She leans down several times and scoops up
water from the edge of the pool?
A.
Yes.
Q.
And, now, we see two trainers in this
picture, right?
A.
Yes.
Q.
And, the standing trainer, that's Ms.
Brancheau?
10
A.
Yes.
11
Q.
And, the kneeling trainer, that's Linne
12
Schaber?
13
A.
Yes.
14
Q.
Let me turn on the sound here.
I won't ask
15
you any questions while the sound is going.
16
we hear narrating. (927)
That's Jay
17
A.
Yes.
18
Q.
And, did you see Dawn there rubbing the
19
whale?
(956)
20
A.
Yes, I did.
21
Q.
And, that's something that you have seen her
22
do before?
23
A.
Yes.
24
Q.
Many times?
25
A.
Yes.
CARLIN ASSOCIATES
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242
Q.
It's not unusual?
A.
It's not unusual, no. (957)
Q.
Can you see her hand right there on top of
the whale's nose or rostrum?
(1029)
A.
Yes.
Q.
And, that wasn't unusual for her to touch the
whale?
A.
No.
Q.
And, she's feeding the whale some more?
10
A.
Yes, she is.
11
Q.
So, just there we saw her scooping up a
12
bucket of water and throwing it in the whale's pectoral?
13
A.
Yes.
14
MS. GUNNIN:
Judge, can he just ask.
It seems
15
like we're getting to a narration of this.
If he's
16
going to move for admission of the video, won't the
17
video speak for itself rather than have a narration
18
along the way?
19
happening.
I think it's clear from the video what's
20
JUDGE WELSCH:
21
MR. BLACK:
Mr. Black?
We're just trying to point out
22
things in the video that we think will be helpful to the
23
Court.
24
25
JUDGE WELSCH:
The objection is overruled.
on.
CARLIN ASSOCIATES
(216) 226-8157
Go
243
BY MR. BLACK:
Q.
And, there around time stamp 1158, we saw
Dawn leaning over and pulling something out of the
whale's mouth.
A.
6
7
Do you see that?
I believe so.
I'm watching what you're
watching.
Q.
And there at 1214 or thereabouts, you
definitely saw her pull something from the whale's
mouth?
10
A.
It was a fish.
11
Q.
We're seeing Dawn and she's on an area what's
12
called a dock?
13
A.
Yes.
14
Q.
And, she just leaned over the dock and
15
scooped some water off the dock and threw it at the
16
whale?
17
A.
Yes.
18
Q.
And, that's Ms. Brancheau and Ms. Schaber
19
going over that stairway we looked at in the picture
20
over the canal to, what did you call it, the F pool?
21
A.
Yes.
22
Q.
And, so when Jay was saying, "bye-bye," that
23
was the end of the speaking part of the show?
24
A.
Yes, it was.
25
Q.
And people are still -- some people are
CARLIN ASSOCIATES
(216) 226-8157
244
1
2
3
4
5
leaving, some people are staying around taking pictures?

A.
For about a minute.
That's all.
When the
show is over, they leave.

Q.
Well, somebody was around taking this video,
right?
A.
I believe so.
MR. BLACK:
Your Honor, not that it matters,
but there's no further sound that needs to be played at
this point.
So, I'll turn that off.
10
BY MR. BLACK:
11
Q.
12
And here at time stamp 1412 or so, we see
Dawn on the scale again leaning over Tilikum?
13
A.
Yes.
14
Q.
Do you know what she's putting in the whale's
15
mouth?
Is that chunks of gelatin or chunks of fish?
16
A.
Yes, I believe so.
17
Q.
Do you know whether it's gelatin or whether
18
it's fish?
19
A.
Gelatin.
I don't know.
20
Q.
And, here again, around time stamp 1458, we
21
see Dawn on the scale pouring water into the whale's
22
mouth.
23
A.
Yes.
24
Q.
And now, here, I've stopped it around 1503.
25
Dawn is on her knees -- excuse me, Ms. Brancheau is on
CARLIN ASSOCIATES
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245
her knees?
A.
Yes.
Q.
And, she's on the ledge area that you have
circled and pointed out on the photograph?
A.
Yes, she is.
Q.
This is just showing parts of the videotape
showing parts of the Cove restaurant.
(1525).
A.
Yes, it is.
Q.
And, now, I've stopped it at time stamp 1528
10
and Dawn is lying down here?
Excuse me, Ms. Brancheau.
11
A.
Yes, she is.
12
Q.
And whether she's on her knees or not, she's
13
clearly lying down.
Yes?
14
A.
Yes, I see that.
15
Q.
Do you recall seeing her in this type of
16
position before this date with the whale known as
17
Tilikum?
18
next to Tilikum in the pool?
19
20
A.
That is, she previously had been lying down
I believe so.
I have seen the show many
times.
21
Q.
This wasn't anything unusual?
22
A.
No.
23
Q.
And, this was the position that she was in
24
25
right before she was pulled into the water?

A.
I believe so.
CARLIN ASSOCIATES
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246
MR. BLACK:
We'll stop it there.
There is
another few seconds of video, Your Honor, but it doesn't
show any whale.
BY MR. BLACK:
Q.
So, this video shows the show and the tragic
ending on February 24, 2010, with Ms. Brancheau?
A.
Yes.
Q.
And, it fairly and accurately depicts the
show.
The video is a fair and accurate depiction?
10
A.
11
MR. BLACK:
12
13
Yes, it is.
We would offer this as C-4, Your
Honor.
MS. GUNNIN:
Judge, I would object because this
14
isn't something taken by Mr. Herrara.
15
that was submitted by an attendee of the show.
16
would object to the admission of the video.
17
18
JUDGE WELSCH:
identified it.
It's something
So, we
I think Mr. Herrara has
C-4 is admitted.
19
MR. BLACK:
20
21
22
BY MR. BLACK:
23
Q.
24
25
Mr. Herrara, just a few more questions.

After the end of this video and the position
where Dawn was when Ms. Brancheau was lying in the pool,
CARLIN ASSOCIATES
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247
that's where Tilikum grabbed her arm and pulled her in
the water?
A.
MR. BLACK:
JUDGE WELSCH:
6
7
8
9
10
I believe so, yes.

No further questions.
Ms. Gunnin, are you going to be
using the video for any reason?

MS. GUNNIN:
I'm not going to be using the
video.
JUDGE WELSCH:
Do you have a sleeve or
something?
11
MR. BLACK:
I do.
12
MS. GUNNIN:
Judge, can we take a ten-minute
13
14
15
16
break?
JUDGE WELSCH:
break.
Okay, let's take a ten-minute
Be back at ten minutes after.
Thank you.
17
18
19
20
JUDGE WELSCH:
Herrara, I'll remind you you're still under oath.
21
22
MS. GUNNIN:
23
---o0o---
24
CROSS-EXAMINATION
25
BY MS. GUNNIN:
CARLIN ASSOCIATES
(216) 226-8157
Mr.
248
1
2
Q.
Mr. Herrara, do you have Exhibit C-2 in front
of you?
A.
Yes.
Q.
If you could, could you mark on there where
you were standing at the time of the -- did you move
around, let me ask you that -- did you move around
during the Dine With Shamu show on February 24th?
A.
Yes, I did.
Q.
Where were you standing at the end of the
10
show when Ms. Brancheau was interacting with Tilikum,
11
and she was on the ledge after the show was over?
12
interaction, where would you have been standing?
13
A.
I'll circle it for you?
14
Q.
Yes.
15
JUDGE WELSCH:
16
That
Just draw an "X" and draw a line
off to the side and put your name.
17
THE WITNESS:
18
BY MS. GUNNIN:
19
Q.
(Witness Complies).
Mr. Herrara, you have marked -- and you're
20
looking at Exhibit C-2 -- you have marked an "X" that
21
looks like it's in the left-hand corner of the Dine With
22
Shamu pool?
23
A.
Yes, I did.
24
Q.
And, would that be in a diagonal opposite
25
orientation from where Ms. Brancheau would have been
CARLIN ASSOCIATES
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249
located?
A.
Yes, it is.
Q.
And, how many feet would you estimate that
distance would have been?
5
6
A.
I can estimate -- I don't know, 100 feet.
I'm guesstimating; I'm not sure.
Q.
Did you have a clear view of Ms. Brancheau?
A.
Somewhat.
Q.
Were you watching the interactions or were
10
you still working with the guests that were leaving the
11
area?
12
A.
I was doing both.
13
Q.
So, your attention wasn't totally focused on
14
Ms. Brancheau?
15
A.
At some point, it wasn't, right.
16
Q.
And from your vantage point, how could you
17
18
have been sure that Tilikum grabbed Ms. Brancheau's arm?

A.
From my angle, I saw her left arm go into the
19
water as the whale started descending into the water.
20
So, I'm not sure if he grabbed her arm or her hair, I
21
don't know, but I saw her arm do like a left hand signal
22
going in the water.
23
Q.
And, when does the show actually end on the
24
Dine With Shamu?
Is that after Mr. Topoleski would have
25
said, "thank you"?
CARLIN ASSOCIATES
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250
A.
Yes, the show is over.
Q.
You pointed out the stairway over the canal.
Is that ever an area that you would go?
A.
No.
Q.
Is that limited to trainers?
A.
Just the training only, yes.
Q.
I believe you testified about the
instructions to stay five feet away from the pool.
you ever have any cause to go closer than that to the
10
Do
pool?
11
A.
No, I don't.
12
Q.
And, do you have any training about how to
13
train whales?
14
A.
No, I haven't, no.
15
Q.
And, your primary function in the area is
16
just for the guests, to make sure the guests --
17
A.
As a security.
18
MR. BLACK:
Your Honor, I would object to
19
leading questions.
20
asking leading questions.
21
JUDGE WELSCH:
22
Overruled.
I just want to make sure we're not
Go ahead.
23
BY MS. GUNNIN:
24
Q.
25
This is Cross-Examination.
And just to clarify, the Cove, is it a
restaurant all the time or is that set up special for
CARLIN ASSOCIATES
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251
the guests?
A.
MS. GUNNIN:
4
5
No, it's a restaurant all the time, yes.

Thank you, Mr. Herrara.
all the questions, I have.

JUDGE WELSCH:
That's
Thank you.
Mr. Black, any Redirect?

---o0o---
BY MR. BLACK:
Q.
Mr. Herrara, do you recall giving a statement
10
in this case to the sheriff's department immediately
11
after the accident?
12
A.
Yes.
13
Q.
You gave that statement less than an hour or
14
so after the accident?
15
A.
Yes.
16
Q.
You gave them a written statement?
17
A.
Yes, I did.
18
Q.
That you signed under oath, swearing to the
19
truth of that statement, right?
20
A.
Yes, I did.
21
Q.
And, in that statement, you indicated that
22
you did observe the trainer, Dawn, hitting the whale
23
named Tilikum at the concrete area of the pool?
24
A.
Yes, I did.
25
Q.
And, it goes on:
CARLIN ASSOCIATES
"When the whale grabbed the
(216) 226-8157
252
trainer's arm and pulled her into the pool and would not
let go," right?
A.
Yes, I did.
Q.
And, that's the statement that you gave
5
6
7
immediately after the accident here, right?

A.
Yes, I did.
At the moment, I was
traumatized.
Q.
I'm sorry?
A.
At the moment, I was traumatized, so that's
10
what I wrote real quick because I was disturbed about
11
what happened.
12
Q.
I would imagine that it would be a very
13
shocking event, but there's nothing that you said in
14
that statement that wasn't true and accurate, is there?
15
JUDGE WELSCH:
You need an answer "yes" or "no."
16
THE WITNESS:
Oh, I'm sorry.
17
BY MR. BLACK:
18
Q.
No.
So, you didn't state in that statement it
19
might have been her arm, it might have been her hair
20
that she got pulled in by?
21
A.
No.
22
Q.
You just wrote her arm?
23
A.
Yes.
24
Q.
And, again, it's a sworn statement given to
25
the sheriffs in their investigation, right?
CARLIN ASSOCIATES
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253
A.
Yes.
Q.
You were a police officer for 20 years,
right?
A.
Yes.
Q.
So you know the importance of being accurate
in a sworn statement that you give to law enforcement
officials, right?
A.
Yes.
Q.
And, what you told them is Dawn was pulled
10
11
12
into the pool by her arm?

MS. GUNNIN:
Judge, he has covered that at
length.
13
JUDGE WELSCH:
Overruled.
Go ahead.
14
BY MR. BLACK:
15
Q.
That's what your --
16
A.
From the angle that I was across from the
17
pool, that's what I saw.
18
grabbed her hair or her arm, it looked like it was in
19
the whale's mouth.
20
Q.
Like I said, whether he
That's what I saw.
I understand that you may have some doubt
21
today based on things you have heard and other testimony
22
that you may have seen, right?
23
A.
I may have doubt, but that's what I saw.
24
Q.
You saw him grab her arm and pull her into
25
the pool by her arm?
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A.
I saw her arm by the whale as she was going
down, so I assumed that he grabbed her arm and took her
in the water.
Q.
And, that's what your statement to the
sheriffs --
A.
Yes.
Q.
It doesn't say anything about specific.
It
just says he grabbed her arm and pulled her into the
water?
10
11
A.
At that moment, that's what I saw; that's
what happened, yes.
12
MR. BLACK:
Thank you.
13
JUDGE WELSCH:
14
MR. BLACK:
15
JUDGE WELSCH:
Are you finished?

I am.
Thank you, Judge.
You're excused, sir.
I will
16
instruct you not to discuss your testimony with other
17
persons who may called later as witnesses in this case.
18
THE WITNESS:
19
JUDGE WELSCH:
Is Mr. Herrara excused as a
20
21
witness by the parties?

MR. BLACK:
There's no reason for the
22
Secretary not to.
So, he's excused by the Secretary.
23
MS. GUNNIN:
He's excused by the Respondent.
24
JUDGE WELSCH:
25
to go.
Thank you, sir.
You're excused
Thank you.
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1
2
3
4
5
6
(Witness Excused)
JUDGE WELSCH:
Mr. Black, does the Secretary
wish to call her next witness?

Your Honor, the
Secretary would call Ms. Linne Schaber.

JUDGE WELSCH:
We're going to take a short
recess until about 20 minutes 'til.
adjourned.
So we stand
Thank you.
10
11
JUDGE WELSCH:
12
Does the Secretary wish to call her next witness?
13
14
Yes, Your Honor.
Secretary calls Linne Schaber.
15
---o0o---
16
LINNE SCHABER,
17
18
19
The
JUDGE WELSCH:
Ma'am, for the record, would you
20
state your full name, spell your last name and state
21
22
THE WITNESS:
My name is Linne Schaber,
23
L-i-n-n-e, S-c-h-a-b-e-r.
24
Sea World Drive, Orlando, Florida 32821.
25
JUDGE WELSCH:
The Sea World address is 7007
That's your business address?
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THE WITNESS:
That's right.
JUDGE WELSCH:
Your witness, Ms. Howard-
Fishburne?
---o0o---
DIRECT EXAMINATION
BY MS. HOWARD-FISHBURNE:
Q.
Good morning, Ms. Schaber.
A.
Good morning.
10
Q.
We met back in June when I took your
11
deposition?
12
A.
That's correct.
13
Q.
And at the time you were a Senior Trainer 1?
14
A.
That's correct.
15
Q.
And, are you currently still a Senior Trainer
17
A.
Yes.
18
Q.
And, what is a Senior Trainer 1?
19
A.
It's a level in the department for animal
16
20
21
22
23
1?
training.
Q.
And, what are the responsibilities of a
Senior Trainer 1?
A.
I have various responsibilities for the
24
health and well being and training of the animals as
25
well as team responsibilities, upkeep of daily routine
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in the area, building relationships with the team,
developing different types of enrichment for the
animals.
4
5
JUDGE WELSCH:
When you're talking about
animals, are you talking about the killer whales?
THE WITNESS:
That's correct.
JUDGE WELSCH:
So, you only deal with the whales
8
9
at Shamu Stadium?
THE WITNESS:
Currently, yes.
10
JUDGE WELSCH:
Thank you.
11
12
Q.
13
14
15
16
17
As a Senior Trainer 1, you're considered to
be an experienced trainer?
A.
The Senior Trainer 1 is the highest level of
the nonmanagement positions, that's correct.

Q.
And, in that level, you actually mentor other
animal trainers at Shamu Stadium?
18
A.
19
JUDGE WELSCH:
20
21
I assist them, yes.
said "assist."
She asked about mentoring and you
Is there a difference in your mind?
THE WITNESS:
I can be there for any of the
22
staff at any of the learning of the animals and any of
23
the learning of the trainer.
24
25
Q.
But, are you also a part of mentoring and
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coaching the less experienced trainers?
A.
I am a coach of less experienced trainers,
Q.
As a coach, what are your responsibilities?
A.
As a coach, I'm there to see if they need any
yes.
assistance in accomplishing any of their protocols, any
of their reading, any of their tasks that they need to
learn in areas such as breakout, anything that's
husbandry in the area, any papers or learning that they
10
need to acquire to be able to learn more to become a
11
trainer.
12
I can also help them if they need any
13
assistance from the management team, if they need to ask
14
a question, or if they need information on how to talk
15
to the management team, I can assist them and coach
16
them.
17
18
19
20
21
Q.
When you say "assist them," you're talking
about like an associate trainer or an animal trainer?

A.
I can help and coach any trainers that are
part of my coaching team.

Q.
It would be at any level.
Just stepping back, I know I jumped there so
22
quickly, but you started as an animal trainer back in
23
1998; is that correct?
24
A.
That's correct.
25
Q.
And, your career began at Six Flags of Ohio?
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A.
Actually, it began in Sea World of Ohio.
Q.
Which then changed to Six Flags, correct?
A.
That's correct.
Q.
What animals were you working with in Ohio?
A.
I worked with sea lions, walruses, otters,
6
7
8
birds and dolphins.

Q.
And, you received training from Sea World to
perform those duties, correct?
A.
That's correct.
10
Q.
And, essentially, it was on-the-job training?
11
A.
Yes.
12
Q.
And, you were provided a manual and different
13
reading materials?
14
A.
Yes.
15
Q.
And, as a part of your training, you were
16
responsible for learning the Sea World protocol?
17
A.
That's correct.
18
Q.
And throughout your years while you were
19
working in Ohio, you became proficient to be able to
20
work with the sea lions and otters?
21
A.
Yes.
22
Q.
And, at some point, you transferred to Sea
23
24
25
World of Orlando.
A.
Was that in 2002?
I applied to become a trainer for Sea World
and I was hired by Sea World Orlando.
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Q.
So you were hired in 2002?
A.
Yes.
Q.
You went to sea lions and otters for your
first assignment?
A.
That's correct.
Q.
And, you worked with the same animals that
you were working with in Ohio, correct?
A.
The same species, yes.
Q.
The same species.
10
And, at some point, you
transferred to Shamu Stadium in 2005?
11
A.
That's correct.
12
Q.
When you transferred to Shamu, you had to
13
apply for that position?
14
A.
No.
15
Q.
You just had to request a transfer?
16
A.
No.
17
Q.
How did you get to Shamu Stadium?
18
A.
The management staff moved me to Shamu
19
Stadium.
20
Q.
21
22
23
24
25
And, when you began at Shamu, you went
through a training regimen; is that correct?

A.
I continued to learn the aspects of becoming
an animal trainer there.

Q.
When you transferred to Shamu, you had no
experience working with killer whales?
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A.
I had experience working with dolphins.
Q.
And so when you initially started out at
Shamu, did you start out as an associate trainer?
A.
I was transferred as a senior trainer.
Q.
So, you didn't have to go through those other
steps?
A.
I did not.
Q.
But, you did have to learn about the killer
whale species?
10
A.
That's correct.
11
Q.
And, as part of your training, again, you
12
were provided with a manual, a Shamu Stadium manual?
13
A.
That's correct.
14
Q.
And, when you started at Shamu, were you
15
given what's known as the Tili Talk?
16
A.
That's correct.
17
Q.
What is the Tili Talk?
18
A.
A member of management would speak to you in
19
regards to Tilikum, talking about his history of
20
trainers working with him in the water; that you need to
21
be aware of where he is in the Shamu Stadium area, which
22
pool he's in, you need to be safe and so forth.
23
Q.
And, they provide you with that information
24
because Tilikum had been involved in two prior deaths,
25
correct?
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A.
That's correct.
Q.
And, when they provided the Tili Talk to you,
they actually informed you of the two deaths that
Tilikum was involved in, correct?
A.
Correct.
Q.
And, they also informed you if you found
yourself in the pool with Tilikum, you might not
survive; is that correct?
A.
They explained it to us as he didn't have a
10
history of understanding of conditioning of having
11
trainers in the water with him.
12
basically the outcome of what would happen.
13
Q.
14
survive?
15
A.
16
survive, yes.
17
Q.
So, they did not know
They didn't know or that you might not
There is a possibility that you could not
When you started at Shamu Stadium, you also
18
received what's called an orientation checklist.
19
remember that?
20
A.
Yes.
21
Q.
And that checklist is suggested information
22
23
Do you
that an animal trainer should learn, correct?

A.
The orientation checklist that we had was
24
considered a task list which was to help any trainer
25
coming into the area to see and learn what was helpful
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1
2
3
for them to become proficient in the area.

Q.
And it contained three pages about the
various topics that an animal trainer should learn?
A.
Possibly, yes.
Q.
Some of that information was required and
other of that information was suggested, correct?
A.
Possibly, yes.
Q.
I'm going to show what has been marked --
This is Tab 26, Your
10
Honor, out of the exhibit book.
11
this for identification as C-5.
We're going to mark
12
13
14
15
Your Honor, may I
approach the witness?
16
JUDGE WELSCH:
17
18
Q.
Ms. Schaber, do you recognize that document?
19
A.
I do.
20
Q.
This is the orientation checklist that we
21
22
23
24
25
Yes.
were just discussing?

A.
This is at the time of the update, the day of
the talk, this was the one we were currently using.

Q.
Is it similar to what you received as an
animal trainer when you started at Shamu Stadium?
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1
2
3
4
A.
It's somewhat similar.
I wouldn't remember
exactly what it looked like in 2005.

Q.
You said you didn't know what was different;
is that what you said?
A.
I do not remember exactly what is different.
Q.
But, generally speaking, there were
recommended topics for you to go over; is that correct?
A.
Yes.
Q.
And, those recommended topics that a trainer
10
had to go over, that would have been the Tilikum safety
11
protocol?
12
13
14
A.
The safety protocol would be required for any
of the trainers to learn and read.

Q.
But, specifically, Sea World emphasized that
15
trainers had to learn about Tilikum in the Tili Talk,
16
correct?
17
A.
18
19
20
They provide written information.

Your Honor, we would move
to have C-5 admitted.

JUDGE WELSCH:
Let me ask, is this orientation
21
checklist in C-5 strictly for Tilikum, or is it for all
22
the whales?
23
THE WITNESS:
This is for the Shamu Stadium.
24
It's for any trainer that comes in to help them learn
25
the aspects of the area.
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JUDGE WELSCH:
I guess I'm somewhat confused on
the date.
I see two updates on there.
One update says
October 2009, and then over on the right-hand side,
there is an update of 11/30/2010.
or not this orientation checklist was in effect in
February of 2010?
Do you know whether
THE WITNESS:
It was in effect, that's correct.
JUDGE WELSCH:
That's the checklist that was
being used by the trainers?
10
THE WITNESS:
That's correct.
11
JUDGE WELSCH:
In February of 2010?
12
THE WITNESS:
Yes.
13
JUDGE WELSCH:
Any objection, Ms. Gunnin?
14
MS. GUNNIN:
15
JUDGE WELSCH:
16
No objection.
objection.
17
18
19
20
Q.
So, Ms. Schaber, this document is a document
21
that all the trainers would receive if they worked at
22
Shamu?
23
A.
Most likely, yes.
24
Q.
And, as a trainer completed a particular
25
task, they just checked it off?
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1
2
3
A.
Yes, or they could go over it with any member
of management or their coaches.

Q.
How is the information recorded?
How would
management know that an animal trainer had actually
completed this information?
A.
They could meet with the trainer.
Q.
But, there was no formalized mechanism where
Sea World actually knew whether or not the trainer
actually completed everything on the form; isn't that
10
correct?
11
A.
I'm not sure what your question is.
12
Q.
This is a form that all the trainers receive,
13
correct?
14
A.
Most likely, yes.
15
Q.
If you worked with Shamu, was there a
16
17
18
19
20
possibility that you might not receive this form?

A.
or not.
I'm not sure if all the trainers received it

That's not my responsibility.
Q.
As a Senior Trainer 1, you don't have
knowledge of that?
21
A.
Knowledge of what?
22
Q.
Knowledge of knowing whether or not animal
23
trainers when they work at Shamu actually receive the
24
checklist?
25
A.
I'm assuming that most of them receive it,
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yes.
2
3
I don't know if everyone did or not.

Q.
And, when they received them, they would
check off what information that they had completed?
A.
They could, yes.
Q.
At any time, were you required to turn this
document in to management to say, "Hey, I'm done"?
A.
JUDGE WELSCH:
this.
We were not required, no.

Let me make sure I understand
The trainer that receives the checklist, they're
10
the ones that check off whether or not they have
11
received the training; it's not some senior trainer that
12
checks it off?
13
THE WITNESS:
This is a guideline to help them.
14
We did have forms that were required for the trainers to
15
sign that stated that they did sign it and return those
16
to management.
17
So, this was more of a task list, and there were
18
separate forms of some of the manuals that says we did
19
read it, we understand it, and we did return those to
20
management.
21
JUDGE WELSCH:
When you refer to management,
22
what do you mean by "management"?
23
the curator for training.
24
25
THE WITNESS:
Is that Ms. Clark,
More specifically toward any
member of management at Shamu Stadium, we would be
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required to --
2
3
JUDGE WELSCH:
that means.
4
5
I'm not sure I understand what
THE WITNESS:
Our supervisors, assistant
supervisors, curator.
JUDGE WELSCH:
JUDGE WELSCH:
10
Q.
Thank you.
Are you done, Your Honor?
Yes, thank you.
Just so that we're clear, your testimony is
11
that the trainers actually -- if they receive this form,
12
they would keep this form, correct?
13
A.
They could keep this form, yes.
14
Q.
Now, you mentioned earlier that you were a
15
coach; is that correct?
16
A.
Yes.
17
Q.
And, were you assigned to a specific coaching
19
A.
Yes.
20
Q.
And, you testified that part of your duties
18
team?
21
as a coach is to assist less experienced trainers; is
22
that correct?
23
A.
That's correct.
24
Q.
And this could involve -- training aspects
25
are also an area of your responsibilities; is that
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correct?
A.
That's correct.
Q.
And, as a coach, a less experienced trainer
could come to you to receive training?
A.
They could, yes.
Q.
You were required as a coach to provide them
with whatever information you had about animal training;
is that correct?
A.
We could help them in any way.
10
Q.
And, as a part of helping them, you were
11
12
13
training them, correct?

A.
We could be one of numerous people that could
train them, yes.
14
Q.
15
process.
16
senior trainers; is that correct?
17
18
19
A.
And, that's a part of Sea World's training

More senior trainers helped train the less
More senior trainers shared their knowledge
with less experienced trainers, yes.

Q.
And, a part of sharing that knowledge is
20
helping the less experienced trainers become better
21
trainers, correct?
22
A.
That's correct.
23
Q.
In addition to getting the orientation
24
checklist when you start at Shamu, you're also required
25
as a part of that orientation to review the Tilikum
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2
3
4
chapter; isn't that correct?

A.
We're required to read any and all of our
manuals for the area and the department.

Q.
And, part of that training is to actually
review the chapter that's dedicated to Tilikum; isn't
that correct?
A.
We have to read the entire manual, yes.
Q.
And, in reading the entire manual, you review
the Tilikum chapter, correct?
10
A.
Correct.
11
Q.
And Tilikum has its own chapter; isn't that
12
correct?
13
A.
14
15
I believe there's a section on Tilikum in
that particular manual, yes.

JUDGE WELSCH:
When you're referring to the
16
manual, are you referring to the SOP that's in Exhibit
17
C-1 or something else?
18
19
get to that.
20
JUDGE WELSCH:
21
22
Q.
23
24
25
Your Honor, I'm about to
I'm sorry.
Referring to what has been previously
received as C-1, do you have C-1 in front of you, ma'am?

Can I approach, Your
Honor?
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JUDGE WELSCH:
Yes.
Q.
When I was mentioning the manual, the animal
training SOP, are you familiar with this document that's
marked as C-1?
A.
Yes.
Q.
Is this the document that you were referring
8
9
10
to when you said you were required to read this manual?

A.
All trainers are required to read this manual
every year.
11
Q.
Every year?
12
A.
That's correct.
13
Q.
And, when you first start at Shamu, you
14
definitely have to read it, correct?
15
A.
That's correct.
16
Q.
And contained within this manual is a chapter
17
specifically dedicated to Tilikum?
18
A.
19
correct.
20
Q.
21
I would have to look to see if that's
Would you turn with me to Page 1098 of Sea
World's -- is that contained in the manual?
22
A.
(Witness complies).
23
Q.
Does that begin Chapter 11?
24
A.
Yes.
25
Q.
And it's entitled "Tilikum"?
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A.
Yes.
Q.
And contained within that chapter, Tilikum
has general guidelines and emergency action plan; is
that correct?
A.
Yes.
Q.
And, there are also specific interaction
guidelines for Tilikum?
A.
That's what this states, yes.
Q.
And specific pool observation guidelines?
10
A.
That's what that says, yes.
11
Q.
And, there's also details about what level of
12
trainers can be approved to actually work with Tilikum;
13
is that correct?
14
A.
That's what that states, yes.
15
Q.
And you don't have any specific protocols for
16
any other whales; isn't that true?
17
A.
Not by name, yes.
18
Q.
There are no specific chapters contained in
19
this SOP manual for any the other whales at Sea World of
20
Orlando?
21
A.
22
JUDGE WELSCH:
23
24
25
the book.
Not specifically, no.

Sorry, I was pulling it out of
What page are you talking about?
Sea World 1098.
look, it's Bates stamped.
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JUDGE WELSCH:
Q.
A.
Q.
A.
Because he had never performed water work
He did not have the training for trainers in
the water, that's correct.
11
12
We considered him different because we did
with trainers, correct?
9
10
And Tilikum was a special whale because he
not get into the water with Tilikum.
7
8
I have it.
had never worked water work, correct?
5
6
Thank you.
Q.
And because he had been involved in a death;
is that correct?
13
A.
Yes.
14
Q.
When you started at Shamu Stadium, you were
15
also told that Tilikum was possessive of objects that
16
got in the water, correct?
17
18
A.
We were told that Tilikum displayed behavior
which he did not return objects in the his pool quickly.
19
Q.
And, those objects included humans, correct?
20
A.
They never said that specifically.
21
Q.
Because based on his history, you understood
22
it to mean humans, correct?
23
A.
It was basically saying that he had a
24
difficult time returning any object that was in his
25
pool.
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Q.
And, you didn't understand it to be humans?
A.
I don't understand your question.
Q.
You didn't understand that when you were told
that Tilikum had an issue returning objects, that that
also included people as well?
6
7
8
9
A.
I did understand that it could possibly mean
people, yes.
Q.
You were approved to do dry work interactions
with Tilikum, correct?
10
A.
11
Tilikum, yes.
12
Q.
13
work, correct?
14
A.
That's correct.
15
Q.
What was your understanding of dry work?
16
A.
It's working with any animal not in the
17
I was approved for the interactions with
And Sea World would consider that to be dry
water.
18
Q.
So, while you're not in the water, you can be
19
on the ledges?
20
A.
That's correct.
21
Q.
And you can also be on the scale?
22
A.
That's correct.
23
Q.
And those areas may have some water on it?
24
A.
That's correct.
25
Q.
But it would be below the knee?
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275
be considered dry work?
A.
That's correct.
Q.
And, prior to February 24th of 2010, you were
approved to interact with Tilikum to the point where you
could actually touch him, correct?
A.
That's correct.
Q.
And, prior to February 24th, you actually
performed interactions with Tilikum from the stage or
the pool edge; is that correct?
10
A.
Yes.
11
Q.
And prior to that same date, February 24th,
12
Ms. Brancheau was also approved to do dry work with
13
Tilikum, correct?
14
A.
Yes.
15
Q.
And, you had to receive special approval to
16
perform these activities with Tilikum; is that correct?
17
18
A.
management, yes.
19
20
Q.
But, there was special approval for any
animal trainer working with Tilikum; is that correct?
21
22
Approval to work with any animal came from
A.
The approval just came from management to
work with Tilikum.
23
Q.
So, if you were approved to work with one
24
particular whale, could you also work with Tilikum as
25
well?
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A.
It just depended on what management wanted.
Q.
You don't have to go through a specific
3
4
approval process to work with Tilikum?

A.
The approval process, I'm not sure --
basically, any trainer approved to work with any whale
came from management; whatever their process was.
Q.
And, that was the process -- in order to be
approved to work with Tilikum, you had to go through a
process of approval; is that correct?
10
You couldn't just
decide on your own as an animal trainer?
11
A.
That's correct.
Management decides.
12
Q.
And, management decides that the most
13
experienced trainers worked with Tilikum; is that
14
correct?
15
A.
They just made their decision as to who
16
worked with Tilikum.
17
experienced trainers, yes.
18
19
Q.
Most of the time it was
And, you were considered an experienced
strainer; is that correct?
20
A.
Yes.
21
Q.
And, you were approved to work in close
22
proximity with Tilikum despite having a Tili Talk which
23
said that Tilikum had problems with possessing; is that
24
correct?
25
A.
I'm sorry, could you repeat the question?
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Q.
Despite being told when you first started at
Shamu Stadium, that Tilikum was possessive of objects if
they fell into the water, you were approved to work in
very close proximity with Tilikum; is that correct?
5
6
A.
I was approved to work with Tilikum based on
the Shamu Stadium procedures, yes.
Q.
And, that approval allowed you to be as close
to the point where you could actually touch Tilikum; is
that correct?
10
11
12
13
A.
We had approval to use tactile with Tilikum,
Q.
When you say, "we," who are you talking
yes.
about?
14
A.
The approved trainers.
15
Q.
I was asking about you.
16
correct?
17
A.
I was approved, yes.
18
Q.
The approval that you had to actually engage
You were approved,
19
in performances with Tilikum, when you arrived at work,
20
you were assigned what performance you would actually be
21
involved in for that particular day?
22
23
24
25
A.
Management decided how the day was, based
upon the animals and trainers, yes.

Q.
So management would decide what trainers
would be involved in what particular performance?
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A.
That's correct.
Q.
And, you considered the interactions that you
had with Tilikum when there was actually an audience
where customers paid, that was a performance, correct?
A.
Yes.
Q.
And, when you came to work, there was
actually a board that actually listed out what trainers
were actually working with what whales?
A.
For individual shows, yes.
10
Q.
For individual show performances, animal
11
trainers would be listed on that board; is that correct?
12
A.
That's correct.
13
Q.
And, that board would include the animal's
14
name and it would also include what particular session
15
you would be involved in on that day; is that correct?
16
A.
It could, yes.
17
Q.
Would the board also include at what point
18
19
the whale would be performing in the show?

A.
Our show board included segments of the show
20
which then would include which animal would perform
21
certain segments.
22
Q.
So, prior to your going out to welcome the
23
guests, you actually knew at what point you would be
24
performing in a particular show?
25
A.
Most of the time, yes.
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Q.
And, do you understand a show performance to
be any time you're actually performing with an audience
when you're at Shamu Stadium?
A.
Yes, we have specific shows at Shamu Stadium.
Q.
So, if you were at work, practicing before
you actually had any guests, you wouldn't consider that
to be a show, would you?
8
9
10
11
12
A.
Not generally.
We could do interactions
before and after a specific show.
But, generally, our
shows have a start and end time.

Q.
I want to talk just briefly about the events
of February 24th.
You were working that day, correct?
13
A.
That's correct.
14
Q.
And, in fact, you worked one of the Believe
15
Shows on that day, correct?
16
A.
Yes.
17
Q.
Who were you working with on that day at the
18
Believe Show?
19
A.
I don't remember.
20
Q.
Was there a group of you, about 10 to 14
21
people for the Believe Show?
22
A.
Possibly, yes.
23
Q.
And, during that show, do you remember what
24
25
whale you were working with?

A.
I do not.
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Q.
Do you remember the fact that the whales were
not responding to the commands of the trainers at the
Believe Show?
A.
I do remember at one point in the show, we
did have to take a break from the actual planned segment
and continue on at some point to finish the show.
7
8
9
10
11
12
Q.
And, you had to do that because the whales
weren't responding, correct?

A.
There was some sort of incorrectness with the
whale at some point in the show.

Q.
Typically, that would be considered that the
whales were not under control?
13
A.
Yes.
14
Q.
And, you didn't resume that show, did you?
15
A.
I don't remember, quite honestly.
16
Q.
When a whale is not under control, you would
17
agree with me that that could be a potential safety
18
issue?
19
A.
I'm sorry, can you repeat the question?
20
Q.
If you're doing a performance and the whale
21
is not responding to your commands or your requests,
22
could that potentially be a safety issue?
23
A.
Not necessarily.
24
Q.
What does that mean, "not necessarily"?
25
A.
When you're talking about an animal not
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responding to commands, an animal could just not respond
to a particular command, or an animal could just not be
under a trainer's control.
Q.
If they're not under your control, then there
are no potential safety issues for a trainer that might
be interacting with the whale?
A.
Not necessarily.
not to be with the trainer.
unsafe situation.
10
Q.
An animal could just choose

It's not necessarily an
I'm not saying it would be a safety situation
11
at all times, but it could potentially be a safety issue
12
if an animal is not responding to the segment that you
13
have planned out?
14
A.
Not necessarily, no.
15
Q.
So, during this Believe Show when the killer
16
whales were not responding, they were sort of free
17
styling, correct; just swimming around the pool?
18
A.
I believe so.
19
Q.
That action by the killer whales is
20
considered in some respects a precursor by Sea World;
21
isn't that true?
22
23
24
25
A.
An animal swimming on its own is not
considered a precursor to aggression, no.

Q.
The fact that the animal is not doing what
you have asked them to do is not considered a possible
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precursor to some other action?
A.
What do you mean by "some other action"?
Q.
Tell me what your definition of a precursor
A.
It depends on what you're talking about.
4
5
6
is?
you talking precursors to aggression?
Q.
No, I'm just talking about precursor.
A.
Then, I don't know what you mean.
9
10
Are
precursor to what?
Q.
What is your definition of a precursor?
What
11
do you understand Sea World -- when Sea World uses the
12
word "precursor," what do you understand that to mean?
13
Do you only understand that to mean it's a precursor to
14
aggression?
15
16
17
A.
I understand a lot of the precursors to
aggression, yes.
Q.
So, if there's an action by a killer whale
18
where they are not actually responding to a command of
19
the animal trainer, that could not -- unless it
20
ultimately ends in aggression, then it's not a
21
precursor?
22
23
24
25
A.
Is that your testimony?

I'm sorry, I'm really having a hard time
understanding what you're trying to ask me.

Q.
I guess I was, again, just trying to ask you
what you understood "precursor" to mean.
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283
saying that a precursor has to be associated with
aggression?
A.
No.
When you say, "precursor," I don't
understand what you mean a precursor to.
precursor to aggression to mean there are signs that
could lead up to aggression.
that means there are signs that are supposed to lead up
to something, and I don't understand what you mean.
Q.
I understand
When you say, "precursor,"
Is it based on what you just said about signs
10
possibly leading up to aggression?
11
understanding that when a whale is not responding to
12
your commands or your requests, and they're swimming
13
around the pool area, could that be a precursor to
14
aggression?
15
A.
No.
16
Q.
Never?
17
A.
I didn't say never.
18
19
20
Is it your
I said it doesn't always
mean a precursor to aggression.

Q.
Right, but it could be a precursor to some
other behavior?
21
A.
That's correct.
22
Q.
That's what I was asking you.
23
24
25
After the Believe Show, you participated in

the Dine With Shamu show, correct?
A.
Yes.
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Q.
And, during the Dine With Shamu show, you
were a spotter; is that correct?
spotter?
A.
Yes.
Q.
And, as a spotter, you're responsible for
Initially, you were a
watching the interaction with the control trainer?
A.
Yes.
Q.
On this particular day, on February 24, 2010,
you were acting as Ms. Brancheau's spotter?
10
A.
During the Dine With Shamu, yes.
11
Q.
Part of the Dine With Shamu show, correct?
12
A.
Yes.
13
Q.
And, Ms. Brancheau was performing a session
14
with Tilikum?
15
A.
16
17
She was performing a Dine With Shamu
interaction with Tilikum, yes.

Q.
And, after she performed the Dine With Shamu
18
interaction, she also performed, I guess, an after show
19
session with Tilikum; is that correct?
20
21
A.
She was continuing to interact with Tilikum
after the Dine With Shamu.
22
Q.
Is that called a relate session?
23
A.
It could have been considered a relate
24
session, yes.
25
Q.
And during that interaction that Ms.
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Brancheau had with Tilikum, she was close enough to
touch Tilikum; is that correct?
A.
Yes.
Q.
And, at one point during the interaction, Ms.
Brancheau was actually lying on her belly as she
interacted with Tilikum; is that correct?
A.
That's correct.
Q.
And, that was an interaction that was
approved by Sea World; is that correct?
10
A.
Yes.
11
Q.
So, that could have been something that on
12
any given day, you could have been performing before
13
February 24, 2010; is that correct?
14
A.
Yes.
15
Q.
And, as Ms. Brancheau was performing the sort
16
of after-show of Dine With Shamu, you left the area to
17
go assist the VIP guests?
18
19
Yes, I had gone to the underwater viewing
Q.
And, Mr. Topoleski took over for you as the
area.
20
21
A.
spotter for Ms. Brancheau, correct?
22
A.
That's correct.
23
Q.
When you went to the underwater viewing area,
24
Ms. Brancheau was still interacting with Tilikum pool
25
side?
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A.
Q.
Yes.
Within a few minutes of your being down in
the viewing area, Tilikum pulled Ms. Brancheau into the
water; is that correct?
A.
That's what I was told, yes.
Q.
So, you didn't witness that?
A.
I saw Dawn go into the water.
Q.
And, the interactions that Ms. Brancheau was
engaged in with Tilikum was considered dry work?
10
A.
Yes.
11
Q.
Despite the fact that she was lying on her
12
belly in the water?
13
A.
It was considered dry work, yes.
14
Q.
Just a few more questions, Ms. Schaber.
15
You mentioned that the interaction that Ms.
16
Brancheau was performing was dry work.
17
distinction between or what is the difference between
18
dry work and water work?
19
be?
20
A.
What is the
What do you understand that to
Water work is performing any behaviors with
21
the animal that is in the pool with water above the
22
knee.
23
Q.
And dry work is below knee?
24
A.
That's correct.
25
Q.
And, when you're engaging in dry work, does
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that affect your ability, the trainer's ability to move
around?
A.
I don't know what you mean.
Q.
Well, why the distinction between water work
and dry work?
animal trainer is approved to engage in water work but
not dry work for a particular killer whale, what is the
distinction that Sea World is making between the two
activities?
10
A.
I guess I'm trying to figure out if an
Dry work is working with an animal in a show
11
along the stage or along the pool.
12
with them or asking them particular behaviors for a
13
show.
14
with them.
15
16
It's just performing
It's not performing any behaviors in the water
Q.
So there is more protection for an animal
trainer from a killer whale if they're doing dry work?
17
A.
I don't know what you mean by the question.
18
Q.
Well, if they're performing dry work, then
19
20
21
22
they're not in the pool with the killer whale, correct?

A.
They're not in the pool with the killer
whale, no.
Q.
And, are the hazards different when the
23
animal trainer is actually in the water than when
24
they're performing dry work?
25
A.
There could be.
It depends on what you mean
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1
2
3
4
by hazards.
Q.
What hazards -- what do you understand the
hazards to be if you're swimming with a killer whale?

A.
It's the same thing with dry.
You have to
just understand if that animal is performing correctly,
if the animal is in a calm state, or if there are signs
to precursors, or if the animal is in a frustrated
state.
9
10
11
Those would be hazards.
Q.
So, there is a hazard of being drowned if
you're actually swimming with the killer whale, correct?

A.
I suppose if the animal was frustrated enough
12
and had it and wanted to drown you, I suppose.
13
as there's a hazard -- I'm sorry, you will have to
14
repeat the question for me again.
15
Q.
16
I think you've answered the question.

I guess my next question is, what do you mean
17
by the animal being frustrated?
18
animal is frustrated?
19
A.
20
display.
21
Q.
22
23
As far
How would you know the
The response and the precursor that he could
And, what precursors in your mind would show
you that the animal was frustrated?

A.
They could have very large eyes, they could
24
do what we consider a chucking noise from their blow
25
hole, they could squirt water at you, they could have a
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very tight body.
aggression.
3
4
5
6
7
Q.
And, would killer whale vocalizing be a
precursor to aggression?
A.
It depends on the vocalization.
JUDGE WELSCH:
to aggression.
precursors?
11
12
They
vocalize in very calm states as well.
10
Those would be all precursors to
Somehow you went from frustration
Are frustration and aggression the same
THE WITNESS:
Frustration would lead to
aggression.
JUDGE WELSCH:
Because the first initial
13
question dealt with what is the precursor for
14
frustration, and you were giving them, and then somehow
15
it slipped into aggression, and I just want to make sure
16
I understand.
17
Your Honor, what I was
18
asking was, how would you know, and Ms. Schaber started
19
talking about precursors that she considered evidence of
20
some frustration of a whale.
21
22
JUDGE WELSCH:
Okay, but from frustration, you
slipped into talking about aggression too.
23
Anyway, the transcript will be what it is.
24
25
Q.
What I think we were talking about before we
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got into talking about frustration and aggression were
hazards while swimming in the water with the killer
whale, and we talked about the drowning hazard while a
killer whale is swimming or while an animal trainer was
swimming in the water with a killer whale.
There's also a drowning hazard with an animal
trainer interacting with the killer whale at the edge of
the pool; is that correct?
A.
I suppose if an animal took you into the
11
Q.
Like what occurred in this instance, correct?
12
A.
I'm sorry?
13
Q.
Like what occurred on February 24, 2010?
14
A.
Correct.
15
Q.
Is that, "yes"?
16
A.
Correct.
17
10
18
pool.
I don't have any further
questions for Ms. Schaber.
19
JUDGE WELSCH:
Ms. Gunnin?
20
MS. GUNNIN:
Judge, I know that mine may go
21
longer than 30 minutes.
22
to take the break now and then come back at 1:00, or
23
before then, or do you want me to begin and stop?
24
25
JUDGE WELSCH:
Do you think it would be better
Do you have some sense of how
long your Cross-Examination will take?
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1
2
3
4
5
6
7
8
MS. GUNNIN:
I think it may be about
45 minutes.
JUDGE WELSCH:
I'll leave it up to you.
Do you
want to do an early lunch or do you want to break first?

MS. GUNNIN:
I would prefer to take the break
now, Your Honor.

JUDGE WELSCH:
for lunch.
Okay, we stand adjourned to 12:45
Thank you.
I will instruct you not to discuss your testimony
10
with any person who may be called later as a witness in
11
this case.
12
---o0o---
13
14
15
16
17
18
19
20
21
22
23
24
25
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Afternoon Session
12:45 p.m.
JUDGE WELSCH:
Ms. Schaber, I'll remind you you're still under
oath.
MS. GUNNIN:
---o0o---
10
CROSS-EXAMINATION
11
BY MS. GUNNIN:
12
Q.
13
Good morning, Ms. Schaber.

Before the break, Ms. Howard-Fishburne asked
14
you some questions, and she asked you a bit about
15
training, and I want to see if we can talk a little bit
16
more about that, and you can let the Judge know more
17
about the training that's conducted at Sea World.
18
If you could, could you tell the Judge when
19
you first came to Shamu Stadium, what kind of training
20
did you receive?
21
week or set of training that you would have received?
22
A.
What would be sort of the first day,
Coming into the stadium, management staff as
23
well as a lot of the senior member trainers helped me
24
get very familiar with the area, some of the daily
25
routine, some of the required reading material, things
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like that, getting familiar with the animals, providing
a lot of information about them, to learn more about
them, different things like that, some of the goals,
some of my direction, some of the development that I
would be required to be able to attain as a senior
trainer there, things I needed to learn about the
animals, aspects of the shows, different types of
sessions and things like that.
Q.
Did you learn how to carry a bucket?
10
A.
I had had experience carrying buckets from
11
the other areas, but I did have to become familiar with
12
in the new stadium.
13
around those pools.
14
I was new to that area, walking
So, I had other trainers with me, helping me
15
get familiar with some of the pool ledges, the stairs,
16
and the back stage area to be able to get comfortable
17
with them and carry things, such as heavy buckets around
18
the pool edges.
19
Q.
Did you actually get a supervisor at some
20
level to check off or approve that you are allowed to
21
carry buckets in the area?
22
A.
Yes.
There are separate approvals for
23
walking across the pool ledges, and back stage by
24
yourself with a visual spotter as well as carrying heavy
25
objects up a number of stairs to the back stage area
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into the pool area.
Q.
And, I believe you were shown something that
was marked Exhibit C-5.
checklist that you have at Shamu Stadium?
5
6
A.
trainers.
7
8
Q.
It is not.
Is that the only approval
This is just a task list to help
It is not an approval list.

Okay, and if you could, tell the Judge what
is an approval list?
A.
An approval list has various procedures on
10
there that you have to obtain approval from management
11
to be able to perform, such as walking -- at the time
12
walking across gates, walking backstage by yourself,
13
carrying buckets into the new pool area, operating
14
gates, observing the whales the guests have access to
15
the pools; things like that.
16
17
Q.
How about this spotter approval?
Is that
part of the approval list?
18
A.
You had to be approved to become a whale
19
spotter, yes.
20
Q.
Are there different kinds of spotters?
21
A.
Yes.
We start with very basics.
Your first
22
approval would be spotting animals as they are free
23
swimming in the pools while guests are able to observe
24
them before a show in our Dine With Shamu interaction
25
pool.
You also then had to gain approval from our
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management staff to be able to spot a particular trainer
interacting with the animals; things like that.
3
4
5
Q.
And, how about Tilikum?
Was that a different
approval process as well?

A.
It was.
You had to be approved by a member
of management to be a spotter for a trainer who was
working Tilikum.
8
9
Q.
And, when you came to Shamu Stadium, you had
already been an animal trainer for some time, correct?
10
A.
A few years, yes.
11
Q.
And, you worked at the Sea Lion and Otter
12
Stadium?
13
A.
Before Shamu Stadium, yes.
14
Q.
What did you do at Sea Lion and Otter?
15
A.
I had worked with all the animals at that
16
stadium and got a chance to perform in the shows,
17
training all the different types of animals, worked with
18
a team, helped with the staff running the aspects of
19
training for sea lions and otters there.
20
Q.
When you came over to Shamu Stadium, if you
21
could explain to the Judge how did that work?
22
you come to work at Shamu Stadium?
23
A.
How did
I had experience working with so many
24
different animals, and the Believe Show was to open the
25
following year, so I was able to have an opportunity
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given to me by the management staff to start at that
stadium to help learn the animals, learn some of their
behaviors to open and put in the new Believe Show.
Q.
When you came to Shamu Stadium, how did you
progress in terms of being able to ultimately work with
Tilikum, and how were you able to ultimately do work
that you were approved to do, full water work, correct?
A.
Yes.
Q.
If you could walk the Judge through how that
10
11
starts with a new person at Shamu Stadium?

A.
As a brand new person who had no prior
12
experience, you would spend a quite a few years learning
13
the basic principles of training all of our animals as
14
well as learning the animals.
15
I had some previous knowledge of principles
16
and how to train and work with animals, so my
17
responsibility was to understand the animals, to learn
18
more about them, what their likes and dislikes were,
19
what their behaviors were or what they were learning and
20
how to be able to continue to teach them and have some
21
time in with the area and learning all those animals.
22
Q.
How long did it take you as a more senior
23
trainer coming into Shamu Stadium, how long did it take
24
you to work through the approval process?
25
A.
It depended.
It took quite a while for
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myself to be approved to be a spotter for any of the
Tilikum trainers that were approved to work him.
took me almost six months with my prior experience to be
able to start at the very beginning stages of water
work.
It
Within a few months, I was able to perform
with certain animals, not all of them but with certain
animals in the show on stage just asking them behaviors
outside of the water, and then the more experience I
10
11
gained, the more time I had in, I was able to do more.

Q.
What is the first level that a trainer would
12
have with a killer whale?
What would be the first type
13
of experience?
14
A.
In working with a killer whale?
15
Q.
Yes.
16
A.
We would consider it nontactile interactions.
17
So, it would be interactions that you weren't touching
18
the animal.
19
a wall or ledge could be between you and the animal, and
20
you could work very basic behaviors, such as asking them
21
for a fluke present or a type of wave; things like that
22
that would be the very beginning stages to working an
23
animal.
You would be some distance from them, maybe
24
Q.
What would be the next step?
25
A.
You could then work the animal in a closer
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proximity where you are able to use tactile and do the
same type of behaviors in a closer proximity with them.
Q.
And, how long would it take to go through
that process of going from being the dry nontactile to
being a dry tactile trainer?
A.
It could take a little bit of time. It
depended on how experienced the trainer was.
that was a little less experienced in working animals
would take longer.
10
A trainer
It also depended upon what the trainer
11
displays.
12
animal, if they understood all the aspects of the
13
training, if they were taking direction and notes from
14
the management team correctly and they were displaying
15
that they had a very sharp understanding of the training
16
aspects as well as an understanding of those animals,
17
then they could progress.
18
19
Q.
If they had done behaviors correctly with the
Who would decide if they were ready to
progress?
20
A.
The management staff would.
21
Q.
Is there any kind of approval process or
22
23
committee that would look at that?

A.
We had an approval form that had all those
24
different levels of the nontactile interactions,
25
spotting, guest spotting and all those levels were
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sequential, and that came from our management staff.
Q.
Do you know what the behavior review
committee is?
A.
I do, yes.
Q.
What do they do?
A.
The behavior review committee would review
and approve individual trainers for different
interactions such as the trainer being able to work an
animal for guest interactions, such as a guest picture,
10
as well as the review committee could approve a trainer
11
to perform stages of water work with the killer whale,
12
as well as the committee approved individual animals for
13
certain levels.
14
able to interact with guests and so forth.
15
Q.
The animal had to have approval to be
So, there's a two-prong process.
You've got
16
the animals being approved for certain behaviors as well
17
as the trainers being approved to perform those
18
behaviors with the trainers?
19
A.
That's correct.
20
Q.
Do you know who would have been on the
21
behavior review committee and in the February 2002 time
22
frame?
23
JUDGE WELSCH:
2002?
24
MS. GUNNIN:
2010.
25
THE WITNESS:
I believe it would be members of
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our salary management staff.
BY MS. GUNNIN:
Q.
Shamu Stadium?
A.
Jenny Mairot.
Q.
And, has she remained your supervisor?
A.
Yes.
Q.
In February of 2010 who were the supervisors
And, who was your supervisor when you came to
at Shamu Stadium?
10
A.
It was Jenny and Dawn.
11
Q.
Brancheau?
12
A.
That's correct.
13
Q.
And below the supervisor level, what is the
14
next level?
15
A.
There are assistant supervisors.
16
Q.
And, how many assistant supervisors in the
17
February 2010 time frame were there?
18
A.
I'm not sure.
Between three and four.
19
Q.
Can you recall who those would have been?
20
A.
At the time, it would have been Kristin
21
McMahon-Van Oss, David Patrick and I believe Brian
22
McFadden.
23
24
25
Q.
And below the assistant supervisors, what
would be the next level?

A.
They would be considered Senior 1's.
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1
2
Q.
And that was the level you were in on
February 2010, a Senior Trainer 1?
A.
Yes.
Q.
And below Senior Trainer 1, what would be the
next level?
A.
A senior level.
Q.
And below senior level?
A.
It was considered a trainer level.
Q.
And below trainer level?
10
A.
It was considered an associate level.
11
Q.
Is that's the very first stage of animal
12
13
trainer is an associate trainer?

A.
Yes.
14
(Whereupon, Respondent's Exhibits R-1 and R-2
15
were marked for identification and entered into
16
the record)
17
BY MS. GUNNIN:
18
Q.
Ms. Schaber, I've just handed you two sets of
19
documents.
20
I'm going to ask if you can identify what is R-1?
21
22
A.
One is marked R-1 and one is marked R-2, and
It's an animal training reference manual for
Sea World.
23
Q.
And what does that manual apply to?
24
A.
This manual applies to all animal trainers in
25
the entire department.
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Q.
So that would include Shamu Stadium?
A.
It would.
Q.
As part of the manuals that you review and
look at, is that one of the manuals you would look at as
a trainer?
A.
Yes.
Q.
What is R-2?
A.
This is area manual to Shamu Stadium
specifically.
10
11
12
Q.
And, that would be one just for Shamu Stadium
trainers?
A.
Yes, if you were currently working at the
13
stadium, you would be able to read and review that
14
manual.
15
Q.
So, you were earlier asked about Exhibit C-1
16
that's in front of you.
17
manual that you would review, would R-1 and R-2 be part
18
of the manual as well as C-1?
19
A.
20
MS. GUNNIN:
When you were talking about the
Yes.
Judge, I'm going to move for the
21
admission of R-1 and R-2, but I'm going to verify with
22
Counsel that I've got complete copies compared to what
23
they have.
24
JUDGE WELSCH:
Any objection to R-1 and R-2?
25
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1
2
3
extent that we can verify the page numbers in R-2.

JUDGE WELSCH:
Okay, R-1 and R-2 are admitted
without objection.
(Whereupon, Respondent's Exhibits R-1 and R-2,
previously marked, were admitted into evidence)
BY MS. GUNNIN:
Q.
Ms. Schaber, is there any other kind of list
that you also sign off on?
talked about an approval list, but do you have any other
10
11
There is the checklist, you
lists that you would sign off on?

A.
Yes, we had a signature page that listed
12
manuals, individual manuals as well as some observation
13
sheets, some safety protocol procedures and videos we
14
were supposed to observe and do, and if we had performed
15
all those and understood all the procedures, we then
16
signed the page.
17
Q.
Who would you give that to?
18
A.
Our management staff.
19
Q.
Specifically, who would you give that to?
20
A.
I could have given it to my supervisor,
21
22
Jenny.
Q.
And, Jenny Mairot is your supervisor and has
23
been your supervisor.
24
you had read through this manual?
25
A.
Ms. Mairot, would she ensure that
She would, yes.
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Q.
Do you recall who was your coach when you
arrived at Shamu Stadium that helped walk you through
the process?
A.
I had a couple of coaches.
They would have
been some of the senior trainers that were above me at
the time.
there would have been a former trainer, Lindsey Schumm,
some of the more experienced senior trainers and Senior
1's helped coach me when I entered the Stadium.
Dave Patrick would have been one of them,
10
Q.
And, do you still have a coach today?
11
A.
The assistant supervisor would have been my
12
coach.
13
Q.
14
as your coach?
15
A.
One of them is Kristin Van Oss.
16
Q.
Is there another one?
17
A.
Yes, I believe it was Dave Patrick.
18
Q.
And, they would have also been your coaches
19
And your assistant supervisor.
Who else acts
at the time of February 2010?
20
A.
Yes.
21
Q.
I was asking you about how you began as a
22
trainer, and you started off with the nontactile, and
23
then we got to dry tactile.
24
25
What would be the next step in that process?

When you come to Shamu Stadium, what would be the next
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level of approval?
A.
When you were comfortable and understood the
aspects of working with animals in a nontactile
situation as well as tactile, different class of
interactions, you could then begin the approval process
and gain approval for the very beginning stages of water
work with the killer whales.
8
9
Q.
How would you get approved to work with the
different killer whales at the stadium?
10
A.
The management team decided which trainers
11
could work with individual whales and how many animals.
12
If you had more experience, you could work maybe with
13
some of the younger whales that were still learning a
14
lot.
15
understanding and had great relationships with the
16
trainers to be able to have new less experienced
17
trainers working with them so that management staff
18
helped figure that out and decided what those
19
combinations would be.
20
21
Q.
A.
At that time I had an opportunity to work
with all of the killer whales at the stadium.
24
25
How many of the killer whales did you work
with in February of 2010?
22
23
The more experienced killer whales had a lot of
Q.
And, you had worked up to being on Tilikum's
team?
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A.
I did, yes.
Q.
Do you recall when you would have started
3
4
working with Tilikum?

A.
I believe after I had already been at the
stadium for almost a year, I first began to be on
Tilikum's nontactile team, and once I had worked with
him on that team and that approval for some time, a few
months, I was able to gain approval to be part of his
tactile team.
10
11
Q.
Is the tactile team approval for Tilikum the
top level approval that you can get with Tilikum?
12
A.
Yes, I believe so.
13
Q.
You were asked about Tilikum having a
14
behavior of possessiveness, and do you recall ever
15
working with Tilikum with toys that would be thrown into
16
the pool for him to retrieve?
17
A.
Yes.
18
Q.
Could you explain what that would have
19
20
involved?
A.
We were trying to condition or teach Tilikum
21
that there was some reward and reinforcement available
22
for returning any objects that were in his pool.
23
started out with different types of toys, different
24
types of objects that he could interact with in his
25
pool, enrichment and enjoying what we were teaching him
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and asking him to return those objects, and he could
have various reinforcement rewards for doing that.
3
4
Q.
When you say "reinforcement rewards," what do
you mean by that?
A.
a lot of them.
to ice cubes or different types of hose spray, maybe
along his back and different things like that, we would
give him those various types of reinforcers.
10
Q.
The types of fish that he would eat would be

Tilikum also tended to be very receptive
So, if he would perform the behavior
11
correctly and bring the toy back to you, then you would
12
do some reinforcement, depending upon what you decided
13
as the trainer at the time?
14
A.
Yes, if his behavior showed that he tended to
15
enjoy it and he continued to stay with us spraying the
16
hose and things like that.
17
Q.
And, was he successful at that?
Would you
18
say he performed that behavior well of retrieving the
19
toys?
20
A.
Yes, he was very consistent with it.
21
Q.
And, there's a video that I know you haven't
22
seen today, but you have seen in your deposition, and
23
it's the Dine With Shamu show on February 24th.
24
25
In that show, do you recall Tilikum

retrieving a fish?
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A.
Yes, I believe Dawn had tossed a fish into
the pool and asked him to bring the fish back, and I
believe he performed that successfully.
Q.
Is that another behavior that you had worked
with Tilikum on, the throwing of the fish and bringing
it back?
A.
Yes, that certain trainers had asked him
previously.
Q.
And, in your experience of performing that
10
behavior with him, was he predictable in what he would
11
do?
12
A.
For the most part, yes.
13
Q.
When you say, "for the most part," what do
14
15
16
17
18
you mean?
A.
Sometimes he would eat the fish, but for the
most part, he was pretty good at it.

Q.
Would you say more often he would bring the
fish back than not?
19
A.
Yes.
20
Q.
Did you work on training that behavior?
21
A.
I worked on maintaining the behavior.
22
Q.
Had it been a behavior that was trained prior
23
to your working with Tilikum?
24
A.
Yes, it had, yes.
25
Q.
You still work with Tilikum today, correct?
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A.
I do, yes.
Q.
Did you feel comfortable working with Tilikum
back in February of 2010?
A.
I did, yes.
Q.
And, do you feel comfortable working with
Tilikum today?
A.
I do, yes.
Q.
If you didn't feel comfortable working with
Tilikum, what would you do?
10
11
A.
I would talk to management staff and share
with them some concerns that I had.
12
Q.
Do you think you would be required to
13
continue working with Tilikum when you told them that
14
you were uncomfortable working with Tilikum?
15
A.
No, not at all.
16
Q.
You were also asked about the show and
17
performance.
18
behaviors that are performed in a show versus the
19
behaviors that are performed for husbandry sessions or
20
related sessions or exercise sessions, other sessions
21
that are done outside of the show?
22
A.
Is there any overlapping between the
Absolutely.
I talked specifically of the
23
husbandry behavior, a behavior that we would call a tail
24
fluke present so that various staff could do a blood
25
draw.
That's a behavior that we could ask a killer
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whale in the show, it's a very important behavior for
some of the younger killer whales to learn.
ask them to roll over and present their tails and then
rub their tails.
We would
So, a lot of our relationship sessions were
touching along their back or their dorsal fin or their
pectoral flippers.
the show.
our exercising sessions could entail numerous jumps from
We could also incorporate that into
I said specifically of exercise.
A lot of
10
the animals, and we can incorporate all those types of
11
jumps into the shows as well.
12
Q.
And, in terms of doing the fluke present,
13
what's the importance of doing that repetitively and
14
using opportunities in the show to work that behavior?
15
A.
In the show setting, it's a very comfortable
16
environment for the killer whales.
There's a lot of
17
reinforcement in shows, there's a lot of history of
18
animals having a very positive history and very positive
19
reinforcement in the shows so that they understand
20
there's a lot of opportunity for reinforcement.
21
It's good practice to practice important
22
behaviors such as voluntary blood draws in settings
23
where there's a lot of noise and music and hand clapping
24
and things like that so the animal is comfortable in a
25
loud environment just as well as it is in a quiet
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environment.
Q.
killer whales?
A.
Do you perform husbandry procedures on the
I can ask different types of husbandry
behaviors from the killer whale.
Q.
Give me an example of that.
A.
The blood draw is one.
We could do what we
consider blow plate culture so we would ask the killer
whale to blow forcefully from their blow hole.
We could
10
also perform different types of things such as an
11
ultrasound on a killer whale.
12
of behaviors.
13
Q.
14
There's different types
And, those are all procedures that you train
the killer whale to voluntarily present for, correct?
15
A.
Yes.
16
Q.
And the blood draw in particular, do the
17
trainers draw the blood?
18
A.
Our veterinarian staff would do the draw.
19
Q.
Is it necessary to be there while the vets
20
21
are performing that procedure?

A.
Yes, there's a trainer that's working with
22
the killer whale and asking for the voluntary fluke
23
present, and the veterinarian staff also has a trainer
24
present to spot them if they need any assistance for
25
things like that.
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1
2
Q.
Are the trainers always present when the vets
are doing medical procedures?
A.
Yes.
Q.
When the medical procedures are being
performed on the killer whales, who is maintaining the
control of the killer whales?
A.
The control trainers.
Q.
With regard to Tilikum, could you tell the
9
10
Judge, what is the protocol about spotting for Tilikum?

How would a spotter's function work?
11
A.
Spotting another trainer interacting with
12
Tilikum?
13
Q.
Yes.
14
A.
You have to have an understanding of Tilikum,
15
what his behavior repertoire was like, some of the
16
things that he -- his likes and dislikes.
17
gain approval from the management to become a spotter,
18
and then your responsibility was to observe the trainers
19
working with Tilikum, asking different types of
20
behaviors.
21
You have to
When they are in the pool, if they needed any
22
assistance with different types of tools, such as
23
additional reinforcement, target poles; things like
24
that.
25
Q.
What is a target pole?
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A.
animals.
hands.
end of it with which we can teach the animal to follow
and touch.
hand so we can ask the animal to touch or follow and
show them that's exactly what we want and follow that up
with some reinforcement.
9
10
It's a pole that we can use to teach the

We would consider it an extension of our
It's a pole with a different type of buoy on the
Q.
We would consider it an extension of our
Do you begin the training process with your
hand and then you train to the target pole?
11
A.
You can.
You can also teach the younger
12
calves to be comfortable around a target pole and teach
13
them just to follow that or touch that, but the hands
14
are sometimes easier, since we work so closely with
15
them.
16
Q.
Now, you were asked about precursor, and I
17
think that was confusing to you, and I want to give you
18
an opportunity to explain to the Judge what you mean by
19
precursor?
20
A.
Well, if you're talking about precursors to
21
behavior, it can mean different types of behavior.
22
lot of times -- we're observing the killer whale's
23
behavior all the time, whether they're swimming on their
24
own or whether they're working with us, working with
25
different types of trainers.
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So, the precursors to us would be signs or
behaviors that an animal is performing that could lead
up to a different behavior, such as if you're walking
next to the pool with the killer whale, and one of the
whales is looking at you, and that could be a precursor
to the animal coming all the way over to the pool to be
next to you.
8
9
They're looking to be with you.
They're
looking to see if you are going to work with them, ask
10
them anything or continue on with a relationship session
11
with them; things like that.
12
types of precursors.
13
So, those can be different
And, there can be precursors to an animal
14
taking off very excitedly from a behavior could lead to
15
a very super high exciting jump, so that they're very
16
excited about performing that particular behavior.
17
the behavior before of them paying attention to you and
18
taking off in a very enthusiastic way could lead up to a
19
behavior of a fantastic jump.
20
21
22
23
24
25
Q.
So,
A precursor doesn't mean the next step is
aggression?
A.
No, just precursors to aggression could
potentially lead up to aggression.

Q.
I think you were asked about whether or not
responding to a command if you would consider that a
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1
2
precursor to aggression.
A.
We do not consider it always a precursor to
aggression.
trainer.
own or just choosing to be with another animal as
opposed so us.
Q.
8
9
10
11
The animal just chooses not to be with the
They can just choose to be swimming on their
And, would that mean that anything aggressive
is going to occur after that?

A.
It doesn't mean that it's going to be
aggressive, no.
Q.
You also testified about doing interactions
12
before and after the shows, and if you could just
13
describe what that means to you when you say they're
14
doing interactions?
15
A.
We would have certain set times for our shows
16
to perform any show.
We could go out onto stage while
17
the audience is coming in before a show, and we could
18
ask different behaviors from the animals such as a new
19
behavior they're learning for a show, numerous types of
20
husbandry behaviors.
21
We would just spend some time with them, and
22
those different types of sessions or different types of
23
interactions we do with the killer whales throughout the
24
day before a show, we could do it hours before the show,
25
we could do it right after a show.
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that had ended, and we said good-bye to the audience,
the trainers could then spend time having a great play
time with the animals and throwing a bunch of toys in, a
lot of them tend to really enjoy ice, we could go to the
higher part of the set and toss fish to all the animals
down below and play with them in that sense.
be a different type of interaction after a show that we
could do with the killer whales.
9
10
Q.
That would
What would be the purpose of doing those
types of interactions?
11
A.
It gives a lot of variety in the animal's
12
day, it provides a lot of enrichment, gives a lot of
13
balance in their life of what they're learning, of what
14
they're given, things that they can grow with.
15
there's a lot of variability, a lot of growth for them
16
with those different types of sessions.
17
18
Q.
So,
And, those kinds of sessions would not be
part of the actual show at the stadium, correct?
19
A.
You could do smaller forms within a show.
If
20
there's a nonperforming, a certain segment in the show
21
for the audience, a trainer could be with the mother's
22
calf off to the side and having a fun play time with
23
them.
24
So, we could have a small playing session
25
while playing interactions with that calf during the
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show.
in one of the behind the stage areas so we could be
working a new fluke present with a killer whale behind
the scenes during a show while other killer whales are
performing some additional behaviors for the audience.
So, we can have different types of interactions
Q.
You were asked about whether if a performance
of the killer whale was not under control, was that a
potential safety issue, and you said not necessarily.
Can you explain that a little bit more about
10
what you mean?
11
A.
Well, it could happen every so often during
12
shows as well as during the other various interactions
13
we have with killer whales that at times those animals
14
cannot be under control the of the trainer which would
15
mean they're just not with the trainer so that they're
16
choosing to perform their own behaviors that the trainer
17
didn't ask.
18
There could be socialness among the killer
19
whales.
20
they could go check out some algae in the pool.
21
are just different types of things they're choosing to
22
go see and observe other than being under control with
23
the trainer.
24
25
They could go check out something at the glass,

There
At times they could come back to the trainer

and continue on with the session, continue on with the
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show, or at times the trainer can just give the animal a
break and just come back later.
3
4
Q.
Not being under control doesn't mean a bad
thing is going to happen?
A.
No, it does not.
Q.
After the show was over on February 24th,
7
8
9
when did you go down to the underwater viewing area?

A.
I believe the Dine With Shamu interaction was
pretty close to the end of the Believe Show.
Generally,
10
they're about 15 or 20 minutes after the Believe Show
11
ended, so the interaction could have been anywhere from
12
15 to 20 minutes for the audience that had purchased the
13
Dine With Shamu package, and so that was probably
14
roughly within the hour after the Believe Show had
15
ended.
16
Once the Dine With Shamu interaction is over
17
for the guests, we could go on with different types of
18
things, and at the time in February we had photo
19
opportunities for some guests down at underwater viewing
20
where we would ask the whales to go down to the windows
21
to sit in front of the window while the guests had an
22
opportunity to take some pictures with them.
23
Q.
And, the underwater viewing area, is it on
24
the same viewing level as the area where the Dine with
25
Shamu interaction would have occurred?
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A.
It's below.
Q.
So, you couldn't see the interaction that Ms.
3
4
Brancheau was having with Tilikum?

A.
I did not.
I could see Tilikum's body in the
water from the window, but they were above me, and
there's a roof covering the underwater viewing area.
Q.
And, you make a distinction between what you
call the Believe Show, and then you called the Dine With
Shamu an interaction.
10
11
A.
What's the distinction?
It's a less formal show.
It's a really small
show, with a small interaction for the guests there.
12
The Believe Show had certain sequences, set
13
sequences that had a flow, you know, set music, so that
14
there was a beginning, a middle and end, a story line.
15
Our Dine With Shamu program in that show, the
16
interaction, we could do all kinds of things in that
17
particular show.
18
killer whales, we could teach a new behavior during that
19
show area, the interactions with Dine With Shamu for the
20
guests.
21
different types of things that we did with them during
22
the Dine With Shamu program.
23
24
25
Q.
We could do exercise sessions with the
So, there was a lot of the variability in the
So that would be more like letting the guests
see the back area interactions?

A.
It was supposed to be more like a behind the
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1
2
scenes type of dining opportunity for the guests.

Q.
You were asked about water work and dry work,
and are those two distinctions only part of a show or
would that apply any time working with killer whales?
5
6
7
8
9
A.
It would apply any time working with killer
whales.
Q.
In the Dine With Shamu show on
February 24th, do you recall that Tilikum vocalized?

A.
Tilikum was asked for different types of
10
vocal behaviors that I believe he performed correctly
11
during the Dine With Shamu.
12
13
14
Q.
Do you recall was it yourself or was it Ms.
Brancheau that asked for those?

A.
I believe there's a possibility that it was
15
both of us.
16
believe there were different types of vocalization that
17
Tilikum had done during that time.
18
19
Q.
to do.
I know that I had asked for one, and I
So, that was something you had asked for him
He wasn't doing it on his own?
20
A.
I don't think it was on his own.
I believe
21
it was asked.
22
Q.
23
vocalization?
24
A.
It is, yes.
25
Q.
When you asked for the vocalization by
And, is that also a behavior you train, the
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Tilikum, do you recall where you were standing at the
Dine With Shamu area?
A.
I believe I was across the pool, close to the
guest area.
had some ropes and tie-ons there in a small walkway area
between the rocks that surrounded the Dine With Shamu
pool.
8
9
The guest area had their dining area which
And I had been walking around there and had

an opportunity for Tilikum to be there over the rocks
10
behind the rocks.
11
the rocks, and I had a chance to ask for some different
12
types of behaviors with him there.
13
14
15
16
Q.
He was in the pool and I was behind
And would that have been that you were
working him distally?

A.
It would be considered distally, yes, because
there was a barrier.
17
MS. GUNNIN:
18
JUDGE WELSCH:
19
Let me ask just a few questions, Ms. Schaber.
20
If I understand it, you started with the Shamu
21
That's all I have, Your Honor.

Okay, thank you.
Stadium in 2005?
22
THE WITNESS:
That's correct.
23
JUDGE WELSCH:
Was Ms. Brancheau an assistant
24
25
supervisor then?
THE WITNESS:
I believe in 2005, she was an
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2
3
4
5
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assistant supervisor.
JUDGE WELSCH:
She would have been one of your
supervisors?
THE WITNESS:
Yes, a nonsalaried supervisor at
the time.
JUDGE WELSCH:
Okay, from 2005 you had just
started at Shamu Stadium working with the killer whales.
If I understood you correctly, you said in about a year
you started working with Tilikum?
10
THE WITNESS:
Yes.
11
JUDGE WELSCH:
Did you have interaction contact
12
with Tilikum at that point or what kind of work were you
13
doing when you first started with Tilikum?
14
THE WITNESS:
Because I was a senior trainer
15
and had prior experience and I was able to be part of
16
his team, the first step is to be called the nontactile
17
team, so I would work him behind the area asking
18
different types of behaviors.
19
JUDGE WELSCH:
So, if you started as a senior
20
trainer at the Shamu Stadium in 2005, sometime in 2006
21
you would have started the nontactile work with Tilikum?
22
THE WITNESS:
Yes.
23
JUDGE WELSCH:
At what point, then, would you
24
25
start doing the tactile work with Tilikum?

THE WITNESS:
I believe it was a couple of
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months after I had a relationship with him and I worked
him more, and there wasn't any problems, things were
going well.
I understood a lot more in working with him,
training him, there wasn't any -- things were very
clear, and my performance was a good criteria and the
interactions felt very comfortable for approving me for
his tactile team.
JUDGE WELSCH:
Turning to the shows, let's go to
10
the show on February 24, 2010, if I understand it,
11
preceding, before the Dine With Shamu show, that was the
12
Believe Show?
13
THE WITNESS:
Yes.
14
JUDGE WELSCH:
The Believe Show is performed on
15
the bigger stadium?
16
as the Dine With Shamu?
17
THE WITNESS:
It's not performed in the same pool
The front pool was considered our
18
front show pool where the audience can see that pool for
19
all the behaviors for the show.
20
21
JUDGE WELSCH:
So, the Believe Show, that's in
the big stadium?
22
THE WITNESS:
Yes.
23
JUDGE WELSCH:
Okay, how many whales do you
24
recall were performing in the Believe Show on
25
February 24th?
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THE WITNESS:
from five to seven whales in that particular show.
3
4
There could have been anywhere
JUDGE WELSCH:
Do you know whether or not
Tilikum was performing in the Believe Show?
THE WITNESS:
He was not in that show.
JUDGE WELSCH:
When you come to work in the
morning, do you know what whales will be working, let's
say, in the Believe Show?
when you started work, did you know what whales would be
10
Let's take February 24th,
in the Believe Show?
11
THE WITNESS:
I believe for the first show,
12
yes.
13
member of the management team had picked which whales
14
were going to do the show, which segments and which
15
trainers were going to work with those whales for that
16
show.
17
The show was already written on the board so a
JUDGE WELSCH:
And if I understand it, the
18
Believe Show as more organized in terms of there were
19
set routines to set music that the trainers were
20
supposed to follow with the whales or that the whales
21
were supposed to perform for that show?
22
THE WITNESS:
It's more sequenced, yes.
23
JUDGE WELSCH:
From what I understand for the
24
Dine With Shamu show, it's more left to the discretion
25
of the senior trainer that's involved, or is there
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something kind of designated as to what is to be done
during that show?
Can you tell me how that works?
THE WITNESS:
A lot of the direction would come
from our management team whether it's on a daily basis
or a weekly basis.
If there -- any of the animals could perform in
our Shamu interaction, the shows for the guests.
So,
the direction comes from our management team of whether
they want more fun behaviors, the jumps and all that,
10
but if they wanted us to start working on a newer
11
behavior with the animals or if the direction team for
12
that particular interaction on that particular day to
13
spend some time and relating with them back there.
14
JUDGE WELSCH:
Going back to the Believe Show --
15
Tilikum is not in the pool like the other five or six,
16
seven whales -- is that performed both water work and
17
dry work?
18
THE WITNESS:
The Believe Show?
19
JUDGE WELSCH:
The Believe Show.
20
THE WITNESS:
At that time, they could have had
21
both, yes, from dry behavior where they're jumping in
22
the water on their own and doing some of the fun stuff,
23
and they could also incorporate trainers being in the
24
water with the killer whales performing with them.
25
JUDGE WELSCH:
If Tilikum wasn't in the Dine
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With Shamu show, could you also include water work as
well as dry work?
3
4
THE WITNESS:
If Tilikum wasn't in the Dine
With Shamu?
JUDGE WELSCH:
Yes.
THE WITNESS:
Yes, the Dine With Shamu
interaction, the show for those guests could include the
dry segment as well as the water work with trainers and
whales, yes.
10
11
JUDGE WELSCH:
Did Tilikum ever perform in the
Believe Show?
12
THE WITNESS:
Yes.
13
JUDGE WELSCH:
If he's in the water even with
14
15
other whales, was the rule not to have water work?

THE WITNESS:
There was never water work with
16
Tilikum whether he was in a pool by himself or with
17
other whales.
18
JUDGE WELSCH:
At what point in time were you
19
informed as to when Tilikum would be part of, let's say
20
in this case, the Dine With Shamu show?
21
THE WITNESS:
It was planned out for the day.
22
Our management team could plan the day early in the
23
morning, and there were -- it was written on the board
24
who had the opportunity to be part of the Dine With
25
Shamu program and which whales were going to perform it,
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so generally it was written every day.
JUDGE WELSCH:
Were you part of the performance
of the Believe Show, and was Ms. Brancheau part of the
performance of the Believe Show that preceded the Dine
With Shamu show?
THE WITNESS:
I was part of the Believe Show.
I was written to be part of the show.
remember if Dawn was in the Believe Show or not.
JUDGE WELSCH:
I honestly don't
If I understand it, during the
10
Dine With Shamu show, you worked as a spotter; that was
11
primarily your job?
12
THE WITNESS:
On that day, yes.
13
JUDGE WELSCH:
And, Ms. Brancheau was the animal
14
trainer directing Tilikum in the behaviors?
15
THE WITNESS:
Yes.
16
JUDGE WELSCH:
And, the gentleman who was the
17
speaker, is he also an animal trainer?
18
THE WITNESS:
He was at the time, yes.
19
JUDGE WELSCH:
Was he a senior level trainer?
20
THE WITNESS:
I believe he was a senior level,
JUDGE WELSCH:
And, your job as a spotter is to
21
22
23
24
25
yes.
kind of keep your eye on what the whale is doing?

THE WITNESS:
And what the trainer working with
the whale is supposed to be doing as well, yes.
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JUDGE WELSCH:
Is there some criteria in terms
of how close you are when you operate as a spotter?
Because in the video, we didn't see it.
Brancheau seems to go pretty much all the way around
various aspects of the pool area, the Dine With Shamu
pool area, but I couldn't follow where you were at any
point in time.
8
9
10
11
You see Ms.
I'm just trying to get a sense of some criteria as

to where the spotter is supposed to be during the show
with that kind of performance.
THE WITNESS:
When we were interacting with
12
Tilikum, the spotter was always next to the trainer
13
working with Tilikum.
14
Jay was her spotter and as she traveled around the pool,
15
I was there, I became her spotter, so as she was moving
16
about the pool, I was her spotter there, and as she went
17
back across the pool, Jay became her spotter.
18
JUDGE WELSCH:
So, if Dawn was across the way,
When you say "back across the
19
pool," that's where the announcer was working?
20
primarily just set up for the trainers, the access to
21
the pool that the trainers could go to?
22
THE WITNESS:
That's
Yes, it would be our back stage
23
area, platform area, and there was a part that I had
24
asked for vocalizations from Tilikum.
25
had a barrier between the rocks or between myself and
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Tilikum, I didn't need a spotter because I was so distal
from him.
JUDGE WELSCH:
And, then, after the Dine With
Shamu show, it does to some extent continue on because
you had some people that were staying to take
photographs in the pool?
THE WITNESS:
Yes, there was a separate tour.
It was a tour group from the guest service, so it was
just the order of events from the Dine With Shamu
10
program, and the show ended for the guests, I believe,
11
and the narrator would say "good-bye," and thank
12
everyone and hoped they had a good time.
13
So, that interaction would be finished.
We could
14
then continue working with the animals, staying with
15
them.
16
our agenda was to set up a further opportunity for a
17
separate tour that comes down to the underwater viewing
18
area.
19
And, on that particular day, our next thing on
JUDGE WELSCH:
I think in response to Ms.
20
Gunnin's question, it was a little more general in terms
21
of what you would do if you felt uncomfortable or unsafe
22
23
go talk to management about that.
24
25
And, I think you said you would
I wanted to ask you a little more specific

question.
Have there been occasions prior to the
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February 24, 2010, either during a performance or during
a show, the Dine With Shamu show, or even the back stage
training that you felt uncomfortable or felt some
aggression from Tilikum?
THE WITNESS:
I did not experience any feeling
that was so uncomfortable that I would have had to say
anything.
be some fish or a bucket in the way or some ice, and you
would have to say, "Could you move back, can you be
Sometimes it could just be that there might
10
careful, can you move that out of your way," kind of
11
thing.
12
that there could be something that could make you fall
13
on stage or something like that.
14
That could be the level of uncomfortableness
JUDGE WELSCH:
Did you consider -- in terms of
15
his history, did you feel a little more apprehensive
16
about working around Tilikum as opposed to the other
17
killer whales, or did you just treat all the whales the
18
same?
19
THE WITNESS:
I had more of a heightened sense
20
of awareness to be extra observant while I was working
21
with him, to be very clear on the environment, making
22
sure it was safe and very secure, we were balanced,
23
observing his behavior that he was in a calm state,
24
things like that.
25
sense of awareness while I worked with him just to be
So, I would have a very heightened
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extra cautious.
JUDGE WELSCH:
In deal with Tilikum on the
February 24, 2010, date were there any situations where
he performed or exhibited behavior that you were
unfamiliar with?
6
7
8
9
10
THE WITNESS:
Not that I would be unfamiliar
with, no.
JUDGE WELSCH:
What about the other killer
whales that you worked with?

THE WITNESS:
I don't recall observing any
11
behavior that I didn't recognize that I didn't know what
12
it was.
13
JUDGE WELSCH:
So, as far as your experience,
14
the killer whales never exhibited any behavior that you
15
didn't recognize?
16
THE WITNESS:
That's correct.
17
JUDGE WELSCH:
I keep going back to those
18
precursors for aggression.
19
different sense.
20
aggression that you would recognize from Tilikum that
21
might not be the same for the other killer whales or
22
are all the killer whales in terms of precursors for
23
aggression, do all of them exhibit the same behaviors?
24
25
THE WITNESS:
I guess I'm getting a
Are there different precursors for
Well, in terms of precursors to
aggression, there is a list of behaviors that all killer
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whales or dolphins would display equally.
all for the most part display them the same, no matter
if it was one individual animal or the other.
would look very similar.
JUDGE WELSCH:
They would
They
Did Tilikum have any precursors
to aggression that the other killer whales did not have?
THE WITNESS:
In general?
JUDGE WELSCH:
Yes.
THE WITNESS:
No.
JUDGE WELSCH:
When you're looking for what you
10
11
might see in Tilikum that you didn't see in the other
12
killer whales that would be what you would consider a
13
14
THE WITNESS:
15
16
17
18
No, he would display the same
ones as the other killer whales.

JUDGE WELSCH:
Can you give me what are the
precursors to aggression, would you consider?

THE WITNESS:
A very common one is their eyes
19
get very big.
Another common one is their muscles in
20
their back and shoulder area can get very tight, they
21
could be sinking, not giving you eye contact.
22
could be very different vocalizations, not necessarily
23
all vocalizations, but there could be certain
24
vocalizations that are not normal that they perform that
25
could possibly be a sign that they're anxious or
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frustrated that could be a precursor.

A different one could be the squirting or what we
consider hosing which is a little bit more forceful
water that they could display that could be a sign that
they're frustrated; it could be a sign that aggression
is about to come.
behavior and they're all very similar.
8
9
So, there are different types of that
JUDGE WELSCH:
If you saw the eyes getting
bigger -- let's just take the first one -- would that
10
mean to you -- just that -- would that mean to you that
11
there is a good chance of aggression, or do you look for
12
other factors after that?
13
THE WITNESS:
If I saw an individual precursor
14
such as large eyes, to me that shows me that that animal
15
could be in an anxious or a frustrated state, not in a
16
calm state that potentially could be something that is
17
affecting them, and because something in their
18
environment could affect them, it could be frustrating
19
them that they could be aggressive.
20
Does that make sense?
21
JUDGE WELSCH:
Yes, I think I understand what
22
you're saying because it might show a sign of
23
frustration, but it doesn't necessarily mean it's going
24
to be a sign of aggression?
25
THE WITNESS:
It doesn't necessarily mean the
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animal will perform anything aggressive.

JUDGE WELSCH:
Okay.
In terms of your own
safety, if you saw the animal, the killer whale's eyes
get big, to you that's a sign that there may be some
frustration or something, what would you do if you were
in the water?
THE WITNESS:
If I was in the water --
JUDGE WELSCH:
Let's take it out of Tilikum.
THE WITNESS:
Okay.
JUDGE WELSCH:
Tilikum is not there, I know you
10
11
don't get in the water with Tilikum, but you're in the
12
water with another killer whale, and you see the eyes
13
getting large.
14
THE WITNESS:
For myself, I could make the
15
decision to, you know, ask -- and the animal's
16
particular behavior that I know they perform very
17
easily, you know maybe like a wave which is very easy,
18
very highly reinforced, it's very positive to see how
19
they are.
20
I could make a choice to see if this animal -- ask
21
the animal if we could go together over to the side of
22
the pool or the stage, and I could get out of the water
23
and continue performing with them if I felt that there
24
could be some sort of anxiousness, there could be some
25
sort of frustration.
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You could then ask the animal to go over to the
spotter that is spotting you in the water, and they
could take control of that animal and that would be a
behavior that could allow the animal to be reinforced.
You could go on, you could get out of the water at that
point if you wanted to.
7
8
9
JUDGE WELSCH:
So, you're making judgement
calls?
THE WITNESS:
You're making your behavioral
10
decisions while you're working with the animal very
11
similar to if you were on stage working with the animal
12
and asking different behaviors.
13
decisions all the time, yes.
14
JUDGE WELSCH:
You're making those
But, you're in a more vulnerable
15
situation when you're in the water as opposed to being
16
on the stage.
17
18
Do you feel that?
THE WITNESS:
Because you're in such close
proximity.
19
JUDGE WELSCH:
20
environment than --
You're more in the whale's
21
THE WITNESS:
Than on land, yes.
22
JUDGE WELSCH:
-- than when you're on land?
23
THE WITNESS:
Yes.
24
JUDGE WELSCH:
Thank you, ma'am.
25
Mr. Howard-Fishburne, do you have any Redirect?
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Could we have about two or three minutes?
JUDGE WELSCH:
break.
Yes, Your Honor.
Yes, let's take a five-minute
Be back at 2:00.
JUDGE WELSCH:
Ms. Schaber, I will remind you you're still under
oath.
10
Ms. Howard-Fishburne?
11
12
---o0o---
13
14
15
Q.
Do you still have R-2 in front of you?
16
A.
Yes.
17
Q.
Ms. Gunnin asked you some questions regarding
18
the Shamu Stadium area manual?
19
A.
Yes.
20
Q.
That is a manual you're required to read as a
21
22
23
Senior Trainer 1?
A.
Any trainer at Shamu Stadium, you're required
to read that manual.
24
Q.
Are you familiar with the document?
25
A.
I have read it, yes.
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2
Q.
Are you required to read this document
annually as well?
A.
That's correct.
Q.
Can you turn for me to Page 1405 in the
document?
A.
(Witness Complies).
Okay.
Q.
The second bullet point says:
"When animal interactions are occurring
without a barrier or a wall, a trainer level or
10
above must be present."
11
12
Why is this?
A.
This is stating that interactions that are
13
within the proximity of the trainers, that a certain
14
level -- this statement here the trainer level, this
15
experience level would then need to be the spotter.
16
17
18
Q.
What I was asking was, do you know why that
rule is in place?
A.
The trainer level would be a level that would
19
have enough experience to be able to observe the
20
interactions, to be there for any sort of assistance and
21
have enough knowledge and understanding that could help
22
with anything going on during the interactions.
23
24
25
Q.
Do you know what risk is involved with
interacting with the animals without a barrier?

A.
It depends on what type of risks you're
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talking about.
Q.
What risks are involved when you're working
with a killer whale without a barrier?
to recognize those hazards?
A.
Are you trained
Well, we talked a little bit about an animal
that could not be in a calm state that could be
frustrated or anxious that could display some aggressive
behavior.
Q.
You've been mentioning terms like
10
"frustrated," likes and dislikes.
11
the whale is thinking, do you?
You don't know what
12
A.
We know what whale behavior is.
13
Q.
But, you don't know what a whale is thinking?
14
A.
No.
15
We can interpret some of the animal's
behaviors and decide decisions from that.
16
Q.
So, you don't know what a whale is thinking?
17
A.
I would say, no, we do not know exactly what
18
19
20
21
22
23
an animal is thinking.
Q.
So, your characterizations are based on your
observations working with killer whales, correct?

A.
I don't know what you mean by
"characterizations."
Q.
When you use words like, "like and dislike,"
24
you're using those words based on your experience
25
working with the whale?
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2
3
4
5
6
7
8
9
10
11
A.
I'm using those words based upon the animal's
behavior that they're displaying.

Q.
Your observations with working with the
killer whales because you don't know?

A.
We know what they enjoy and what they don't
enjoy based upon their behavior.

Q.
What information do you have that would tell
you that you know what they enjoy?

A.
Because they continue performing the behavior
with the trainer, certain things that they do enjoy.

Q.
And, typically, after a successful
12
performance or behavior, you feed the killer whales,
13
don't you?
14
15
16
A.
It could be one thing which we give a killer
whale.
Q.
So, it's possible that the killer whale is
17
seeking food so if they perform the interaction, they
18
know they get food?
19
A.
I don't know if I could answer that question.
20
Q.
What part of it do you not understand?
21
A.
Can you repeat it for me again?
22
Q.
It's possible that the killer whale may
23
continue to properly do certain behaviors because the
24
killer whale knows from the past behaviors that you feed
25
him food, that you give them fish or you give them ice
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1
2
or gelatin?
A.
That's correct because those are things that
the animal enjoys because they accept those things and
because it is positive.
to have the behavior with those killer whales.
6
7
Q.
That would be why we continue
The killer whale needs to eat, though,
doesn't it?
A.
Everybody needs to eat, yes.
Q.
So, whether they enjoy it are not, they're
10
going to eat to survive; is that correct?
11
A.
That's correct, yes.
12
Q.
Can you turn to Page 1406, and it's Bullet
13
Number 2:
14
"Never turn your back on an animal while
15
receiving input from other trainers or guests.
16
You should maintain visual contact with the
17
animals."
18
19
20
Can you tell me why Sea World has a rule that

you shouldn't turn your back on an animal?
A.
Because you a should always be aware of the
21
environment, you should always be observing those
22
animals.
23
that's on stage, things like that, such as a different
24
type of toy, and that you should be aware of where you
25
are in regards to observing and working with those
An animal could be reaching for anything
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animals.
Q.
The killer whale could also hit a trainer
with his body, correct?
A.
That could be a potential.
Q.
Or they could pull an animal trainer into the
water with your back turned?
A.
That could be a potential.
Q.
Now, you answered some questions just a
moment ago about during the Shamu show, and you were
10
talking about the performance and different segments of
11
the Believe Show and the Dine With Shamu show.
12
At Sea World there's an opportunity for
13
guests to actually go and do a behind the scenes at the
14
Believe Show prior to February 24, 2010; isn't that
15
correct?
16
A.
I'm not sure what you mean.
17
Q.
Prior to the incident on February 24, 2010,
18
was there an opportunity for a guest to experience a
19
behind the scenes where they were sort of escorted by
20
animal trainers?
21
A.
Do you mean a tour?
22
Q.
Yes.
23
A.
I believe in the history prior to February,
24
25
we had various tours into a stadium, yes.

Q.
That's not considered a show?
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A.
That's not considered a show.
Q.
And, when customers pay to actually
experience the Dine With Shamu, they're actually paying
because they expect to see a performance with the animal
trainer and the killer whale, correct?
A.
The Dine With Shamu program is a dining
experience with different types of interactions with the
animals, yes.
Q.
10
11
And, the customers expect to see a
performance; is that correct?

A.
I'm not sure what the customers would expect;
12
if they're there to enjoy the dinner or they're there to
13
enjoy some sort of interactions.
14
Q.
So, is it your testimony if the customers had
15
paid admission into the Dine With Shamu and there was no
16
performance, that would acceptable?
17
A.
I don't know what the guests would expect.
18
Q.
Have you ever participated in a Dine With
19
Shamu interaction where there was a Dine With Shamu --
20
have you ever participated in or been a member of a team
21
for Dine With Shamu where there was no performance for
22
the guests?
23
24
25
A.
It's possible, yes.
I don't recall any
specific time, though.

Q.
In what instance would there be a possibility
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where the guests would not actually see any animal
trainer working with the killer whales?
A.
It's possible that there could have been a
time where the animals decided to swim on their own
during the dinner.
Q.
So, that would be Sea World's intention to
provide a show, but for the killer whale acting like an
animal?
9
10
A.
it chooses to do.
11
12
The killer whale is choosing to do whatever
Q.
Which they would just be not in your control
if they didn't perform the show, correct?
13
A.
If they are not under control, if they are
14
not with the trainer to perform certain behaviors, they
15
would be doing something on their own.
16
Q.
17
vocalization?
18
A.
Yes.
19
Q.
Killer whales, they vocalize naturally, don't
21
A.
Yes.
22
Q.
You also gave additional testimony regarding
20
We talked about training killer whales for
they?
23
a spotter, and the spotter's responsibilities.
24
spotter, whether they're spotting for an animal trainer
25
whether it was Tilikum or another killer whale is the
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second set of eyes?
A.
It's an additional pair of eyes, yes.
Q.
When you're acting as a spotter, do you also
interact with the killer whale as well?
A.
If you're interacting with the killer whale,
the other trainer that's with you could then become your
spotter.
Q.
So that's a decision that's just made at the
10
A.
It's a decision made based upon the trainers.
11
Q.
Now, you testified that when you worked with
time?
12
Tilikum, you had a heightened sense of awareness, and
13
you had a heightened sense of awareness because Tilikum
14
had killed two other people?
15
A.
Because of the history of Tilikum, yes.
16
Q.
And, you maintain that heightened sense of
17
awareness with Tilikum, don't you?
18
A.
Do you mean currently?
19
Q.
Currently.
20
A.
Yes.
21
Q.
You also testified that there was a behavior
22
exhibited by the killer whale that you didn't recognize?
23
A.
That's correct.
24
Q.
So, is it your testimony that there's no
25
behavior or action done by a killer whale that has
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surprised you during the time that you have worked at
Shamu?
A.
That's correct.
Q.
So, you have seen every type of behavior that
a killer whale might exhibit?
A.
As far as I know, yes.
Q.
You talked earlier with the Judge as well as
Ms. Gunnin regarding precursors.
that topic.
We keep coming back to
You mentioned the whale getting a big eye
10
might be a precursor to aggression.
11
that testimony?
Do you remember
12
A.
Yes.
13
Q.
There are other precursors that Sea World
14
trains you to recognize; is that correct?
15
A.
Yes.
16
Q.
And, some of those precursors are head
17
bobbing?
18
A.
Yes.
19
Q.
And unusual vocalization?
20
A.
Yes.
21
Q.
Fluke or pec slapping?
22
A.
Yes.
23
Q.
What is that?
24
A.
The fluke is their tail, and their pec is
25
their pectoral flippers.
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Q.
Is that just it's slapping?
If you saw a
killer whale doing that, would that be a precursor or
would it have to be at a certain speed?
4
5
6
A.
It would depend on the energy level with
which the animal performed it.

Q.
So, if the animal was in a heightened state,
and its pec was slapping, you would consider that to be
9
10
A.
It could be a potential precursor, yes.
JUDGE WELSCH:
But isn't that the same behavior?
11
Because I think I saw it on the video.
12
the behavior that you train the whale to do?
13
THE WITNESS:
Yes.
Isn't that also
The precursors are sometimes
14
generally behaviors that they're eliciting on their own,
15
that they're doing on their own.
16
So, if they're slapping their flipper or their
17
tail in a harder state that's not in a normal behavior
18
where there shouldn't be something going on at that
19
particular time where they're not being social or
20
they're not just swimming on their own, it could be a
21
potential sign that they're frustrated which could lead
22
possible aggression.
23
24
Q.
25
And, Sea World trains you to recognize those
precursors and then to respond to them?
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1
2
3
4
A.
They train us to understand them and
recognize them, yes.

Q.
And, as part of that training, you also
receive training on how to respond to the precursors?
A.
It depends on what you mean by respond.
Q.
Well, at Sea World, they don't just provide
you with the information about what a precursor is.
They also provide you with how to get away from that
particular behavior if in your judgement you determine
10
11
it to be possible aggression, correct?

A.
They provide us with all kinds of information
12
and knowledge and principles in regards to working with
13
animals with their behavior and observing it and working
14
with them during the interaction as well as just
15
observing them outside of an interaction.
16
Q.
17
I don't know if that answered my question.

I guess my question is, is it your testimony
18
that it's just up to you how you respond to the
19
precursor that you might observe from the killer whale?
20
A.
If you're working with a particular animal
21
that may show signs of a precursor to frustration or
22
aggression, you at that time have resources, such as
23
your spotter, your experienced spotter working with you,
24
you have additional people that are working and your
25
spotter on stage during a show, so that if there was any
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guidance needed in addition to your making a decision on
how you continue to work with that animal, you have
those resources available.
JUDGE WELSCH:
But, I think Ms. Howard-
Fishburne's question goes to whether or not Sea World
has trained you how to react to those kinds of
precursive signs, or do you just decide for yourself how
you want to react to those signs?
THE WITNESS:
They do provide information on
10
how to understand what those signs are.
11
information to what this could mean.
12
13
14
JUDGE WELSCH:
They provide
But in terms of what to do when
you see a sign.

THE WITNESS:
Yes, the information and
15
knowledge they give you of why this animal could be
16
showing these signs helps you make that decision as to
17
whether you want to continue working with an animal with
18
different things that could help them get to a more calm
19
state or whether it helps you to be able to take a break
20
from that animal, or they give you information and
21
knowledge to help you make a decision on asking an
22
animal that would help it get out of a particular
23
anxious, frustrated state, yes.
24
25
Q.
So, that's a judgement call that you have to
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make as an animal trainer?
A.
You can make the decisions, you could also --
helping you make those decisions are your additional
spotters and trainers with you working with you during
those interactions.
Q.
And, sometimes the decisions that you make in
response to those precursors are incorrect; isn't that
true?
9
10
11
A.
I'm sorry, would you repeat the question
again?
Q.
Sometimes the decisions that you make as a
12
animal trainer, as a killer whale trainer in response to
13
those precursors are not correct?
14
15
16
A.
Well, I would think it would depend on the
situation.
Q.
But, there have been -- are you familiar with
17
prior incidents where killer whale trainers have either
18
missed a precursor or failed to respond to a precursor?
19
20
21
22
MS. GUNNIN:
Judge, I'm going to object because
that is going beyond the scope of Direct and Cross.

Your Honor, we have been
talking about --
23
JUDGE WELSCH:
Overruled.
24
THE WITNESS:
Can you repeat it one more time?
25
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Q.
The question was, so in your opinion as an
experienced killer whale trainer, you have knowledge of
animal trainers who missed a precursor or failed to
respond properly to a precursor in prior incidents;
isn't that correct?
6
7
A.
I know of prior incidents that there could
have been mistakes made, yes.
JUDGE WELSCH:
10
Ms. Gunnin?
MS. GUNNIN:
11
recall in our case.
12
JUDGE WELSCH:
I'm done, Your Honor.
Judge, we reserve to right to
You're excused.
I will instruct
13
you not to discuss your testimony with other persons who
14
may be called later as witnesses in this case.
15
16
According to Counsel, you may be called back later

in this case.
Okay?
17
THE WITNESS:
18
MR. BLACK:
Okay.
For the record, we just would
19
object to reserving the right to recall when they have
20
been able to go beyond of the scope of the initial
21
examination.
22
23
24
25
JUDGE WELSCH:
I'm not sure what your objection
is, but go ahead and sit down.
It's on the record.
You're excused.
(Witness Excused)
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JUDGE WELSCH:
going with that.
MR. BLACK:
JUDGE WELSCH:
Go ahead.
I wasn't paying any attention.
Mr. Black or Ms. Howard-Fishburne, does
MR. BLACK:
Yes, Your Honor.
At this time, the
Secretary calls Chuck Tompkins.
9
10
You didn't like wherever it was.
the Secretary wish to call their next witness?
7
8
I wasn't sure where you were
JUDGE WELSCH:
Mr. Tompkins, do you want to
come up?
11
---o0o---
12
CHARLES TOMPKINS,
13
14
15
JUDGE WELSCH:
Sir, for the record, state your
16
full name, spell your last name and state your address,
17
please.
18
THE WITNESS:
19
T-o-m-p-k-i-n-s.
20
home?
21
22
23
24
25
Charles Tompkins,
Do you want my work address or my
JUDGE WELSCH:
Whichever one you feel more
comfortable.
THE WITNESS:
Home address, 12037 Lake Butler
Boulevard, Winter Park, Florida.

JUDGE WELSCH:
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MR. BLACK:
---o0o---
DIRECT EXAMINATION
BY MR. BLACK:
Q.
Mr. Tompkins, you are currently the Corporate
Curator for Zoological Operations for Sea World Parks
and Entertainment?
A.
Yes, sir.
Q.
And that's a big title.
Sea World Parks and
10
Entertainment, that's the parent company for Sea World
11
of Florida LLC?
12
A.
It is.
13
Q.
And, in your position as Curator for
14
Zoological Operations, you're responsible for the care
15
of Sea World's killer whales?
16
A.
Yes, I am.
17
Q.
And, Sea World currently has three parks
18
within their system that have killer whales?
19
A.
Correct.
20
Q.
And, that's the park in Orlando?
21
A.
Yes.
22
Q.
And a park a San Diego, California?
23
A.
Yes.
24
Q.
As well as a park in San Antonio, Texas?
25
A.
You've got them.
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Q.
park in Ohio?
A.
Aurora, Ohio.
Q.
Where is Aurora?
A.
Outside of Cleveland by about 30 minutes.
Q.
And when did Sea World stop operating that
A.
A good question.
15 years ago.
10
And, in previous times they have also had a
park?
Q.
I'm going to say about
And, then Sea World owns some other killer
11
whales that aren't at the three current parks, and they
12
own whales that are not housed today in any of the three
13
parks, right?
14
A.
You're correct.
15
Q.
And those whales, some of them are at Loro
16
Parque in the Canary Islands?
17
A.
Correct.
18
Q.
There are five whales there?
19
A.
Five whales.
20
Q.
And, earlier, I guess we had some uncertainty
21
as to whether or not Sea World owned four of the five
22
whales or all five of the whales?
23
A.
We own all five of those whales.
24
Q.
Including the recently born juvenile?
25
A.
Yes.
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1
2
Q.
And Sea World also has a whale at Marine Land
in Niagara?
A.
Yes.
Q.
Up in Canada?
A.
Yes, sir.
Q.
And, so what is your responsibility for those
7
8
9
10
whales that aren't at the Sea World Parks?

A.
In my role, it's to make sure that they
maintain the type of care that we would give our killer

whales at our own parks.
11
Q.
12
A.
Well, it means that our philosophy of
13
training and also the way we physically take care of the
14
animals.
15
Q.
And, by your philosophy of training, are you
16
talking about positive reinforcement operant
17
conditioning?
18
A.
You're correct, yes.
19
Q.
And, positive reinforcement operant
20
conditioning is a way to train the whales?
21
A.
It is one way.
22
Q.
It's the way that Sea World uses and wants
23
the whales at these other parks to be trained as well,
24
right.
25
A.
Yes.
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1
2
Q.
And, it's a way of training to get care for
the whales, right?
A.
Correct.
Q.
But, also to get the whales to behave in
particular ways that help Sea World run its business?
A.
Correct.
Q.
For example, to put on shows, they use
operant conditioning to work their way up to training
the whales to be able to perform during the shows?
10
A.
Well, it's not just shows.
It's any time
11
you're asking behavior whether it's in a show or
12
training session or husbandry session, you're using the
13
same type of training philosophy.
14
Q.
Sure, sure, fair point.
But among the
15
reasons that they do it is also so they can put on the
16
shows and get them to perform in the shows?
17
A.
Sure, yes.
18
Q.
And from 1989 to 2009, you had the title Vice
19
President of Animal Training for Sea World of Florida?
20
A.
Yes, sir.
21
Q.
And, you were the head of animal training at
22
Sea World of Florida's Park, right?
23
A.
Yes, I was.
24
Q.
And, I'm sorry, did you also have the title
25
of curator during that period?
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1
2
discussion at your deposition.

A.
It was actually a time period back in 1988
for two years, they called it Curator and Vice
President, and then we added a position and there was a
curator position for awhile for several years, so there
was a time period where I held both titles.
7
8
Q.
Whatever your title during that 20-year
period, your duties were the same?
A.
Yes.
10
Q.
And, your duties were to be responsible for
11
the killer whales at the Sea World of Florida Park?
12
A.
Yes, sir.
13
Q.
As well as other animals in addition to
14
killer whales?
15
A.
Yes, sir.
16
Q.
And, then, in 1982, that was the year you
17
became a senior trainer at Shamu Stadium, right?
18
A.
Yes.
19
Q.
And, now, as far as the training of personnel
20
who work at Shamu Stadium, the trainers are trained on
21
Sea World's standard operating procedures?
22
A.
Yes, they are.
23
Q.
And, sometimes they're call the SOP's?
24
A.
Right.
25
Q.
You've heard that term?
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A.
Yes.
Q.
And, that's the main component of Sea World's
written training for trainers, right?
A.
Right.
Q.
And, then, the trainers they actually sign a
document indicating that they have read the SOP's?
A.
Yes, they do.
Q.
And, that they will follow the SOP's and
9
10
understand the risks involved in animal training even if

they follow the SOP's, right?
11
A.
Yes.
12
Q.
Now, the trainers, they have a lot of things
13
that need to know about the killer whales.
14
fair statement?
Is that a
15
A.
It is.
16
Q.
They need to know the killer whale's history,
17
right?
18
A.
Correct.
19
Q.
And, they need to know the killer whale's
20
age; how old the killer whale is?
21
A.
They do.
22
Q.
23
gender or sex?
24
A.
Yes.
25
Q.
And, the killer whale's social group or what
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social grouping they're in, right?
A.
Correct.
Q.
predisposition if you will?
A.
Well, it's not a predisposition.
It's
possible behaviors from their entire history that could
play a part in how they react to their environment.
Q.
But, they need to know what their tendencies
10
A.
Right, a better word for it, yes.
11
Q.
So, their tendencies, for example, some
are?
12
whales have exhibited more aggressive behavior than
13
other whales?
14
A.
We need to keep it in context.
Just because
15
you had an aggressive moment in your younger years as a
16
killer whale does not mean from that point on, you're an
17
aggressive whale.
18
It's a behavior that you could have had
19
sometime in your life that showed up and you want to
20
make note of it to make sure that you never replicate
21
that environment if there is an environment or cue that
22
could help bring that behavior out.
23
24
25
So, it's not something that could carry on

the entire life of the animal either.
Q.
It's your view that it could be changed later
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on in the whale's life?
A.
Absolutely.
Q.
But, for certain periods of their life, they
may have the label of having aggressive tendencies,
right?
A.
Not necessarily.
Just because there are
behaviors that we've noted that could be a precursor to
aggression does not mean it's aggressive behavior.
A lot of things that we note about our
10
animals are behaviors that we've seen in the past could
11
lead to aggression.
12
aggressive or that behavior could lead to aggression,
13
but we have those certain cues and precursors when it
14
comes to aggressive events that we want to keep an eye
15
on.
16
17
18
19
20
Q.
It doesn't mean the killer whale is
I'm sorry, precursors when it comes to
aggressive events?
A.
Yes, and precursor doesn't always mean a
precursor to aggression.
Q.
And, I understand what you're saying that not
21
-- you seem not to like the idea of labeling a whale as
22
aggressive, right?
23
A.
Well, I think we need to be careful about
24
that, yes, because, you know, we do a lot of history,
25
study with our killer whales from the day they start at
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Sea World or are born at Sea World, we keep track of
them, and we mark down those behaviors that we can see
throughout their lives.
We have a living biography of a killer
whale's life.
changes dramatically, when we're younger to older.
Just like in human beings, our life
So, I am very cautious of people reading one
event and saying that's what you're going to be the rest
of your life.
10
11
And, we need to be careful when we read
that and see that with our killer whales as well.

Q.
So, if there was an aggressive event by that
12
killer whale, you're saying that that doesn't
13
necessarily mean that there's going to be another
14
aggressive event later on?
15
A.
Absolutely.
16
Q.
Absolutely, there will not necessarily be?
17
A.
No, there's a good chance there might not be.
18
Q.
And, that's because Sea World thinks that
19
it's able to avoid another aggressive event by taking
20
certain behavioral steps?
21
A.
That's the whole job of the trainer on
22
reading behavior and seeing all those events and taking
23
your entire environment into consideration and
24
preventing yourself or a whale from ever getting into
25
that situation in the first place.
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Q.
Right.
A.
To a very high degree, it does.
Q.
But it doesn't always work?
A.
Not always.
Q.
In fact, Sea World keeps track of instances
And it doesn't always work?
where it hasn't worked, where it's failed if you will?
A.
We do have an incident log, yes.
Q.
I'm sorry, you say an incident log?
A.
Yes.
10
Q.
And, the incident log is where you log
11
incident reports?
12
A.
It is.
13
Q.
Now, in keeping records of the animals and
14
working with the animals, Sea World records the
15
interactions they have with the whale and something in
16
some type of animal record, right?
17
A.
Every single day, yes.
18
Q.
And, every single interaction is recorded in
19
that animal record?
20
A.
You're correct.
21
Q.
And, those are hand kept records, hand
22
written records?
23
A.
They are.
24
Q.
And, they're used as reference files at Shamu
25
Stadium?
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A.
They are.
Q.
And, so at Sea World, then, before a trainer
works with a killer whale in an interaction, they have
to determine what they want to consider or look at prior
to that interaction, right?
A.
That's correct.
Q.
And, Sea World leaves it to the trainer's
discretion to decide how much to review of those records
prior to having that interaction or session?
10
A.
That's not necessarily true.
It depends on
11
your experience level.
12
are coached by your experienced coach trainers on what
13
you're looking for and what you need to pay attention
14
to.
15
make those decisions.
16
If you're a newer trainer, you
As you acquire more skill, more experience, you can
Q.
Would it be a better statement, then, for the
17
more senior trainers, it's left to their discretion to
18
determine how far back to look in an animal's records
19
and what records to review?
20
A.
You're correct.
21
Q.
So, it's a matter of degree?
22
A.
Yes.
23
Q.
Now, Sea World keeps an incident log that
24
25
contains incident reports?

A.
Correct.
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Q.
And, these incident reports are documents
that record behaviors of having the ability of being
aggressive?
4
5
A.
They are behaviors that we think could
possibly lead to aggression.
Q.
Maybe I could help you stick some more
qualifiers in there.
we think possibly could have the ability to leading to
aggression.
10
A.
You said there are behaviors that
To define what an incident is and what the
11
criteria is, it's left up to the trainer.
12
sees a behavior that he or she is uncomfortable with, it
13
becomes an incident.
14
If he or she
Not all of those incidents that have led to
15
aggression, but it's these outlying behaviors that we
16
want to keep track of that could help us in the future.
17
So, not all of them led to aggression.
18
Q.
So, now, I will ask the question I started
19
with.
Incident reports record behaviors that have the
20
ability of becoming aggression?
21
A.
Yes.
22
Q.
And, they also record behaviors -- well, you
23
have just said, even if it doesn't become aggressive,
24
that could be recorded, right?
25
A.
Correct.
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1
2
Q.
And, should be recorded if it's an unusual
behavior?
A.
Yes.
Q.
And, unusual behavior is an unexpected
5
6
behavior?
A.
No, not necessarily.
It could be those
things we've seen in the past where a killer whale's
body position, the way it carries itself, the way it
moves its body, the way it looks at you.
10
There are many different factors that we've
11
seen in the past.
12
not mean anything at all but it's conceptual.
13
the trainer is doing and what's happening in the
14
environment helps that trainer decide whether that
15
behavior fits within that incident definition.
16
17
18
Q.
And, again, by themselves, they may

It's what
And, so an unusual behavior could also be
something that you hadn't seen before, right?

A.
It could but, really, that's very rare.
Most
19
of the times when we see behavior, we know where it's
20
coming from and we've seen it before.
21
Q.
I'm sorry, you know where it's coming from?
22
A.
In other words, we understand the motivation
23
behind it.
24
Q.
You understand the motivation?
25
A.
There are very few things that killer whales
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do that we haven't seen before.
Q.
Very few.
And, when you say you understand the
motivation behind it, you're not saying that you're --
the whale is not talking to you or anything, right?
A.
No, but when you spend ten hours a day, your
entire crew working with a killer whale, you start to
learn things about the animal.
8
9
Again, it's all in your environment.
You're
reading not only just what's happening around you, but
10
you're looking at the whale, the eyes of the whale, what
11
it's doing, is it relaxed, not relaxed, is it eating
12
food, is it refusing food, is its head relaxed on the
13
deck, is it laying sideways, is it paying attention to
14
other killer whales?
15
we pay attention to, and that we can predict, read and
16
see.
17
Q.
There are a lot of factors which
But, in predicting this is when you say that
18
-- I'm sorry, I think you said that your knowledge, you
19
know where the behavior is coming from, right?
20
A.
21
that we're in.
22
this unusual behavior, we most of the time have the
23
environmental cues that are helping us understand what
24
the whale might be doing.
25
Q.
More often than not.
We know the environment
If we see an animal that's showing us
Well, what the whale might be doing meaning
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what the whale might be thinking, feeling or what the
whale's next move might be?
A.
behaviorists.
behaviors of what a killer whale is doing, and based on
that, we to a high degree can predict what the outcome
of that behavior is going to be.
8
9
10
Q.
We're not mind readers, but we are

We read behavior.
We look at physical
Well, explain, I guess, you can predict what
the outcome of that behavior is going to be.
I don't
understand that.
11
A.
Well, we read our animals every single day
12
every time we step in front of them.
13
they are performing correctly or they're distracted or
14
whether they don't want to perform at all.
15
something you acquire very quickly when you start
16
working these animals, as you would working with any
17
animals.
18
We know whether
That's
It's just like having the dog at home.
You
19
definitely can read the disposition of your dog at home
20
very quickly because you spend so much time with your
21
pet.
22
We spend a great deal more time with our
23
animals.
So, yes, we understand very quickly a lot of
24
what they're showing us through their behavior.
25
know whether they're cooperative or whether they've been
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distracted or whether they do not want to perform or
whether they want to socially be with other whales or
they're breeding in the environment.
we can read because we have predictably seen that
behavior before.
Q.
All those things
Forgive me if I'm a little bit confused, but
when you say that you can't mind read the whales, but
then you're telling me that you know when they're
distracted or they're not cooperative.
10
11
I'm having a
little bit of a disconnect there.

A.
I'm not going to tell you we can mind read
12
our animals, but we read their behavior.
13
can do is set a predictable pattern of what we see with
14
that behavior, what they're going to do next.
15
Q.
And, all we
So, all you can do, based on what you
16
observe, is predict based on your experience what you
17
think that they will do next?
18
A.
Correct.
19
Q.
And, by thinking, predicting what you think
20
they will do next, you're making a guess, based on data
21
or a judgement -- maybe a guess you won't like that word
22
-- you're making a prediction based on the data?
23
A.
Correct.
24
Q.
And you're not always right?
25
A.
Not all the time but to the high degree, we
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are.
Q.
And, a high degree being that I think you
said something like 98 percent of the time, you can
predict what the whale is going to do?
A.
Actually, it's probably higher than that.
When you do the math, when you look at the amount of
incidents we have had, compared to the amount of
positive interactions we've had, the percentage is
extremely high.
10
Q.
Let's back up here for a second.
11
A.
Okay.
12
Q.
We don't just go from I predict what the
13
whale is going to do to either they do the right thing
14
or there's an incident, right?
15
A.
16
is here.
17
Q.
No.
I really don't know what your question
That's fair.
18
what my question is.
19
know.
20
I don't want you to guess at
If you don't know, please let me
You said that you have a greater than 98
21
percent level of predictability and then you mentioned
22
incidents.
23
A.
When you start rattling off numbers, you have
24
to put it in the context of where the numbers come from.
25
Let me try to explain to you where those numbers and
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where I think we need to be when we talk about numbers.
We talk about incidents.
We know within the
incidents we've had 98 of them within our company since
1988, right?
Q.
Wait a second.
A.
98 incidents that are recorded since 1988.
7
8
9
10
11
12
13
98?
It's all information you have, right?

Q.
Well, that's a different number than what --
you realize I took your deposition in this case?

A.
You've got to let me finish where I'm going
with it and you will understand why I -Q.
Well, I can't agree with you, I guess,
intermediately if I don't know where you're going.
14
A.
Okay.
15
Q.
Please, you were explaining 98 incidents were
16
17
18
19
20
21
recorded corporately?
A.
Correct.
Out of those 98 incidents, 12 of
them were injuries.

Q.
And, tell me what that has to do with being
able to predict an animal's behavior 98 plus percent.

A.
When I look at 98 times we've noted behavior
22
that we thought could have been aggressive, and when you
23
look at how many positive sessions we've had compared to
24
that 98, which we roughly know is about 1.6 million
25
interactions.
When you do the math, that's like a tick
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1
2
3
away from being a hundred percent.

Q.
And, you would hate to be that tick if you
were the one who had serious injury or death, right?
A.
Yes.
Q.
So, instead of talking about ticks, there are
110 incident reports that Sea World has reported in its
log, right?
8
9
A.
Some of those are -- if you go to that log,
you will realize that some of them are duplicates.
What
10
we know is 98 of them were ones that were recorded in
11
our Sea World Parks.
12
Q.
So, now, I'm just trying to understand how
13
you went from -- do you recall telling me that there
14
were 110 incidents when you had your deposition taken in
15
this case before?
16
17
18
A.
Yes, but I'm breaking it down to how many
we've had in our Sea World Parks.

Q.
So, 98 reported in Sea World Park.
So, are
19
you saying that 12 of those incidents were not at the
20
Sea World Parks?
21
A.
No.
22
Q.
So what happened to the other 12?
23
A.
Well, excuse me, yes, we've had ones in other
24
25
facilities with other killer whales.

Q.
So that would be Loro Parque?
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A.
Loro Parque.
Q.
Were there some from Marine Land that are --
A.
No, none from Marine Land.
Q.
How many from Loro Parque?
A.
There was only three.
And, again, I think we
need to go back and look at the number of incidents.
Some of them were duplicated on there.
8
9
10
Q.
I'm sorry, you keep talking about "on there."
What do you mean "on there"?

A.
The list of how many incidents you have on
11
there.
The actual number we have, the recorded number
12
is incorrect.
13
Just so you know, do you recall that Sea World provided
14
hard copy incident reports to OSHA in this case?
We have 101 different incidents on that.
15
Q.
I understand.
16
MR. BLACK:
17
JUDGE WELSCH:
18
MR. BLACK:
19
20
21
BY MR. BLACK:
22
Q.
Let me pull those out.

What tab is that?
In his Tab Number 1, Your Honor.
Mr. Tompkins, you have in front of you a
23
notebook containing several hundred pages of incident
24
reports?
25
A.
Yes.
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Q.
And, you've gathered these incident reports
together to produce to the Government during this case,
right?
A.
We did.
Q.
And, you have reviewed the incident reports,
right?
A.
Yes, we have.
Q.
And, these are all incident reports that
9
10
you're familiar with and that are in the possession of

Sea World at its parks, right?
11
A.
12
MR. BLACK:
13
Yes.
At this time, we would offer what
has been marked as C-6.
14
JUDGE WELSCH:
What is the period of time?
15
THE WITNESS:
From 1988 to 2009.
16
JUDGE WELSCH:
December 2009 or January 2009?
17
THE WITNESS:
Before 2009.
18
JUDGE WELSCH:
December.
19
MR. BLACK:
It's December of 2009 because
20
there's an incident from Loro Parque from December 2009.
21
JUDGE WELSCH:
22
MS. GUNNIN:
23
review this?
24
look at my copy.
25
Any objections?
Can we just have an opportunity to
I don't anticipate one, but I just want to
JUDGE WELSCH:
How much time do you need?
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373
you want me to hold the ruling until you've reviewed it?
MS. GUNNIN:
JUDGE WELSCH:
MS. GUNNIN:
BY MR. BLACK:
Q.
Yes, Your Honor.
Not right now.
I'll reserve the ruling.

Okay, thank you.
So, this is all of the recorded incidents.
You say 101 recorded incidents from Sea World Park from
1988 through December 2009?
A.
Yes.
10
Q.
And, you have reviewed this on enough
11
occasions to feel very comfortable with that number?
12
A.
Yes.
13
Q.
So, there are not any incident reports that
14
have been created at Sea World that are not in here?
15
A.
No, there's not.
16
Q.
And, then, you said something about it
17
includes three incidents from Loro Parque?
18
A.
It does.
19
Q.
And, since you're familiar with it, I think I
20
only saw two incidents from Loro Parque, but you may be
21
far more familiar with that than I am.
22
incident report from December 2009, involving trainer
23
Alexis Martinez?
I saw an
24
A.
Yes.
25
Q.
And, he was killed in December of 2009?
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A.
Yes.
Q.
And, then, the incident report I guess I
don't think I saw in here was the trainer -- and I'm
sorry, her first name was Claudia Bovhort (ph)?
A.
Bovhort, yes.
Q.
Can you spell that?
A.
No, I couldn't.
Q.
Because I didn't see that incident report in
10
A.
Um-hum.
11
Q.
And you've reviewed these.
12
13
14
15
It's a German name.
here.
Is that incident
report somewhere in here?

A.
Without going through the entire notebook, I
can't answer that.

Q.
I'll represent to you that this is the
16
entirety of everything that Sea World produced to us,
17
and you gathered to produce to us in this case?
18
A.
Yes.
To the best of my knowledge, yes.
19
Q.
And, we'll have some time so that maybe you
20
can find that incident report because I did not see it
21
in here.
22
23
24
25
By the way, the incident involving Ms.

Bovhort, what year was that?
A.
It was -- you know, I have some notes that I
put together to help my memory in this situation.
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375
could ask for those notes, it would help my accuracy in
being able to --
JUDGE WELSCH:
MR. BLACK:
Counsel, do you want him to -That's fine as long as we can look
at his notes.
JUDGE WELSCH:
You understand if you bring your
notes up here, he can look at your notes.
problem for you and your Counsel -- you might want to
show your Counsel the notes before you do that.
10
Do you want to do that, Ms. Gunnin?
11
MS. GUNNIN:
12
13
If that's a
Your Honor, can we just verify with
him?
JUDGE WELSCH:
Why don't you get down and find
14
your notes and show them to Ms. Gunnin and see if she
15
has any problem with them.
16
THE WITNESS:
(Witness Complies)
17
JUDGE WELSCH:
Are those the notes you're
18
talking about there?
19
THE WITNESS:
Yes, it is.
20
JUDGE WELSCH:
Have you shown them to Mr. Black
21
22
before you take them up to the stand?

MR. BLACK:
Are we able to either take a break
23
to make a copy because I don't want to stand over the
24
witness's shoulder while he's referring to his notes.
25
It might be easier if we can take a brief recess and go
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to the clerk's office.
don't want to stand over his shoulder if he's --
JUDGE WELSCH:
My concern is, like I say, I
My understanding was he was just
going to use his notes to refresh his recollection to
answer your question.
necessary to really --
7
8
9
10
11
THE WITNESS:
notes.
So, I don't know if it's
I think I can do this without the
Since it's a problem, it's not worth it.
JUDGE WELSCH:
If you don't remember, you don't
recall, just say you don't recall.

I do want to ask you what are on Exhibit C-6, the
12
incident reports, are there 110 separate incident
13
reports in here or are there 101 because what I
14
understood was there were 98 involving the Sea World
15
operations in the United States, the three parks.
16
THE WITNESS:
Right, 98.
17
JUDGE WELSCH:
So, there's 98 and then there are
18
three incidents where you own the whales but they're not
19
in your parks.
20
THE WITNESS:
Right.
21
JUDGE WELSCH:
And then you said there were
22
duplications.
What I'm asking you in this Exhibit C-6,
23
does that include the duplications?
24
THE WITNESS:
Yes, it does, sir.
25
JUDGE WELSCH:
So, in your mind, there are 101
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separate incidents?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Three of those whales in parks
that are not owned by Sea World and 98 owned by Sea
World, and then that would leave nine duplications; is
that correct?
THE WITNESS:
Correct.
JUDGE WELSCH:
Okay, thank you.
BY MR. BLACK:
10
Q.
And, Mr. Tompkins, do you know, having
11
briefly looked at your notes, do you recall which ones
12
are duplications?
13
A.
No, I don't.
14
Q.
Were those earlier in the time period 1988?
15
A.
I don't remember.
We just went through all
16
of them to make sure we verified which events occurred
17
with which trainer, and we tried to verify our accuracy.
18
Q.
And, when you say, "duplicates," you're not
19
saying or are you saying the same report is in here
20
twice or are you saying it was written up as two
21
separate incidents?
22
23
24
25
A.
No, I believe there are actual duplicates in
here that we have.

Q.
Well, I guess at a break, we may be able to
see what you're defining as duplicates.
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A.
Okay.
Q.
So, now, before, I was asking about what year
Claudia Bovhort was injured, and you started to say, "I
might need to look at my notes"?
A.
I believe it was 2007.
Q.
And, she sustained some pretty serious
injuries?
A.
She sustained some injuries, yes.
Q.
Well, she sustained some injuries that were--
10
A.
Yes.
11
Q.
I mean, you're not disputing --
12
A.
Oh, no, not at all.
13
Q.
So, you agree with me that she sustained
14
serious injuries?
15
A.
Yes.
16
Q.
And, you said that's not at a Sea World Park,
17
18
19
but it is at a Sea World Park that has Sea World whales?

A.
It's not a Sea World Park, but they have
whales that we have on a breeding loan to them.
20
Q.
They're on a breeding loan?
21
A.
Yes.
22
Q.
And that Loro Parque which has those whales
23
on the breeding loan, they use Sea World positive
24
reinforcement operant conditioning training techniques
25
for working with those killer whales?
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A.
They do.
Q.
And, they do some -- and let me hold on one
second here.
I just want to go briefly into the background
or to understand or so that the Judge understands what
Loro Parque is and how they work with Sea World whales.
So, Loro Parque obtained these whales through a leasing
or breeding loan?
A.
Correct.
10
Q.
And, that was in around 2005, 2006?
11
A.
2006, I think; early 2006.
12
Q.
And, that loan you know was pursuant to a
13
leasing agreement?
14
A.
Yes.
15
Q.
And, I can see you nod your head but the
16
Court Reporter has to write it down.
17
And, before Loro Parque received those
18
whales, there were four Loro Parque trainers that came
19
to Sea World Parks for training from Sea World; is that
20
right?
21
A.
Correct.
22
Q.
And, that is two trainers spent two years at
23
Sea World Texas.
24
A.
Yes.
25
Q.
And, two trainers spent two years at Sea
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World of Florida?
A.
Correct.
Q.
And, that was so they could be trained on the
positive reinforcement operant conditioning whale
training?
A.
Yes.
Q.
And, the Loro Parque trainers already had
8
9
10
11
some experience with marine animals, right?

A.
They were all very experienced marine animal
trainers already.
Q.
So, in coming to Sea World in the United
12
States to be trained, they also learned about all the
13
various types of protocols that Sea World has in
14
training their killer whales.
15
A.
Correct.
16
Q.
And, including any protocols that you might
17
describe as ones ensuring their trainers' safety?
18
A.
Yes.
19
Q.
Now, up until a year ago, there was an
20
experienced Sea World trainer on site in Loro Parque
21
helping them with their training, right?
22
A.
Correct.
23
Q.
And, you've visited -- over the years you
24
25
have made five visits to Loro Parque?

A.
Yes.
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Q.
And that's a "yes"?
A.
Yes, sir.
Q.
I'm not picking on you.
A.
Yes.
MS. GUNNIN:
Judge, may I raise an objection to
questioning on Loro Parque because Loro Parque is
clearly not an issue in this case, and I would like
Counsel to explain the basis for the questioning of a
park not owned by Sea World in a matter that involves
10
Sea World of Florida LLC specifically.
11
JUDGE WELSCH:
12
MR. BLACK:
Mr. Black?
Certainly, Your Honor.
As you
13
know, we issued a 5(a)(1) citation that alleges a
14
recognized hazard by Sea World of Florida.
15
a recognized hazard, one can show that the Employer
16
itself recognized the hazard directly, or you can show
17
that folks in the industry recognized that hazard.
18
To establish
Additionally, I don't even know why I'm having to
19
answer to this objection when we have Sea World of
20
Florida has all these incidents from their own parks and
21
from Loro Parque that they're using to train their own
22
trainers.
23
24
25
JUDGE WELSCH:
Let's move on.

BY MR. BLACK:
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Q.
Now, when you made your -- during your five
visits, you didn't find any deficiencies with how Loro
Parque was applying operant conditioning with the killer
whale?
A.
No, I did not.
Q.
And, in fact, you found quite the opposite;
that they had a very good program?
A.
They do.
Q.
In fact, their operant conditioning program
10
was on par with Sea World's?
11
A.
It's very close, yes.
12
Q.
And, in fact, Sea World removed its
13
experienced killer whale trainer a year ago because that
14
trainer was no longer needed to help in providing
15
guidance to Loro Parque?
16
A.
Yes.
17
Q.
You hesitated there.
18
A.
Well, he left but then I started helping on a
19
more inconsistent basis.
20
Q.
And, that was helping with breeding of killer
21
whales there?
22
A.
It was making sure that they followed the
23
protocols that we have with our positive reinforcement
24
and the proper health care and so on.
25
Q.
So, you took over for the experienced on-
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site trainer not by going onsite but by reviewing from
afar if you will?
A.
Yes.
Q.
Are you still doing that today?
A.
Yes, I am.
Q.
And, Loro Parque's program mirrors Sea
World's program with the killer whales, right?
A.
Yes.
Q.
And, in December of 2009, Brian Rokeach was
10
the Sea World trainer who was stationed at Loro Parque?
11
A.
He was.
12
Q.
And, he was a senior trainer from the Sea
13
World of San Diego?
14
A.
He was a supervisor.
15
Q.
He was a supervisor, I'm sorry.
16
So, in acting at Loro Parque with Sea World's
17
killer whales but with Loro Parque's trainers, he
18
functioned much as a supervisor would at Sea World's own
19
parks?
20
A.
Not necessarily.
21
Q.
He provided -- in animal and killer whale
22
interactions, he functioned much the same way in
23
directing how the interaction should occur and the like?
24
25
A.
His role being the third person there, he was
starting to pull himself out as the day-to-day oversight
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1
2
3
of what we're doing with those animals.

Q.
As Loro Parque came to be even more on par or
doing as good a job as Sea World?
A.
Yes.
Q.
So, as I just said, I guess, in argument to
the Judge, even though Loro Parque is not part of Sea
World or not part of Sea World parks and Entertainment,
you shared incident reports with them, right?
A.
We did.
10
Q.
And they shared incident reports with you?
11
A.
Yes.
12
Q.
And, using a template for incident reports
13
developed by Sea World?
14
A.
Correct.
15
Q.
And, that's because you wanted the
16
opportunity to learn from any incident that could be
17
occurring with killer whales?
18
A.
Correct.
19
Q.
So, that what happened there could be an
20
opportunity for you to learn how to interact with your
21
killer whales back in the States?
22
A.
Correct.
23
Q.
And, even how to keep your trainers safer by
24
learning what there was to learn behaviorally from those
25
incidents?
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A.
Correct.
Q.
And Brian Rokeach, you said he was a
supervisor, right?
A.
Yes, he was.
Q.
And, he was a supervisor in San Diego before
he went to Loro Parque?
A.
Yes, he was.
Q.
And he was a very experienced trainer.
Is
that a fair statement?
10
A.
Yes.
11
Q.
Now, going back to 2007, I believe that's the
12
year you say that Ms. Bovhort was injured?
13
A.
Yes.
14
Q.
And, so can you tell me how she was injured?
15
A.
16
Q.
I would turn to the incident report if I
17
18
thought it was in here.

A.
That's okay.
I can talk to it.
She was
19
working with one of the younger males in the population
20
there.
21
where you're actually riding the whale and coming out of
22
the water.
23
She was practicing doing some standard spy hops
During her particular session, she was not
24
doing the ride correctly.
She had not done it correctly
25
two or three times, and what we know is the killer whale
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then grabbed her and pulled her underwater, grabbed her
by her arm, and at that time we initiated our emergency
response plan, and the animal went to the back pool with
Claudia and then released her and then we got her out of
the pool.
6
7
Q.
And in the process, she sustained some pretty
serious injuries?
A.
She did.
Q.
And, so there was something -- what was there
10
about Sea World's animal training that didn't keep her
11
safe in this instance?
12
A.
13
Q.
And, when I say, "Sea World's training," I
14
understand Loro Parque was applying the same type of
15
operant conditioning, so perhaps a better way of stating
16
that is what is there about the operant conditioning as
17
applied by Loro Parque that wasn't effective in keeping
18
her safe?
19
A.
Well, I still don't understand your question
20
here.
21
work, or are you saying what happened in that event?
22
I'm not sure what you're asking.
23
24
25
Are you implying that the whole program didn't
Q.
Well, do you think that the program worked in
this instance to prevent an injury?

A.
I believe that there were things in the
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session that occurred and it's even noted within the
incident report that we could have read better, that
could have prevented that animal from doing what it did.
4
5
Q.
So, the trainer or somebody assisting the
trainer made some mistakes?
A.
We believe so.
Q.
They failed to read certain cues?
A.
Well, we think so.
We weren't there on site,
but we can basically go with what the observation was.
10
The animal had failed several times and through that
11
failure, it apparently frustrated the animal.
12
Q.
And, when you say, "apparently frustrated the
13
animal," you say that based on the fact that the animal
14
took her underwater?
15
A.
Yes.
16
Q.
Is that one definition of frustration?
17
A.
Yes.
18
Q.
So, you don't know what the animal was
19
thinking when it took her underwater, but you know
20
that's how the animal acted?
21
22
23
24
25
A.
That can be one of the outcomes of
frustration, yes.
Q.
Let me have you turn to -- well, before you
do that, let me ask you a couple of questions.

There was an incident in December of 2009 at
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Loro Parque.
Parque as Sea World's trainer, had supervisory trainer
on site?
A.
Yes.
Q.
And, he was actually involved in the
Brian Rokeach, who was serving at Loro
interactions which the incident occurred, right?
A.
Yes, he was.
Q.
And, this incident had a very bad outcome?
A.
Yes, it did.
10
Q.
In fact, the trainer was killed by the whale
11
he was interacting with?
12
A.
Yes.
13
Q.
And, that was just two months before Dawn
14
Brancheau was killed at the Florida park, right?
15
A.
Yes.
16
Q.
And, let's, if we could, turn to that
17
incident report, and I think if I'm not mistaken it's
18
been -- if you would turn to the page at the bottom,
19
Judge and Mr. Tompkins, on Sea World 2722, the lower,
20
right-hand corner?
21
A.
I see it.
22
Q.
And, the incident report goes from Page 2722
23
I have it.
to 2728; is that right?
24
A.
Correct, yes.
In my book it does.
25
Q.
And, now, you said this is a form or a
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template developed by Sea World that's used on this
incident report, right?
A.
Yes, sir.
Q.
And, just so the Court will understand how
incident reports work or what sort of information is
contained in them, this indicates that the park is Loro
Parque there, right, on the very first page of this
report?
A.
Correct.
10
Q.
And, with 98 or 101 or whatever the number is
11
of incident reports, all but three of those would
12
instead say Sea World Park, California, Texas, Florida
13
or Ohio, right?
14
A.
Correct.
15
Q.
And, the stadium Orca Ocean that's what they
16
had at Loro Parque; that's the main show stadium, right?
17
A.
It is.
18
Q.
Similar to the Shamu Stadium?
19
A.
Correct.
20
Q.
And, then, the report indicates what date it
21
was prepared, and what date does it indicate that it was
22
prepared?
23
A.
12/24.
24
Q.
Of 2009?
25
A.
Yes.
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1
2
Q.
And, that's the same date as the incident
occurred, right?
A.
Correct.
Q.
And, the time of the incident, it says, 10:25
in the morning?
A.
Correct.
Q.
And, then, it says trainer involved, and it
says Alexis Martinez?
A.
It does.
10
Q.
And, then, it lists his trainer level, and it
11
says he was a senior trainer?
12
A.
Yes.
13
Q.
And, then below that, it lists the trainers
14
who were present, and the first one it lists is Brian
15
Rokeach with the level supervisor, right?
16
A.
Correct.
17
Q.
And, then, it lists, it looks like, five
18
other trainers besides those who were present, right?
19
A.
Correct.
20
Q.
And, that's a normal way that these incident
21
reports are designed.
They list the trainer involved as
22
well as the trainers present?
23
A.
Yes.
24
Q.
And, then, there's a part about mid-page on
25
Page 2722 that says "length/type of session," and it
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says, "Ten minutes learning session"; do you see that?
A.
Yes.
Q.
And, Sea World and Loro Parque define their
sessions as being particular kinds of sessions, right?
A.
Yes, sir.
Q.
And this acronym "HELPERS" keeps sticking in
my mind of husbandry sessions?
A.
Husbandry, exercise, learning, playing and
10
Q.
I can't remember what the "R" is?
11
A.
Relationship.
12
Q.
So, this was a learning session?
14
A.
Yes.
15
Q.
And, then, there are show sessions?
16
A.
Correct.
17
Q.
Which are performances?
18
A.
Yes.
19
Q.
And, then, there are relationship sessions?
20
A.
Okay.
21
Q.
And this was a ten-minute session here,
13
22
show.
This was
"L."
right?
23
A.
Yes, it was.
24
Q.
And, then, it lists the animal involved, and
25
it lists Keto, K-e-t-o, right?
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A.
Yes.
Q.
And it says he's an male Orca whale?
A.
Yes.
Q.
And, then, there's something that says last
rating for the animal and it says "100 percent."
see that?
Do you
A.
Yes, I do.
Q.
Can you explain for us what that is?
A.
That means the last session went extremely
Q.
What would be a zero percent and what would
10
11
well.
12
be a hundred percent?
13
reviewing this take out of this?
14
A.
What information does somebody
Based on the animal records, it's balance of
15
correct behaviors and incorrect behaviors, and he
16
apparently did everything correct.
17
18
19
20
Q.
Do we know from this how many behaviors at
last rating earned him 100 percent?

A.
They got that number from the animal records
that day.
21
Q.
And, I'm not saying it's wrong.
22
A.
No, I understand.
23
Q.
It's just that we can't tell from the
24
incident report how many behaviors that was that they
25
performed?
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A.
No, I don't know offhand.
Q.
And, then, there's a water work rating?
A.
Yes.
Q.
And that's also 100 percent?
A.
Correct.
Q.
And, we've had a discussion of water work
here during this hearing.
8
9
10
The water work rating, why is that provided

as a separate item on the incident report?
A.
We feel like knowing how the animal reacted
11
with us in the water in its last session may play an
12
important part.
13
Q.
Does it have any significance or indicator
14
that water work has the potential to be more dangerous
15
than dry work?
16
A.
Not necessarily.
17
Q.
Not necessarily but in providing that
18
information, was an intent to provide that information
19
because of the different risks involved in water work?
20
A.
It's a different environment from a dry
21
interaction that we do on land, and we felt that's a
22
notable thing to be aware of.
23
24
25
Q.
But, there's nowhere on here that it says
last dry work rating, right?

A.
No, there's not.
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1
2
3
Q.
So, it's notable for some reason.
Water work
is more notable than dry work for some reason?

A.
Well, we just feel like it's an important
part of the animal's daily work schedule, and we want to
know what it did the last time.
6
7
Q.
But, what is it about water work that makes
it more notable than dry work?
A.
I don't have an answer for you on that.
Q.
So, it's not because -- you don't know
10
whether it's because water work is a more hazardous
11
activity than dry work?
12
A.
No, it's not.
13
Q.
Pardon me?
14
A.
No, that's not the case.
15
Q.
That's not the case that it's more hazardous
16
to do water work than dry work?
17
A.
No, it's not.
18
Q.
And, then, it says when you last worked with
19
this animal and when you last worked with this animal in
20
the water, right?
21
A.
Right.
22
Q.
And, then, at what location and the location,
23
and it says "A pool," A being the letter "A" much like
24
the Sea World has a letter designations for their pools?
25
A.
Right.
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Q.
And then it has a little diagram, and it says
"Account for the placement of the animals in the system
immediately before the incident occurred"?
A.
Um-hum.
Q.
And, that's the same kind of thing that if
Sea World had prepared this report, it would show the
same type of information?
A.
Yes.
Q.
And, then, if we turn to the next page, it
10
says -- this is Page 2723 -- "list any observed social
11
interaction and/or behavioral precursors prior to the
12
incident, including related behavioral history; for
13
example, fluke slapping, vocalizing, head bobbing,
14
sitting in the corner after first SD type act,
15
etcetera"?
16
A.
Yes.
17
Q.
And, this is referring to whether there might
18
be something that gave an indication that this incident
19
could later follow?
20
A.
Yes.
21
Q.
In other words, this is the history before
22
the incident, things that a trainer might have observed
23
in order to either avoid the incident, prevent the
24
incident or take some sort of action to prevent the
25
incident?
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A.
Yes.
Q.
And, then, there is an analysis here, and it
goes through an analysis.
in a very good mood today," right?
A.
JUDGE WELSCH:
7
8
9
It says, "Keto appeared to be
Yes.
whole document?
You're not going to read this
I can read the document myself.
MR. BLACK:
Judge, I'm trusting that you are
fully capable of doing that.
10
JUDGE WELSCH:
11
BY MR. BLACK:
12
Q.
Thank you.
And, so when it describes, it describes the
13
sessions that he had and says prior to the incident
14
there were no problems, no apparent activity with the
15
whale in the back pool, right?
16
A.
Right.
17
Q.
And, then it goes through everything that it
18
can to explain possible causes for what happened.
19
that the intent of this portion?
Is
20
A.
It is.
21
Q.
The third paragraph from the bottom, it says:
22
"Keto has a history of refusing or avoiding
23
areas of the pool where he has received what he
24
perceives as all of his food in that area."
25
Right?
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A.
Yes.
Q.
And, I note again you say, "what he
perceives," but you don't know what he perceives, right?
4
5
A.
Well, based on his reaction to certain
behaviors, we can predict.
I mean, I think we're playing with words
here.
goes back to the fact that we can predict certain
outcomes, based on what we've seen with the animal.
10
11
12
We're not trying to mind read; but, again, it
Q.
So, you're interpreting what you think the
animal is thinking?
MS. GUNNIN:
Judge, I'm going to object to that
13
question.
14
He's asking him about specific words that are used in
15
the report, that he has no foundation that he wrote.
16
He's not establishing who wrote this report.
JUDGE WELSCH:
I'll sustain that.
I think I
17
know you're going a little broader than what is in this
18
report, but your questions seem to be directed more to
19
the report.
20
And you didn't write this report?
21
THE WITNESS:
No, sir, I didn't.
22
JUDGE WELSCH:
And, you weren't present at the
23
site when this event occurred?
24
THE WITNESS:
25
BY MR. BLACK:
No.
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Q.
And, so you would use different language than
that if you were writing this report about the whale
perceiving this or the whale thinking that?
A.
I don't know how I would react to that or how
I would write it without actually being there and
observing it.
saw, and they wrote down what they thought they saw.
8
9
10
11
12
13
Q.
I have to trust that they saw what they
When we look at some of the incident reports,
those incidents you were involved in, you don't think

you would use that kind of language, right?
A.
I could.
I don't know how to answer that.
This is their perception of it.

Q.
And, then, it indicates on the very last line
14
of this second page of the report that prior to moving
15
to Loro Parque, Keto had four documented corporate
16
incident reports, and it lists the dates of those,
17
right?
18
A.
Yes.
19
Q.
And, we should be able to find each of those
20
in Complainant's Exhibit 6, the big binder, correct?
21
A.
Yes.
22
Q.
And, then, if we turn to the third page of
23
24
25
this report, Page 2724, it says:

"List in order of occurrence the following
elements of the session, including the placement
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of incident."
Do you see that at the very top of the page?
A.
Yes.
Q.
And, then, it says -- it has some columns,
and the first column says "SD."
A.
to the animal.
Q.
What that means, it's a signal that you gave
It means that you have asked in some way the
animal to do something?
10
A.
Correct.
11
Q.
So, you have asked the animal to swim here or
12
come here or go there?
13
A.
Yes.
14
Q.
So, if we see in these reports the term,
15
"SD," we'll understand that just means signal?
16
A.
Yes.
17
Q.
And, then, it indicates the observed
18
behavior.
And, I take it that operant conditioning --
19
well, in describing how the interaction occurs, you
20
described it as there's a signal and the whale did
21
something.
That's the observed behavior?
22
A.
Right.
23
Q.
And, then, there's the trainer's response,
24
and the response could be to feed the whale or briefly
25
ignore the whale, or give some sort of other reaction,
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some sort of other response so the whale that the
trainer thinks will make it more likely that they will
engage in that behavior again?
A.
Correct.
Q.
Have I gotten that right?
A.
Yes.
Q.
And, the last column says "Animal Response,"
and that's a description of what the trainers see in the
animal during all of this, right?
10
11
12
A.
That's how the animal responds to that
reinforcement or what you previously just did.

Q.
And, in this particular incident, the
13
analysis seems to be that the trainer made some
14
mistakes, is that right?
15
agree with that?
As a bald statement, would you
16
A.
Correct.
17
Q.
The trainer should have seen some things or
18
taken some different actions in order to prevent this
19
event, right?
20
A.
We believe so.
21
Q.
And, that's from having reviewed what
22
happened in this event, based on the witnesses who
23
described the event, right?
24
A.
Correct.
25
Q.
And, so the summary in this case was that the
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trainer, Brian Rokeach -- well, I'll tell you what. The
mistakes are described on the fourth page of this
document.
That's the analysis, right?
A.
Yes, sir.
Q.
And, so on the third page, it indicates that
the whale did something it says incorrect in the second
column, the observed behavior.
Do you see that?
A.
Yes, I do.
Q.
So, the signal "stand on spy hop," is given
10
and the whale did incorrect, and then it says, "high
11
criteria but not straight.
12
see that?
Trainer fall off."
13
A.
Yes, I do.
14
Q.
So, what does "incorrect" mean?
15
16
17
18
19
20
21
22
23
Do you
Does that
just mean wrong?

A.
It means he did not reinforce
the animal for doing that behavior.

Q.
Okay, I thought that was what the third
column was.
A.
The criteria of the behavior was not
acceptable to us.
Q.
So, I guess the term "wrong," means the whale
didn't do what was asked of the whale?
24
A.
Correct.
25
Q.
And, so in response, the trainer took an
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action.
reinforced with large snowball."
there and explain what that means?
A.
It says, "Returned to stage with Keto and

Can you help us out
The whales, of course, are not just treated
with reinforcement.
An ice ball is just something where we take crushed ice
and put it together in a ball, and they enjoy it,
chewing on ice.
given after that behavior.
10
11
12
Q.
So, that was the reinforcement that was
Because it was incorrect, the whale didn't
get fish or food.

A.
There's a secondary reinforcement.
It just got an ice ball.
No, it responded correctly.
The thing that
13
people need to understand is we have a way of reacting
14
to our animals when there's something incorrect.
15
apply something called least reinforcing scenario.
16
make a long term short, it means when an animal doesn't
17
get reinforced for a behavior, we allow them to come
18
back, and they come back relaxed and they're willing to
19
move on to the next behavior.
20
We sometimes will reinforce it.
We
To
So, you're
21
not reinforcing the incorrect behavior, you're
22
reinforcing the response of the whale reacting in a
23
positive way for its not receiving reinforcement for the
24
behavior it just did.
25
Q.
So, if the whale comes back relaxed, do you
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mean relaxed from the incorrect behavior?
A.
Correct.
Q.
Or relaxed from the ignoring, the least
4
5
reinforcing scenario?
A.
They come back and they wait for the response
of the trainer, and if they are relaxed for a certain
period of time -- it's a short period of time, it's only
about two or three seconds -- if they relax and if
they're willing to move forward to the session with a
10
good attitude and they're nice and relaxed, we're on a
11
variable schedule to reinforce it so animals understand
12
it's okay to fail.
13
Q.
14
to fail?
15
A.
So, the animal will understand that it's okay
They learn that if you don't get a
16
reinforcement for the previous behavior, you don't need
17
to get frustrated that you didn't get reinforcement for
18
the previous behavior.
19
Q.
And, then, if the animal comes back relaxed,
20
again that's an observation where you're saying the
21
whale is relaxed because they're not exhibiting
22
certain--
23
24
25
A.
They're very easy to read.
An inexperienced
trainer can read it very quickly.

JUDGE WELSCH:
But, if the whale comes back not
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1
2
relaxed, do you give any reinforcement at that point?

THE WITNESS:
No, we don't.
I don't want to
reinforce the whale to be in a bad mood.
is we'll just move on.
behavior and totally ignore it.
JUDGE WELSCH:
What we'll do
We'll just move to the next
So, when they do an incorrect
behavior, you don't give them any reinforcement, but if
they appear after doing an incorrect behavior and in
your terms relaxed, they might get a reinforcement?
10
THE WITNESS:
That's exactly right.
11
JUDGE WELSCH:
For being relaxed and willing to
12
go on?
13
THE WITNESS:
Yes, sir, that's perfect.
14
JUDGE WELSCH:
But, if they come back, and
15
16
they're still not relaxed, they get nothing?

THE WITNESS:
Correct, and we re-evaluate and
17
decide either we move on or we ignore it or we stop the
18
session, whatever the case might be.
19
JUDGE WELSCH:
20
BY MR. BLACK:
21
Q.
Thank you.
Earlier, Mr. Tompkins, we had talked about
22
predictability and 98 percent or more than 98 percent,
23
so is this one of the instances where we can talk about
24
98 percent to say that it's 98 percent of the time when
25
we do that LRS, the whale is going to come back relaxed?
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A.
When I quoted you that number, if you average
out what we do with our animals in a session, if you add
up all the behaviors that we ask our animals to do, and
you look at the ones that they've done correctly and the
ones they do incorrectly, we run on an average of 98
percent correct within a session if you average them all
out.
8
9
10
That's the number that I quoted you.

Q.
So, that would be -- on this Page 2724, that
would be the column where you indicate "observed

behavior correct/incorrect"?
11
A.
Correct.
12
Q.
And, if you average that over all of Sea
13
World's interactions with its killer whales, you come up
14
with 98 percent of the time it's correct?
15
A.
Yes, sir.
16
Q.
Now, that's an estimate, right?
17
A.
Yes, it is.
18
Q.
That's based on having looked at records, but
19
is it based on any statistical sampling of the records?
20
A.
It's pulled directly off our records that we
21
have.
We keep those animal records we were talking
22
about.
23
a time period we actually counted every single behavior
24
that an animal did, and we accurately put either correct
25
not correct and for a period of about three or four
We keep track of what the animals do.
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406
years, we kept track of that very, very carefully.
during that time period, we found our percentage that I
just quoted to you.
4
5
Q.
So, that percentage comes from some period of
time when you actually tracked it?
A.
Yes, sir.
Q.
What period of time was that?
A.
It was approximately five years ago.
And,
recordkeeping has changed since then.
We don't keep
10
track of how many behaviors they do right.
11
overall behavioral rating of the session now.
12
Q.
13
percent safe?
14
A.
15
JUDGE WELSCH:
Our
We keep an
So, it's your belief that they're still at 98
Absolutely.
On this particular day with
16
this particular whale, it's identified -- I was just
17
looking at it and just kind of counted it up -- it looks
18
like this whale was dealing with 14 different behaviors
19
of which -- or maybe it's the other way around -- 14
20
behaviors that you're looking at of which six were
21
incorrect.
22
that particular session with that particular whale.
So, it's just barely above 50 percent for
23
THE WITNESS:
You're correct.
24
JUDGE WELSCH:
But, you don't look at it on an
25
individual session basis, you look at it based on all
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the interactions?
THE WITNESS:
Well, again, it was averaging out.
Obviously, in this particular session, that was not the
case.
MS. GUNNIN:
JUDGE WELSCH:
Judge, may we have a break?

Let's take about a five-minute
break, and let's be back at ten minutes until 4:00.
10
11
JUDGE WELSCH:
Mr. Tomkins, I'll remind you, you're still under oath.
12
BY MR. BLACK:
13
Q.
Mr. Tompkins, so this incident occurred, and
14
if you would tell us what happened to Mr. Martinez.
15
That is, just sort of briefly just so we don't have to
16
read this whole report.
17
JUDGE WELSCH:
18
MR. BLACK:
19
Mr. Martinez?
Alexis Martinez, the trainer that
was killed, Your Honor.
20
JUDGE WELSCH:
Okay, thank you.
21
THE WITNESS:
He was practicing some in-water
22
behavior, this particular whale.
23
whale to different reinforcement things in the pool for
24
different people to reinforce him.
25
He was pointing the
He got back out of the water to reinforce him,
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jumped back in.
go do a haul-out, which is the whale actually brings you
up on stage.
He was doing an underwater food push to
For whatever reason, he broke from the whale
probably because the run was not appropriate, so he
brought the whale back to the surface.
At that particular time, the whale was given a
call back signal to come back to the stage.
came back to the stage, he was with his control trainer
10
at the time.
11
over and pushed Alexis under water.
He broke from the control trainer, went
12
BY MR. BLACK:
13
Q.
14
15
16
17
18
When he
When you say he pushed him under water, he
actually struck him in the chest?

A.
He hit him in the chest and pushed him
underwater.
Q.
And, Mr. Martinez died from massive internal
bleeding, right?
19
A.
Yes.
20
Q.
And, this happened on December 24th, exactly
21
two months before Ms. Brancheau's death, right?
22
A.
Yes.
23
Q.
And, after this happened, Sea World learned
24
25
of it, I assume, pretty quickly?

A.
We did, yes.
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Q.
Within minutes?
Hours?
A.
I don't remember the time frame but very
quickly.
Q.
And, as soon as Sea World learned that, all
the Sea World Parks pulled their trainers out of the
water?
A.
Yes.
Q.
And, they pulled them out of the water
because that's what you do when you're not quite sure
10
what's going on; what you might need to learn from an
11
incident, right?
12
A.
We felt it was the appropriate response.
13
Q.
So, you pull them out of the water until
14
you're able to learn from the incident and learn what
15
happened?
16
A.
Yes.
17
Q.
Because it's the safest thing you can do is
18
pull your trainers out of the water until you know that
19
there's something going on that you need to learn?
20
21
22
A.
Well, for us it was an appropriate reaction,
Q.
And, then, Sea World had training -- or,
yes.
23
excuse me, Sea World corporate officials, including
24
yourself, evaluated this incident, right?
25
A.
We did, yes.
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Q.
Either by telephone or gathered together to
talk about it?
A.
Yes.
Q.
And made a determination that you needed to
provide a presentation to all of the Sea World trainers
at the Sea World Parks, the Sea World killer whale
trainers?
A.
We did.
Q.
And, Mike Scarpuzzi, who is Mike Scarpuzzi?
10
A.
He's the Vice President of Zoological
11
12
13
Operations for Sea World of California.

Q.
And, so he was sort of over all of the
animals that are at that Sea World of California park?
14
A.
Yes, he is.
15
Q.
So, he would be the top person who would be
16
in the line or chain of command with the trainer, Brian
17
Rokeach, correct?
18
A.
Yes.
19
Q.
And, so Mr. Scarpuzzi went around to each of
20
the three Sea World Parks and made a presentation about
21
the incident, right?
22
A.
He did.
23
Q.
And, he showed videotape actually of the
24
25
incident, right?
A.
Yes, he did.
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1
2
Q.
And, Loro Parque had this incident that
captured it on videotape, your film?
A.
Yes, they did.
Q.
And, to discuss with the trainers the
evaluation by Sea World of what happened, right?
A.
Yes, he did.
Q.
And, what Sea World thought went wrong?
A.
Yes.
Q.
And, what Sea World thought went wrong was
10
that there were mistakes made, right?
11
A.
Yes.
12
Q.
And, that at least the trainer -- well,
13
14
15
Trainer Brian Rokeach made some mistakes, right?

A.
When you read the report, it's both Alexis
and Brian.
16
Q.
And the mistake that Alexis made was, what?
17
A.
Excuse me?
18
Q.
What was the mistake that Alexis made?
19
A.
In reading the report and based on what they
20
assessed and what they told us, there were a lot of
21
trainer exchanges, meaning he pointed the whale to other
22
trainers and other places.
23
the whale, he pointed him to other trainers that
24
reinforced him.
25
Instead of him reinforcing
I don't think any one of these things caused
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the incident, but it's many little things put together
that probably elevated Keto's emotions.
So, that's what we think started it.
I think
bringing the whale back to stage, who apparently was
fixated at staying with Alexis, and while the whale was
being held at stage, Alexis tried to scull out next to
the whale, and we felt like that was probably not the
appropriate thing to do.
9
10
Q.
That Alexis should have been directed to exit
at another location, not near the whale?
11
A.
That would have been a better option.
12
Q.
Or to stay in the water until the whale
13
somehow was under firm control?
14
A.
We believe that might have changed the event.
15
Q.
So, Alexis made some mistakes?
16
A.
Yes.
17
Q.
Made some errors in judgement and so did Mr.
18
Rokeach?
19
A.
Yes.
20
Q.
And, so their errors led to events in which
21
Alexis was killed?
22
A.
Yes.
23
Q.
And, they were doing their best, one would
24
assume, to apply Sea World's training protocols and ways
25
of interacting or dealing with the whale, right?
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A.
We believe so.
Q.
I mean, you don't think that they were
intentionally doing anything wrong?
A.
No.
Q.
That would be ridiculous.
So, despite trying to do everything right,
follow Sea World's training protocols, we have this
tragic outcome in this interaction with a killer whale
in the water with a trainer?
10
A.
Correct, yes.
11
Q.
And, so after this outcome, Sea World pulls
12
its trainers from the water?
13
A.
Yes.
14
Q.
And, goes around and provides more training
15
to its trainers?
16
A.
Correct.
17
Q.
Is that a fair characterization?
18
A.
Yes.
19
Q.
And, what changes to Sea World's protocols
20
21
were made as a result of this incident?

A.
No protocols were changed based on the fact
22
that we felt the majority of the mistakes were human
23
error.
24
trainers exactly what was done and the outcome of those
25
responses from the trainers, and to make sure that
The training came from explaining to the
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everybody understood what to do if that situation ever
occurred again.
Q.
So, it was sort to fine tune the training
program, if you will.
That is, to try and do it a
little bit better the next time to avoid that terrible
outcome, right?
A.
Yes.
Q.
And, it wasn't a wholesale reevaluation of,
9
10
11
"Geez, does this training program provide sufficient

safety to the trainers?"
A.
No.
We did not -- we did take time to really
12
evaluate that particular situation and what we needed to
13
do to communicate effectively to the trainers so
14
everybody could learn from that particular session.
15
Q.
And, I'm not questioning whether you actually
16
provided the best analysis of what happened to the
17
trainer.
18
My question really is Sea World didn't
19
consider changing the way it interacted with killer
20
whales on a general basis when it saw human error in its
21
training program could lead to this trainer being
22
killed, right?
23
A.
We did make changes in the sense that we
24
spent a lot of time communicating to our employees,
25
especially our killer whale trainers, the outcome of
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when you make a mistake.
Q.
Okay, you communicated to them what; that if
you make a mistake, something really terrible could
happen?
5
6
7
A.
If you a make enough of the wrong ones, it
Q.
Okay.
can.
And, is that the only time that
something bad could happen?
mistakes for it to be bad?
10
A.
You have to make a bunch of
No, I think what I'm saying is this event was
11
tragic, no doubt.
12
life, ever.
13
through the analysis, on which we spent a great deal of
14
time, as we do with all of them, and particularly we
15
really worked hard making sure we tried to understand
16
everything that occurred.
17
all events.
18
I mean, we have never lost a human
And we took it very, very, seriously.
And
You can learn from any and
There was no procedure that was broken, no
19
rule that people had judgement calls, and there was
20
enough of them made where this incident occurred.
21
We have rarely, if any, ever had a human
22
death that we felt like we wanted to spend a lot of time
23
really communicating this with the employees.
24
25
Q.
But, never having experienced this, and now
you have experienced it, and it doesn't sound -- it
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certainly wasn't a situation where you reconsidered
ought we to be using this training of the whales as the
way that we keep people safe?
A.
No, we didn't reevaluate the whole process.
Q.
You did not reevaluate the whole process?
A.
No.
Q.
That's based on your view that this only
8
9
10
happened once now where somebody has been killed?

A.
Correct, and we knew -- we had a high degree
of confidence in what caused the incident.
11
Q.
Human error?
12
A.
Correct.
13
Q.
And, human error, of course, that is a
14
frequently occurring event in just our everyday life.
15
Human make mistakes, right?
16
A.
I guess you could say that.
17
Q.
I mean, it's predictable that people are
18
19
going to make some number of mistakes?

A.
It is but like all living creatures, we learn
20
through our mistakes, and you get to a point as you
21
mature and you get a higher skill set, you make fewer
22
mistakes if any at all.
23
Q.
Well, I haven't reached that level in life,
24
but I suppose I can aspire.
25
reached that level in your life?
CARLIN ASSOCIATES
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A.
No.
Q.
Even after --
A.
You're constantly learning.
Q.
So, the evaluation is that mistakes could
happen, mistakes could have tragic outcomes, but they
haven't happened that much, so we're doing okay.
that a fair characterization?
8
9
10
11
12
A.
Well, I don't want to downplay.
Is
That makes
it sound like we didn't realize the severity or the

tragedy that was in front of us.
Q.
And, I don't mean to suggest that you didn't.
So, please don't take my question quite that way.
13
My question instead is even despite this
14
terrible event, Sea World didn't reconsider whether
15
there might not be a better way to prevent a recurrence
16
of this kind of event, right?
17
A.
Right.
18
Q.
Didn't consider permanently pulling their
19
trainers from water work, right?
20
A.
Not permanently.
21
Q.
Or even on a long-term basis until they found
22
something else that would make it as safe to be in the
23
water as to not be in the water?
24
25
A.
Nothing up to that point would lead us to
believe we needed to.
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Q.
Up to the point of Mr. Martinez's death?
A.
Yes, and although that was a tragedy, all of
our experience and our success and our very high degree
of success rate with our animals indicated we didn't
need to respond that way.
Q.
So, how many bad events would have to happen
before you would consider that you needed to respond
that way?
A.
Again, that makes it sound like we need many
10
deaths to react to something, and although there was a
11
tragedy involved with this, we looked at it as a
12
behavior; you know, what exactly happened during that
13
event.
14
caused that.
And, we were very confident, we felt, what
15
There wasn't a breakdown of a process or the
16
use of applied animal behavior or an SOP or any of those
17
things.
18
and we made sure that we communicated and made sure that
19
that human error would not be duplicated again in that
20
particular situation.
21
Q.
We recognized that human error was involved,
So, the learning lesson from that was to not
22
have too many control switches and not have trainers
23
exit from the water when the whale is not under full
24
control, right?
25
A.
Yes.
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1
2
Q.
And, also not to have the trainer exit from
the water near the whale?
A.
Correct.
Q.
Were there any other lessons that were
learned from that?
A.
Those were the primary ones.
Q.
So, you said it wasn't a breakdown of the
process; that it was just showing that if errors are
made, that this is what could happen.
10
A.
Well, we also recognized that although we may
11
have had an oversight at Loro Parque, they were their
12
own entity, operating themselves and overseeing
13
themselves, and based on our Sea World system, we had
14
great confidence in and still are very successful with
15
to a high degree.
16
radical changes.
17
Q.
We didn't feel like we needed to make
But, I didn't see anything in this incident
18
report or in hearing your earlier testimony that there
19
was a problem with the way that Loro Parque was working
20
generally in their process of animal training?
21
A.
No, there's not.
Again, it's human error.
22
That doesn't mean the process broke down.
23
there was a human error involved.
24
25
Q.
It means
Human error by one of Sea World's own
supervisors?
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A.
Yes.
Q.
So, at the highest very high levels of animal
3
4
trainers?
A.
Brian had a lot of experience in animal
training, and he had four previous years of working with
killer whales.
Yes, he had experience.
Did he make a mistake?
We believe so.
It's
hard for me to sit here and judge and blame and all that
more than we try to learn from this event.
10
Q.
I'm not judging and blaming.
I'm evaluating.
11
You have Complainant's Exhibit 6, 98 or 110 or whatever
12
incident reports, and those are replete with errors made
13
by trainers, right?
14
A.
They are.
15
Q.
I mean, they are judgements of what the
16
trainers did wrong and evaluations of what the trainers
17
did wrong, right?
18
A.
Correct.
19
Q.
So, there had been numerous times that the
20
system shows that there are errors, some of which led to
21
bad events?
22
A.
It did and, again, at some point, we've got
23
to analyze those 98 and realize that not all of them
24
were outcomes of somebody doing something wrong.
25
of them were just unusual behavior that we noted that
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421
didn't directly go to anything negative in the
environment at all.
3
4
5
So, we ought to be careful saying that 98 bad

things occurred, that's not necessarily the case.
Q.
I'm not saying there were 98 deaths.
I mean,
if there were 98 deaths, we wouldn't be here.
probably would have shut its doors.
these bad things have happened or these incidents would
show repeatedly the possibility for human error leading
10
Sea World
But, at some level
to injury or even death, right?
11
A.
Yes, sir.
12
Q.
Now, the mistake, one of the mistakes that
13
was made was a mistake that hadn't been seen before.
14
This was the first time that we saw this type of trainer
15
mistake, correct?
16
A.
Which one do you mean?
17
Q.
The mistake of a trainer swimming toward the
18
whale or swimming toward the stage to exit the water,
19
that wasn't the first time it occurred?
20
A.
There's no event, there's no incident that
21
has that written on it, but experienced trainers know
22
that when you have a killer whale that may be
23
frustrated, you definitely don't want to swim towards
24
that whale.
25
Q.
That's a kind of common training practice.
It's something that you train your trainers
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to know to not exit the water near where the whale is?
A.
We talked about it and trained it, yes.
Q.
And, in talking about it, you make sure that
trainers, in fact, know this really could be a really
bad thing to try to exit the water -- in a situation
where the whale exhibits aggression, exiting the water
near the whale while the whale is acting aggressive?
8
9
A.
I have to be careful in saying there's a
black and white rule any time you work with animals.
10
Again, it's conceptual.
11
environment.
12
whale is?
13
perceive the animal being frustrated?
14
things need to be taken in context.
15
It's what is occurring in the
How many whales do you have?
What is it you're doing?
What the
Do you really
All of those
There is a lot of decision making being made
16
there.
17
never swim out next to a whale, that is not necessarily
18
the case.
19
to unless there's something extenuating where you have
20
to.
21
22
23
So, to make a black and white statement that you
More often than not you're probably not going
Q.
What would be extenuating that you might have
A.
Well, if, for instance, if you don't read
to?
24
that a killer whale is frustrated and you swim out and a
25
whale butts you or something like that.
CARLIN ASSOCIATES
I mean, I don't
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423
know how to answer that.
animal training.
general idea and the protocol you would follow in most
situations, and it's up to you to analyze the
environment, what's happening in that environment and
make your best judgement call.
Q.
There is no black and white in
All I can do is give you a rough
Now, in 2006, there was an incident involving
Brian Rokeach, this very same trainer, and a whale named
Orkid in Sea World of California, right?
10
A.
Yes.
11
Q.
You've seen the videotape of that incident
12
which Sea World furnished to the Government in this
13
case, right?
14
A.
Are you sure it's Brian Rokeach?
15
Q.
Well, yes.
16
A.
In 2006?
17
Q.
Yes, sir.
18
A.
With Orkid?
19
Q.
I am a hundred percent confident.
20
A.
Okay.
21
Q.
Are you familiar with the incident in which
22
23
24
25
Brian Rokeach was pulled underwater by Orkid in 2006?

A.
I am but I would like to go to the incident
report and actually look at it if that's possible.

Q.
Certainly, and let me show you.
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MR. BLACK:
BY MR. BLACK:
Q.
1150.
If I might approach, Your Honor.
I'll have you look in here, but it's Page
There are lots of skips in the numbers.
A.
Yes.
Q.
And, this is another incident report, same
sort of format as the incident report involving Alexis
Martinez?
A.
Yes, it is; the same type.
10
Q.
And, this happened at Sea World of California
11
in November of 2006?
12
A.
Yes.
13
Q.
It was a couple of weeks before, another
14
incident involving a killer whale in California in which
15
a trainer had some problems in the water with the whale,
16
right?
17
A.
Yes.
18
Q.
Now, if you look at the pages in this -- I
19
guess you can turn to Page 1151, the second page, and it
20
indicates rather than saying "incorrect," there's some
21
-- the signal given is, it says "hand slap."
22
Now, that first time that it says "hand
23
slap," that was because the trainer in the water got
24
three quarters of the way towards the stage -- excuse
25
me, the whale got three quarters of the way toward the
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stage and then slammed towards trainer, Brian, in the
water, right?
A.
Um-hum.
Q.
That's a "yes"?
A.
Yes.
Q.
And the trainer on stage attempted to recall
Orkid, the whale, by using a hand slap, right?
A.
Yes.
Q.
And tried it repeatedly without success?
10
A.
Well, it eventually did respond to the hand
12
Q.
It did eventually?
13
A.
Yes.
14
Q.
It ignored it, it says here, the first four
11
15
slap.
hand slaps and the tone, right?
16
A.
Yes.
17
Q.
And, ignored, I take it -- I mean, you didn't
18
use the word, "incorrect," but that would be incorrect,
19
wouldn't it?
20
A.
Correct.
21
Q.
And, if the whale is ignoring you, I guess
22
you can't really give it an LRS because it's not paying
23
any attention to you anyway, right?
24
A.
Correct.
It's not at stage.
25
Q.
And, then, in one of these it says, "signal,
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tone," and he ignored the tone and continued to pull
Brian underwater, right?
A.
Yes.
Q.
And tone, what does "tone" mean?
A.
It's an underwater tone.
thing as our hand slap.
and come over here to the stage.
8
9
10
Q.
It means the same
It means stop what you're doing

It's a call-back tone.
So, now, we have five instances where the
whale ignored the call back and continued to pull Brian

underwater, right?
11
A.
Yes.
12
Q.
And, then, when you see the account or
13
analysis -- well, there's an account and analysis on the
14
third page, on Page 1152.
15
A.
Okay.
16
Q.
And, it gives a complete account of the
17
incident, right?
18
A.
Yes, it does.
19
Q.
And, it indicates there that Orkid -- I'm
20
reading I think it's the tenth line down in that account
21
-- and it says, "Orkid changed direction toward Brian as
22
he began to swim toward stage."
Do you see that?
23
A.
Yes.
24
Q.
So, Brian has now swam towards the stage to
25
exit the water?
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A.
Correct.
Q.
Am I reading that right?
A.
Yes.
Q.
So, now, Brian is trying to exit the stage in
an area where he is closer to the whale rather than
further away from the whale?
A.
It's not uncommon when whales are performing
correctly to dive off and swim in next to a whale, or
even if your whale is at stage, you swim next to the
10
whale and actually get out at stage next to the whale.
11
It's a very common practice.
12
Q.
But, in this instance now, Brian is trying to
13
get out of the water near the whale which is very
14
similar to what happened four years later, three years
15
later?
16
A.
Well, the difference here is there was --
17
this animal was working.
18
ride correctly, and it was stage called.
19
reason to believe why Brian wouldn't actually swim out
20
next to the whale.
21
lead him to believe why he shouldn't.
22
Q.
23
vulnerable --
24
25
It had done a fluke splash

There was no
There was no incorrect behavior to
It says here that Brian put himself in a
"By starting to swim in, Brian was in a

vulnerable position that kept him from seeing
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where all the whales were.
is to remain out of the water with Orkid until
further notice."
Our plan at this time
So, if I'm reading that right -- and please
tell me if I'm not -- Brian by swimming where he
couldn't see all of the whales has now put himself in a
situation where the whale could do him harm, either
intentionally or otherwise.
A.
Yes.
After the evaluation and seeing what
10
happened when he swam in, that's probably a fairly easy
11
statement to make.
12
When you analyze this and when you look at
13
what Brian was doing, I can see how he misinterpreted
14
that, but any trainer, I think, at that particular time
15
might have still made that decision.
16
Hindsight now, when you have more than one
17
whale and if there is any confusion at all, which I
18
don't really read that there was, we're very careful
19
where we swim out.
20
But, it's not that we don't swim out with the
21
whales.
22
And, sometimes the whales even bring us in.
23
think you can make the case that swimming out with
24
whales is a dangerous thing.
25
Q.
We do it constantly; we do it all the time.

So, I don't
But, swimming out when you don't know where
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all the whales are?
A.
In this particular situation, you're correct.
Q.
And, similarly with Alexis Martinez, swimming
out without knowing that the whale was under control at
the stage was the same type?
A.
Two completely different environments
conceptually.
already shown you a little bit of frustration, and the
fact that it has already shown the trainer on stage that
One, there's a whale there that has
10
it wants to get back to you and paying attention to you
11
in this Orkid situation is a much different situation.
12
Q.
But, in the Orkid situation, you have already
13
-- before the Orkid situation, you've told trainers do
14
not swim out if you don't know where all the whales are,
15
right, if you can't see all the whales?
16
A.
Yes.
But, again, I'm going to go back and
17
say in this particular situation, I think Brian's
18
perception probably was he could see all the whales.
19
I think we also have to look at the situation
20
with these particular whales in that event.
21
not there, I'm not reading the environment, but the
22
learning from that is we just need to be really aware of
23
what's happening with the whale at stage.
24
mean don't swim out next to the animal that's at stage,
25
just that, you know, in the future really pay attention
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I mean, I'm
It doesn't
430
to what's going on.
grouping of whales are they?
Can you see everything going on?
here is more hindsight than actually Brian making the
wrong decision there.
Q.
What are the whales doing?
What
Are they tightly packed?

I mean, this learning
And, with many of these incident reports, in
fact, the learning is hindsight.
It's being able to
evaluate it calmly in the bright light of after the
incident happens rather than a trainer having to make a
10
decision in the moment perhaps in a highly variable
11
environment?
12
A.
I'm not disagreeing.
I guess my point is we
13
need to be careful saying that swimming out with whales
14
is a dangerous thing.
15
16
Q.
And, you were a little bit surprised, I guess
-- were you surprised when I --
17
A.
No, no, I just wanted to be reminded of it.
18
Q.
Is that because there are a lot of instances
19
20
where trainers are pulled underwater by the whales?

A.
No, it's because I had made it a point to
21
familiarize myself with 98 incidents, I wanted to be
22
very clear which one you were talking about.
23
Q.
Does that mean -- it's not a memory test or
24
anything, but how many times have whales in these 98
25
instances pulled somebody underwater?
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going to hold you to --
A.
I handful of times.
Q.
Well, a handful is -- tell me your definition
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5
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of a "handful"?
A.
I think less than ten.
I don't have that
number exactly.
Q.
Sure.
And, whether it's ten or a few more or
a few less, that would be a very serious incident,
right, if that happened?
10
A.
Not necessarily.
11
Q.
Not necessarily?
12
A.
No.
A whale can dunk somebody and release
13
them right away, and we can redirect the whale and bring
14
him to stage and get right back on track with the
15
session.
16
Whales are -- the way they communicate is
17
they don't talk, they're very mouthy sometimes,
18
especially our younger whales, and just because a whale
19
grabs you or even pulls you, that doesn't necessarily
20
mean it's aggression even.
21
Q.
Sometimes it's exploratory.
But, obviously, a whale doing a little
22
exploratory on you could have some pretty devastating
23
consequences, right?
24
A.
It could.
25
Q.
So, the idea of a whale doing an exploratory
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on you is perhaps something that you want to prevent
from happening, correct?
A.
Correct.
Q.
So, it's a pretty serious thing if a whale is
5
6
doing exploratory on you is pulling you underwater?

A.
We don't want to risk that behavior.
Again,
you need to put it into context of how it occurs, when
it occurs and what animal does it.
Younger animals do a lot of mouthing
10
sometimes or even tug sometimes, and we find that a part
11
of the growing period of a younger whale to be
12
exploratory.
13
We really don't have many of those incidents
14
because we're so familiar with what these animals do,
15
and the fact that they do use their mouth as
16
exploratory, that's part of their training, teaching
17
them the appropriate reaction and what to do around
18
people in the water.
19
that they don't practice that and rehearse that.
20
21
22
23
24
25
Q.
We train specifically to make sure
And, when you use the term "dunking," what do
you mean by the term "dunking"?

A.
Well, you take a food and you pull somebody
down and you let them right back up.

Q.
Well, how do you know whether the whale is
going to be pulling the food, taking them down to the
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bottom and holding them there for too long versus
pulling food and letting them back up?
A.
I'm not understanding.
What do you mean?
Q.
Well, before the individual is dunked, is
there some sort of precursor to that so that the dunking
is a predictable outcome or a foreseeable outcome?
A.
Again, it's all based on the age of the
animal, the session, the trainer.
answer for you.
I don't have a good
It's so rare in these things, I can't
10
really answer you specifically that there is a trend of
11
any type here.
12
Q.
So, if there's not a trend of any type, what
13
is it that caused Orkid here in this instance to pull
14
Brian under the water; grab his left ankle and pull him
15
underwater?
16
A.
I don't know if I have a good answer in that
17
particular situation without really sitting down and
18
analyzing the whole thing again.
19
20
Q.
Okay, it's not that long a report.
It's
only --
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A.
What page is that again?
22
Q.
It begins at Page 1150, and 1152 I think is
23
the analysis.
24
A.
25
I'm sorry.
I think in this particular situation,
obviously, there were probably some precursors that
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probably occurred during the behaviors beforehand.
Either the trainers didn't see him or I'm reading into
this.
I don't know if I have a good answer for you.
Q.
Which page are you on?
A.
I'm on 1152, the actual, "give complete
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7
8
account analysis of the incident."

Q.
If you would turn to Page 1151, near the top,
it says, "No observable precursors."
Do you see that?
A.
Yes.
10
Q.
So, when you suggest that maybe there were
11
some precursors to it, this says the evaluation is that
12
there is by Sea World of San Diego a report circulated
13
particularly to you and other people, right?
14
A.
Yes.
15
Q.
So, you had seen this report at the time that
16
it was created?
17
A.
Yes.
18
Q.
And, the report there on Page 1151, fourth
19
20
21
22
line, says, "No observable precursors," right?

A.
Right, and I think based on the trainers
there, they -- I can understand why they put that.

I will tell you from my years of experience,
23
I have never, ever witnessed a situation like that where
24
there was not some sort of environmental precursor that
25
we either missed or we saw.
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Q.
If I'm understanding correctly, you're using
the term, "precursor," to mean something that caused the
event that you can see in hindsight but that nobody saw
necessarily in foresight?
A.
Say that again?
Q.
Sure.
Sorry.
Your precursors are an evaluation that
you make after the incident?
A.
Q.
Well, in this instance when you're
10
suggesting --
11
A.
You know, I'm only telling you my personal
12
interpretation of this is I didn't see anything.
13
have to rely and what they're putting right here, but
14
I'm basing it on the fact that my experience with killer
15
whales is every time there's been an incident, I can
16
pretty much tell you that there is a predictable
17
behavior that has occurred beforehand, whether you want
18
to call it precursor or whatever, that helps you
19
understand whether it's an environmental, from the
20
animal, from the trainers or whatever the case might be.
21
Q.
So, I
But, as far as predictable precursor, this is
22
a report, as we said, that is circulated to all the
23
curators at the three Sea World Parks, right?
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A.
It is, yes.
25
Q.
So, now, you have this data that the
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evaluation or the report is that there were no
precursors?
A.
Okay.
Q.
And, so now you have that as a data point
when they're operating with the whales in Sea World of
Florida, right?
A.
Yes.
Q.
And, so now you know that your fellow park,
your sister park, operating, using the same sorts of
10
procedures, the same protocols, the same training
11
methods as you has evaluated and said that sometimes
12
whales do things without an observable precursor?
13
A.
I think you're going to find that this
14
incident right here is very rare in the sense when they
15
say there's no observable precursors.
16
Q.
It's very rare but that's exactly what Sea
17
World's evaluation was with the incident with Dawn
18
Brancheau too, right?
19
A.
Correct.
20
Q.
So, now, four years earlier, three and a half
21
years earlier, you see that sometimes there are no
22
observable precursors, and after this incident, Sea
23
World of California stopped doing water work with this
24
animal, right?
25
A.
Right.
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Q.
And, we talked about whether whales are --
whether they're aggressive whales or not, this is a
whale that Sea World of California determined was too
aggressive and undependable to continue water work with,
right?
A.
Well, I would reword that.
Q.
Okay.
A.
Just to say that she was just historically
and aggressive more than predictability of being able to
10
see what she did in the water gave us the ability of
11
being able to say that we no longer wanted to take that
12
risk with that whale in the water.
13
14
Q.
That risk that she would act aggressively and
do harm to somebody?
15
A.
16
JUDGE WELSCH:
17
Correct.
Let me just ask, is this the only
incident report involving that whale?
18
THE WITNESS:
No, it's not.
19
JUDGE WELSCH:
There are other incident reports
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21
22
23
in here involving the same whale?

THE WITNESS:
I don't want you to think that
all of them are as severe as this.

MR. BLACK:
Judge, I was just going to suggest
24
this is a good stopping point to make it go even faster
25
tomorrow morning.
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JUDGE WELSCH:
That's will be fine.
We stand adjourned until 9:00 tomorrow morning.
You're excused.
I will instruct you not to
discuss your testimony with other persons who may be
called later as witnesses in this case.
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---o0o--(Whereupon, the proceedings

were adjourned at 4:40 p.m.)
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this 17th Day of October 2011, A.D.
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BY:__________________________
Norma Carlin
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----------------------------------- x
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SECRETARY OF LABOR,
)
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Complainant,
)
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-vs)
)
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Respondent,
)
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)
------------------------------------x
OSHRC DOCKET
NO. 10-1705
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VOLUME III.
Before:
Judge Ken S. Welsch
Date:
Wednesday, September 21, 2011

9:00 a.m.
Place:

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APPEARANCES:
JOHN BLACK, ESQ.
TREMELLE I. HOWARD-FISHBURNE
Suite 7T10
(404) 302-5435
Suite 2400
(404) 525-8622
GEORGE COE, ESQ.
JON L. MILLS, ESQ.
KAREN DYER, ESQ.
Suite 840
407-425-7118
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I N D E X
WITNESSES
Name
Tompkins (Con't)
Direct
Cross
Redirect
Recross
444
568
653
661
Marked
Admitted
450
458
550
-
567
567
552
568
583
---o0o---
EXHIBITS
Complainant's
C-7
C-8
C-9
C-6
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10
11
12
Description
Animal Profile
Tilikum Profile
Video
Respondent's
R-3
Cal-OSHA Citation
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Morning Session
9:00 a.m.
JUDGE WELSCH:
This hearing is reconvened in the matter of
Secretary of Labor versus Sea World of Florida, LLC,
Docket Number 10-1705.
8
9
Mr. Tompkins, I'll remind you you're still under

oath.
10
THE WITNESS:
11
JUDGE WELSCH:
12
MR. BLACK:
Yes, sir.
Mr. Black?
Thank you.
Judge, as an
13
administrative matter, you had admitted Exhibits R-1 and
14
R-2 subject to checking about pages and seeing whether
15
of not all the pages were there.
16
Respondent, did find that their Exhibit R-2 is missing a
17
few pages, so we're just going to substitute.
18
Sea World, the
I don't know whether it's easier to continue to
19
call it R-2 and substitute the exhibit that the
20
Secretary has listed as Tab 3.
21
JUDGE WELSCH:
22
objections to that?
23
MS. GUNNIN:
24
JUDGE WELSCH:
25
Can he just keep it as R-2?
Any
No, Your Honor.

So, why don't you bring it up
here and have Ms. Carlin mark it.
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JUDGE WELSCH:
With regard to R-2, it has been
substituted to include all the pages, and R-2 for the
record is the Shamu Stadium area manual.
correct, Ms. Gunnin?
Is that
MS. GUNNIN:
Yes, Your Honor.
MR. BLACK:
And just for the record, I think
it's pages Bates Numbers Sea World 1849 through Sea
World 1927, inclusive.
JUDGE WELSCH:
10
MR. BLACK:
11
JUDGE WELSCH:
12
That's the Bates page?

Yes.
R-2 is admitted without
objection as reconstituted, I guess.
13
(Whereupon, Respondent's Exhibit R-2, previously
14
marked was admitted into evidence)
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JUDGE WELSCH:
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Mr. Black, do you want to
proceed?
MR. BLACK:
Yes, Your Honor, we'll continue
Cross-Examination of Mr. Tompkins.

JUDGE WELSCH:
20
I think it's Direct Examination.

---o0o---
21
CONTINUED DIRECT EXAMINATION
22
BY MR. BLACK:
23
Q.
Mr. Tompkins, good morning.
24
A.
Good morning.
25
Q.
I wanted to just follow up on a couple of
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things from yesterday before I move on to some other
things.
3
4
You recall we had talked about this incident

involving Brian Rokeach and Orkid in November of 2006?
A.
Correct.
Q.
And, in that incident, Mr. Rokeach suffered a
torn ankle tendon, right?
A.
Yes.
Q.
And, that's not indicated anywhere on the
10
11
incident report itself, is it?

A.
I'm sorry, I'm confusing that incident.
From
12
what I know of that incident, I'm not familiar with any
13
injuries associated with that.
14
Q.
So, you know that Sea World or do you know
15
Sea World has produced that video to the Secretary in
16
this case showing that Believe Show interaction in which
17
Orkid holds Mr. Rokeach under the water?
18
A.
I'm aware of that.
19
Q.
And, you're aware that you see him when he
20
gets to the stage and he gets out of the water and he
21
limps off the stage?
22
A.
I've seen that, yes.
23
Q.
But you're just not sure whether he --
24
A.
I'm of the aware of that.
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JUDGE WELSCH:
You're not aware of the injury?
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2
3
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THE WITNESS:
I'm aware of him being pulled,
but I'm not aware of the injury.

MS. GUNNIN:
Can we go off the record, Your
Honor, for a moment?

JUDGE WELSCH:
We're off the record.
JUDGE WELSCH:
Mr. Tompkins, I will remind you again you're still
10
under oath.
11
Mr. Black, your witness.
12
BY MR. BLACK:
13
Q.
Mr. Tompkins, in this incident involving Mr.
14
Rokeach, the whale Orkid took Mr. Rokeach down under the
15
water for more than 20 seconds, right?
16
A.
Correct.
17
Q.
And --
18
A.
Well, it was somewhere between 15 and 20
19
20
seconds is what the incident report shows.

Q.
And, you moved him from one part of the pool
21
where he was to another part of the pool slightly away,
22
and he did that not performing some sort of behavior
23
that would be in an effort to help Mr. Rokeach out of
24
the pool, correct?
25
A.
That's correct.
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Q.
So, when you talk about the whales just
dunking the trainers sometimes, is that what you mean by
dunking?
A.
No, that would be grabbed and pulled under,
Q.
We talked about the incident reports that are
5
6
7
yes.
in Exhibit C-6 in front of you?
A.
Yes.
Q.
And, I wanted to make sure that I understood
10
your testimony.
11
aggression incidents are recorded, right?
12
A.
No.
It's possible that not all of the
After going back and looking at my notes
13
and looking at every one of these, we do have 98
14
incidents in here.
15
notebook.
We have one of them is a Loro Parque
16
incident.
So, it was a total of 99, one of them was
17
Loro Parque, 98 of them are Sea World Corporate.
18
19
Q.
There are actually 99 within the
And, actually, there are two Loro Parque
incidents if you include Alexis Martinez?
20
A.
Yes.
21
Q.
So, by your count there would be 100 of which
22
two would be Loro Parque?
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A.
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JUDGE WELSCH:
25
Correct.
I'm a little bit confused.
In
the Exhibit C-6, are there 100 separate incident reports
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or are there only 99 separate incident reports?
THE WITNESS:
We have 99 in this notebook.
of them are Sea World incidents.
Parque incident.
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6
JUDGE WELSCH:
One of them is a Loro
And then there's another Loro
Parque incident but it's not in the notebook?
THE WITNESS:
Correct.
JUDGE WELSCH:
And that's involving Mr.
Martinez.
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MS. GUNNIN:
Judge, I think they have put it
11
in their book.
12
but it is in here.
13
it's not his fault on this.
14
production that we did in discovery.
It was produced at a subsequent time,

So, the witness is confused, but
15
JUDGE WELSCH:
16
actually in Exhibit C-6.
17
18
MR. BLACK:
It's actually due to the
I just want to make sure what is
I can ask a question to perhaps
clarify that.
19
BY MR. BLACK:
20
Q.
If you turn to the last incident in Exhibit
21
C-6, I think it's Page 2722 or something similar to
22
that.
23
A.
(Witness Complies).
24
Q.
So, when you were saying 99, you weren't
25
98
Alexis.
There it is.
counting that one?
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A.
No, I was not.
Q.
So, counting that last one in Exhibit C-6,
I'm sorry.
there are 100 then?
A.
Correct.
Q.
Including two from Loro Parque, right?
A.
Correct.
Q.
But not including another one from Loro
Parque that involved Claudia Bovhort?
A.
You are correct.
10
Q.
And, that one with Claudia, she sustained
11
pretty serious injuries?
12
A.
She did.
13
Q.
There's also no incident report of the
14
incident that that resulted in the death of Ms.
15
Brancheau in there?
16
A.
It's not in here, that's correct.
17
Q.
And, that's because Sea World has not
18
prepared an incident report to include in its incident
19
report notebook for that?
20
A.
We have not.
21
Q.
And, normally, incident reports are prepared
22
to help trainers avoid similar types of occurrences in
23
the future?
24
A.
Yes.
25
Q.
Now, there are other incidents that, in fact,
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are not recorded on the incident reports in addition to
Ms. Brancheau, right?
A.
Not that I know of.
Q.
But, you're pretty familiar with the
incidents that are in there, right?
A.
Yes, I am.
Q.
As the head zoological person?
A.
If it happened from 1988 to now, all
9
10
incidents are in this notebook.

Q.
Now, on a yearly basis, Sea World takes its
11
animal records, including incident reports, and prepares
12
or updates something called an animal profile; is that
13
right?
14
A.
You're correct.
15
Q.
Let me hand you -- after I have it marked by
16
the Court Reporter?
17
MR. BLACK:
18
JUDGE WELSCH:
19
20
21
BY MR. BLACK:
22
Q.
Yes.
Mr. Tompkins, what has been marked for
23
identification as Exhibit C-7 that I've handed you,
24
that's the animal profiles for the Sea World of Florida
25
whales as they existed at the time of Ms. Brancheau's
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death in February 2010?
A.
Yes, correct.
Q.
And, the profiles, in fact, do include short
mentions of some of the incidents, the aggression
incidents?
A.
Yes, they do.
Q.
So, why don't we look at the profile for the
killer whale named Kayla, and that would be starting at
Page 950, and Kayla is a whale that is at Sea World of
10
Florida, right?
11
A.
Yes.
12
Q.
She's actually resided at various times at
13
Sea World of Ohio?
14
A.
She has moved around.
15
Q.
She's moved around.
16
She's been to Ohio,
Texas and California, right?
17
A.
I think so, yes.
18
Q.
And, now if you turn to Page 951, you see
19
where it says, "aggressive incidents"?
20
A.
I do.
21
Q.
And, then, it lists incidents observed to
22
date?
Do you see that?
23
A.
Yes, I do.
24
Q.
And it includes several incidents over the
25
next two, three pages, right?
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A.
Okay.
Q.
The first incident it lists there is a 1992
Kayla pushing a trainer back and forth in the pool
during a relate session, right?
A.
Yes.
Q.
And, you know that that incident is not part
of this incident report log that you have just testified
to includes every single incident, right?
A.
I'm not aware of that particular incident
10
that they're writing here in this situation.
11
have an explanation why nothing was written up for this.
12
Q.
I don't
And, if you look at the bottom of Page 951,
13
it says in 2003 that Kayla came out of the water as a
14
trainer backed over the wall.
15
right?
Kayla had her mouth open,
16
A.
Where are you reading that?
I'm sorry.
17
Q.
It's the very last bullet point on Page 951?
18
A.
Okay.
19
Q.
I'm sorry, you're right.
I'm reading the
20
wrong one.
21
of Page 951, and it continues on the top of 952.
22
mistake.
23
A.
Okay.
24
Q.
She came out of the water as the trainer
25
Actually, I'm not sure that I am.
It starts
My
backed over the wall, and she had her mouth open, right?
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A.
That's what it says.
Q.
If that happened, that would be an aggression
incident that should be recorded, right?
A.
Technically, yes.
Q.
Not just technically, that's the kind of
information --
A.
That's the criteria, yes.
Q.
There's no incident report in Exhibit C-6
containing that incident as well?
10
A.
Okay.
11
Q.
You agree with me, right?
12
A.
Without going to the actual list, I'm
13
assuming you're correct.
14
don't remember an incident report being in there.
15
Q.
I don't remember this, and I
And still on Page 952 for October 2003, a
16
whale was involved in an incident where -- and I'm
17
assuming the name Kayla.
It's a she, right?
18
A.
It is.
19
Q.
It says she fluke splashed, and she motioned
20
toward the hand of the trainer with her mouth open,
21
right?
22
A.
Where are you reading this?
I'm sorry.
23
Q.
In October of 2003.
24
A.
Okay.
25
Q.
Do you see on the very last three lines of
All right.
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that bullet point, "She fluke flashed the trainer and
later motioned her head, mouth open, toward the
trainer's hand.
No injury occurred."
A.
Okay.
Q.
That's the kind of aggression incident that
you would want to put in the aggression reports, right?
A.
It should be, yes.
Q.
But it's not?
A.
Um-hum.
10
Q.
When you say, "um-hum," do you mean -- you
11
went through these aggression incidents last night,
12
right?
13
A.
The ones we have in our notebook.
14
Q.
So, the ones in the notebook don't include
15
16
17
18
this one?
A.
I'm afraid I don't know all of these profiles
page by page, word by word.

Q.
Do you want a take the time to look through
19
there, or are you willing to stipulate with me that if
20
I'm not finding it in there, it's not in there?
21
A.
That's correct.
22
Q.
And, then, in summer the of 2004, it
23
indicates that Kayla lunged at a trainer.
24
separation attempt, she lunged at her trainer, although
25
no contact occurred," right?
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"During the
455
A.
Um-hum.
Q.
That's a "yes"?
A.
From what I'm reading.
Q.
And, that incident is not in the incidents
5
6
that you have in the incident report book, right?

A.
You know, the only answer I can give you is
these were observations made by trainers.
obviously, we discussed very carefully what an incident
is and what we write down.
10
And,
And some of the these, not all of them, it
11
could have been perceived by the trainer but after
12
discussing it with other trainers and observed it, it
13
could have been perceived as nonaggressive.
14
Q.
Mr. Tompkins, you're not going to say that
15
based and what you're reading here, these aren't the
16
kinds of incidents that should be under the aggression
17
report notebook under protocol?
18
A.
No, I'm not saying that and I'm not trying to
19
make a justification as to why it's not in there, but I
20
do realize that sometimes the observations of a trainer
21
that makes it in here is sometimes interpreted different
22
and sometimes we have had situations where a trainer
23
comes to us and said, "This is what I've seen, this is
24
what happened," and the observer next to him basically
25
said, "Really, there was confusion there."
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1
2
Now, in this particular -- on most of the

ones that you gave me, these do fit the criteria, yes.
Q.
I mean, there's no question that the ones, if
what is written there is accurate, would be written up
as aggression incidents, right?
A.
The summer 2004 is questionable to me because
it says the animal lunged up.
animals slide up, but that does not necessarily mean
they're aggressive.
10
Q.
A lot of times our
It's okay to lunge up at a trainer with
11
something that's entitled aggressive incident in a
12
behavior profile?
13
A.
I'm going to assume the trainer interpreted
14
it that way, and that's why it got written in here like
15
that.
16
17
Q.
And, you want this animal profile to be
accurate?
18
A.
Absolutely.
19
Q.
And, it's one of the important pieces of
20
information that the trainers rely upon?
21
A.
It is.
22
Q.
And, then, in October of 2006, again, Kayla
23
lunged at a trainer, mouth open, knocking him back this
24
time.
25
Do you see that?

A.
I do.
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1
2
Q.
And, that's not included in the incident
report either, the incident report that is C-6, the log.
A.
Um-hum.
Q.
That's a "yes"?
A.
Yes, sir.
Q.
And, lastly, for November 2006, again, Kayla
lunged at a trainer and in this instance -- and I'm
turning to Page 953 -- in this instance Kayla lunged at
the trainer and knocked back a bucket off of the wall,
10
right?
11
A.
Yes, I see that.
12
Q.
And, that's the kind of incident that you
13
would want to have put in the incident reports, right?
14
A.
You are correct.
15
Q.
So, in fact, there's no question but that
16
what you're calling a complete incident report log is
17
not a complete and containing every incident between
18
1988 and 2009, correct?
19
20
A.
Based on what I'm seeing here and if these
are accurate, we missed a few.
21
Q.
I mean, you're not doubting their accuracy?
22
A.
No, I'm not.
23
Q.
Now, let's turn to -- let's look at another
24
animal profile.
I'm going to mark it as a separate
25
exhibit, as it's not from 2000
CARLIN ASSOCIATES
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458
prior to incident with Dawn Brancheau.
BY MR. BLACK:
Q.
Mr. Tompkins, Exhibit C-8 is the Tilikum
animal profile that was prepared and/or revised in June
of 2010?
A.
Um-hum.
Q.
That's a "yes"?
10
A.
Yes.
11
Q.
And, I'm not trying to harass you, I just
12
want to make sure she's able to get that down.
13
This animal profile, much like the other
14
ones, gives some information about the whales.
This one
15
gives information about Tilikum, right?
16
sex of the whale, it tells the age of the whale, right?
It tells the
17
A.
Yes.
18
Q.
And, similar -- I don't know if you would
19
call it biographical information if you would?
20
A.
Yes.
21
Q.
And, then, it talks about some of the whale's
22
physical characteristics, right?
23
A.
It does.
24
Q.
And, it indicates secondary reinforcers,
25
right?
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A.
Right.
Q.
And, it doesn't indicate primary reinforcers
because the primary reinforcers that Sea World uses are
only the one that is using food as the reinforcement
mechanism, right?
A.
That's a given, yes.
Q.
And, then, it indicates that Tilikum finds
certain things adversive?
A.
Right.
10
Q.
And, by finds adversive, you mean that
11
Tilikum doesn't seem to have a good reaction to that?
12
A.
Correct.
13
Q.
And, then, it lists underneath that --
14
A.
I think we need to be careful saying "finds
15
adversive" all the time because sometimes in his life
16
he's found each one of these adversive.
17
happened only one time.
18
these histories, it's not something that an animal
19
sometimes carries throughout their entire life but it
20
occurred.
21
us as we move forward with that animal.
22
It could have
If you look back through all of
These are biographical snapshots, and helps
So, we have to be careful to assume that he
23
always feels that way more than these are tendencies
24
that sometimes occurs in his life.
25
MS. GUNNIN:
Judge, may I just make an
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objection that this is a document that was prepared
after the incident.
of knowledge beforehand, it occurred afterwards.
dated June 2010 at the bottom.
JUDGE WELSCH:
So, if it's used to show some kind
The record is so noted.
It's
think you said it was updated as of June 2010.
The
record is noted.
terms of you can go ahead and ask your questions, but
I'll take that into consideration.
I will overrule your objection in
10
MS. GUNNIN:
11
BY MR. BLACK:
12
Q.
And, this incident you say that "finds
13
adversive" very well might happen at some point in the
14
whale's life?
15
A.
Yes.
16
Q.
And, it might be that today you would not use
17
that same description for Tilikum because maybe you
18
haven't observed that in some period of time?
19
A.
Well, we actually train and work with that
20
animal not to have that response to that particular
21
behavior.
22
23
Q.
For example, perhaps you train Tilikum not to
be adverse to the birds stealing his fish?
24
A.
Right.
25
Q.
Is there a way to train for that?
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A.
You just need higher reinforcing around him
when the birds steal his fish so he doesn't get
frustrated about that or if there's too much change.
We have since worked him very carefully and
cautiously making sure that changes introduced into his
life, and it's no longer adversity.
things, even though they may be on here, there is
normally a plan to actually work an animal through what
we consider these situations.
10
Q.
Right.
So, all these
But, the reason for preparing this
11
profile is so the trainer working with Tilikum will have
12
a snapshot of Tilikum's history, right?
13
A.
Absolutely.
14
Q.
And, that history includes things that have
15
happened before?
16
A.
Yes.
17
Q.
That's relevant to today.
That is, you
18
didn't just write this down here just for fun with no
19
purpose, right?
20
A.
You're correct.
21
Q.
You write it down there because the trainer
22
should have this information and consider it as another
23
piece of information when working with the whale?
24
A.
You are correct.
25
Q.
Then, it says aggressive tendencies; do you
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see that?
A.
Yes, I see that.
Q.
And those aggressive tendencies, I don't
think that those aggressive tendencies that you show on
there were changed from the prior incident report.
guess if you want, you can compare Exhibit C-7 --
A.
Yes.
Q.
-- at Page 942.
A.
Where am I going here?
10
Q.
I'm sorry, Exhibit C-7.
11
that's the collection of all of the
12
A.
What page?
13
Q.
Page 942.
14
JUDGE WELSCH:
15
MR. BLACK:
That's the one

--
I think it really starts on 941?

Yes, it does start on 941, and then
16
it's just a different format, so it's spread over more
17
pages.
18
JUDGE WELSCH:
For the record, 941 is also an
19
animal profile of Tilikum, and it's updated as of July
20
2009?
21
22
MR. BLACK:
That's what it says, Your Honor,
that's correct.
23
BY MR. BLACK:
24
Q.
So, are you with me, Mr. Tompkins?
25
A.
I am.
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Q.
So, what it lists for aggressive tendencies
wasn't changed between 2009 and 2010 after the incident,
right?
A.
You're correct.
Q.
It says he has a negative history with
trainers in the water, right?
A.
It does.
Q.
And, it says:
"Please be advised that this whale was
10
involved in the accidental drowning of a trainer
11
at Sea Land in the Pacific in 1991, and it
12
involved an incident with a guest in his pool in
13
1999 at Sea World of Florida."
14
Did I read that accurately?
15
A.
Yes, you did.
16
Q.
And those are listed under aggressive
17
tendencies, right?
18
A.
Those are.
19
Q.
And, then, below that it lists as behavioral
20
incidents.
Do you see that?
21
A.
I do.
22
Q.
And, one of them is in July of 1999.
23
says, "Drowning.
It
No specific behavior noted," right?
24
A.
Yes.
25
Q.
I assume that's referring to Daniel Dukes,
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who fell, who either somehow got into the park after
hours and was drowned, correct?
A.
You're correct.
Q.
And, no incident report was prepared
5
6
7
8
9
10
11
12
13
14
15
involving that incident, right?

A.
No, because we really don't know what
happened.
Q.
You don't know but it was certainly
significant to list it both under "behavior incidents"

and under "aggressive tendencies"?
A.
It was significant in the sense of the event
that happened, yes.

Q.
But, I mean, it's even shown under the part
labeled, "aggressive tendencies"?

A.
Well, I think we need to be careful.
There's
16
no other spot on this incident report to put something
17
that's so unique that we've never had happen.
18
trainers put it under aggressive tendencies not really
19
knowing where to put it, and I would stand here today
20
and tell you that I'm not exactly sure that I would
21
support the idea that either one of those situations
22
with these previous deaths are associated with
23
aggression.
24
25
The
I don't know what happened to the girl up in

Marine Land.
We don't have the specifics, we don't know
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what happened to the gentleman who came into the park.
We came in the next morning, and we found him drowned in
the pool.
So, to say that there was aggression
associated with that?
probably had a logical place to put it there because
there was no other place where it fits in, but I would
tell you right now, I think I would be very careful
saying that those are nonaggressive situations.
10
No.
Why we put it there?
It
We
don't know that.
11
Q.
And, you were probably the most experienced
12
animal trainer if not the most experienced, certainly
13
one of the top few at the Sea World Parks, right?
14
A.
Yes.
15
Q.
So, you might choose to prepare this report a
16
little bit differently if you were drafting this animal
17
profile, right?
18
A.
In hindsight, I probably would have put it in
19
a different category because sticking it in "aggressive
20
tendency" would be to tell somebody we know that's
21
aggression, and that's not the case.
22
that.
23
Q.
We don't know
So, Sea World is in its animal profiles
24
telling its trainers -- because these aren't prepared
25
for the public, right?
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A.
No, they're not, but trainers just don't read
this and walk away.
the trainers.
and go, "good luck."
We walk through these profiles with
We don't hand these out to new trainers
We sit down and approach it sitting down,
reading these and interpreting these, especially the
Tilikum people, which by the way are not new people.
They're a very experienced senior trainer.
down and they know very clearly all of the situations
They sit
10
that Tilikum has been in, including those two
11
situations.
12
what we don't know about those situations.
13
because we placed it in aggressive tendencies doesn't
14
mean we don't expand it into great detail with the staff
15
that's going to be working in on what happened or what
16
we don't know happened in those situations.
17
Q.
They understand exactly what we know and

So just
Under behavioral incidents, the description
18
of the incident with Ms. Brancheau, it says, "Grabbed
19
pony tail, pulled in water," and then it says, "held
20
trainer under water," and it says, "carry/tow trainer?
21
A.
Yes.
22
Q.
Why is it described that way in there?
23
A.
My interpretation is we needed to remember
24
the relationship that we had with Dawn in this event.
25
This was traumatic for everybody.
CARLIN ASSOCIATES
The way we wrote this
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here was not to avoid the details of it, but I think for
the sensitivity of how it was written and how the
trainers read it and interpreted it, it protected
people's feelings.
Don't think for a second that that situation
is not described in detail or won't from this period on.
Any trainer, any senior, advanced senior trainer is not
going to know exactly what happened in that situation.
If you're trying to tell me that people have interpreted
10
that no drowning occurred, that won't be the case.
11
starts the conversation and through our teaching of
12
these people, we will complete that conversation with
13
the details.
14
Remember what this is.
This
This is just little
15
pieces to start a conversation that other, more
16
experienced trainers can sit down with you and go in
17
much greater detail or go to another document like an
18
incident report form and go into much more specifics.
19
This tells you it occurred, and then we'll go
20
to the incident report and we'll go into great detail as
21
to what exactly happened in that situation.
22
not avoiding it more than we're telling you it occurred
23
and we'll get into more detail later.
24
25
Q.
So, it's
But, in this instance, there is no written
incident report.
So, there's not some other written
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document that somebody could go to and learn from a
written document more about what happened, right?
A.
At this particular point, we don't.
To
assume we won't have one in the future, I don't know if
that's accurate.
written document right now.
specifically.
8
9
I do know that you don't need a

We talked about this very
This was one on those events that is tragic

for us.
We know exactly all the details, we talk about
10
it constantly within the staff, the staff that work
11
Tilikum are very, very familiar with this.
12
move forward, we will never let anybody not know all the
13
specifics and the data to this particular event.
14
Q.
And, as we
Well, I appreciate that and certainly would
15
hope that that's the case, but you nonetheless have made
16
a decision not to record it now?
17
A.
As of right now.
18
Q.
Yes.
And not to provide a written
19
description so that people will understand exactly what
20
Sea World's analysis of the incident was without any
21
questions, without having to come to somebody and say,
22
"Geez, explain to me exactly how this happened."
23
A.
They don't come to us and ask.
We tell
24
everybody, we sit down -- this is not an option to know
25
these facts.
It's a mandatory part of what you learn
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about a particular animal.
We just don't give them a
notebook and say, "Good luck."
they learn.
These are a part of what
When you work an animal, you know their
historical history, you know the incident reports,
you're familiar with that.
them, your coach is going to sit down and verbally go
through all of these with you anyway.
And, even if you didn't read
My only statement to you is we have not
10
written one yet, but that's not to say we are not going
11
to produce one sometime in the future.
12
Q.
Why would you produce one in the future?
13
A.
To represent the same type of learning tool
14
15
that we have created for all these incidents.

Q.
Because not having it in writing means that
16
parts of what happened could come into question.
17
Institutional knowledge could be lost, right?
18
A.
I really doubt that.
I think this is an
19
event significant enough where I think the trainers even
20
verbally are going to communicate all the details.
21
Q.
Now, I understand your view that it wasn't
22
aggressive behavior when Tilikum pulled Ms. Brancheau
23
into the pool, right?
24
25
A.
I personally don't believe that was an
aggressive act.
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Q.
But, you would concede that once he had her
in the pool, he became aggressive such that she suffered
some pretty traumatic injuries?
A.
Yes.
Q.
Now, Tilikum, he's the largest killer whale
at Orlando?
A.
Yes.
Q.
In fact, he's the largest in all Sea World,
isn't he?
10
A.
He is.
11
Q.
Somewhere between 11- and 12,000 pounds?
12
A.
Yes.
13
Q.
And, there is an entire chapter or section of
14
standard operating procedures dedicated just to Tilikum?
15
A.
Yes.
16
Q.
And, that Chapter 11, I think it is, or
17
Section 11 of the SOP's, has specific rules for Tilikum,
18
right?
19
20
21
22
A.
There are many specific rules for Tilikum,
Q.
Specific regulations, if you will, for
yes.
exactly how you work with Tilikum?
23
A.
Yes.
24
Q.
Specific procedures about ways to interact
25
with him, correct?
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A.
Correct.
Q.
And these protocols, procedures were designed
prior to Ms. Brancheau's death a keep people away from
Tilikum except in very limited circumstances?
A.
It wasn't to keep people away from Tilikum.
It was to make sure that the people that were going to
interact with him were highly skilled, experienced
people that understood the rules specific to him.
Q.
Well, Sea World understood if you were too
10
close to Tilikum in most circumstances, there was a risk
11
of harm if somebody got too close to him and, thus, they
12
developed these specific procedures?
13
A.
Based on his previous history coming to Sea
14
World, we interpreted that environment, and we made sure
15
that we wrote his rules and regulations taking that into
16
consideration.
17
Q.
And, if trainers were in the wrong place with
18
Tilikum, being in the wrong location with him that
19
presented a risk of harm, right?
20
A.
I'm not understanding your question.
21
Q.
What don't you understand?
22
A.
Just because you were standing next to
23
24
25
Tilikum did not put you at risk.

Q.
No, but if you were in the wrong place next
to Tilikum, that put you at risk?
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A.
No, it did not.
If you entered the water, we
assumed it would be at risk, but when you were working
him on the deck, we interacted with him much like we did
our other killer whales on the dry deck.
Q.
And, if you don't notice a precursor with
Tilikum prior to February of 2010, there was a risk of
harm to somebody who failed to notice that precursor if
Tilikum engaged in one or exhibited one?
9
10
A.
You're assuming that all precursors lead to
aggression, and that's not always the case.
11
Q.
I'm not assuming that.
12
A.
Okay.
13
Q.
I'm saying that if there were a precursor of
14
15
the type on your list of precursors -A.
Right, and there are no different precursors
16
for him than there would be for any other killer whale.
17
We watched all the same environmental cues that gave us
18
an understanding of what we were dealing with.
19
Q.
And if somebody missed one of those precursor
20
environmental cues, then Tilikum presented a very big
21
risk of harm?
22
A.
I don't know if I can agree with you because,
23
one, we never saw those precursors with him.
24
had an incident with him that would have showed us any
25
type of aggression with anybody in a land situation.
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We never
473
Q.
I understand but you assumed that if, in
fact, a precursor of the kind that you have listed in
your materials that there was a potential for the risk
of harm with Tilikum?
A.
Let me try to explain again what a precursor
is.
A precursor is a behavior that occurs before
another behavior.
that you can get that don't necessarily mean that the
next thing that's about to occur is aggression.
And, there are many, many precursors
Let me
10
be clear about that.
11
that could and have a high likelihood of leading to
12
aggression, but those are few and far between and very
13
rare.
14
Now, there are certain precursors
Most precursors we see are caught very, very
15
early, and we're able to redirect it or step back and
16
change the animal's attitude or, like I said, step away.
17
So, I want to be cautious in thinking that a precursor
18
always leads to harm or risk to a trainer.
19
always the case.
20
Q.
That's not
Well, you're using "harm" and "risk"
21
interchangeably.
I'm not saying that it means that harm
22
is going to happen.
23
So, you would agree that those two things are different,
24
right?
25
The risk that harm will happen is something different.
I'm talking about the risk of harm.
Harm is what happens when somebody gets hurt.
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A.
If you want to play with words, yes.
Q.
I just want to be precise and it's not
playing with words.
A.
Okay.
Q.
You wrote an article in the early 1990's on
aggression in cetacean and how to reduce exploring the
causes and possible reduction techniques of aggression?
A.
Yes, sir.
Q.
And, in that article you have a Table 5, that
10
lists 19 aggression precursors in cetacean, right?
11
A.
Right.
12
Q.
Cetacean including Orca killer whales,
13
correct?
14
A.
Correct.
15
Q.
And, so when you say there are only certain
16
precursors that present this risk of aggression, you're
17
talking about those 19 specifically identified
18
precursors?
19
A.
If you read that article the way it's
20
presented, there is a list of possible precursors.
21
Those don't always lead to aggression, but those are the
22
ones you need to really pay attention to.
23
hundreds of precursors that you may see, there's a
24
handful that are probably more of a priority to look at
25
than others.
Out of the
I think that's what you're trying to say.
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Q.
No, I was just trying to say that this list
is the list of the ones that you really keep your eyes
open for.
A.
Okay.
Q.
You would agree with that, right?
A.
Yes.
Q.
I mean, that's why you have this list of what
you have in your experience identified somehow as an
aggression precursor, right?
10
A.
It could be an aggression precursor, yes.
11
Q.
Well, I mean, maybe in the article it says
12
could be aggression precursor.
13
precursors, right?
Table 5 says aggression
14
A.
Right.
15
Q.
So, in having this list, then if Tilikum were
16
to engage in one of these what you call possible
17
aggression precursors, if that possible aggression
18
precursor wasn't noticed by the trainer, then there is a
19
risk of harm to the trainer?
20
A.
There could be.
21
Q.
So, possible aggression could be.
22
23
I mean,
I'm not talking -- I guess -A.
I'm getting stuck on the idea -- and maybe
24
I'm misinterpreting you, but just because you see that
25
behavior does not mean the next behavior you see is
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going to be aggression.
It's possible aggression.
And, maybe I'm getting caught up on semantics
of this and the black and white we're trying to create
here because it's all interpretative, it's all
contextual.
those are the things you need to keep an eye on, and the
whole idea of precursor behavior is so you can catch
things before they lead to something.
You know, what you're basically saying is
Q.
I'm sorry, you said it's all interpretive?
10
A.
What I mean by that is you've got to take
11
your environment into the context that you're working
12
in.
13
That paper, by the way, was written but it
14
was also presented at a conference where I stood up for
15
an hour, and I explained in great detail the complexity
16
of assuming that everything, especially what you're
17
talking about right there, everything leads to
18
aggression.
19
It's a guide.
It's not a black and white.
20
This doesn't lead to this.
It says this is a part of
21
the environment that you need to be aware of.
22
confusing you?
23
Q.
No, no.
24
A.
No.
25
Q.
So, it's all interpretative that if the
Am I
I'm sorry.
Do I look confused?
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trainers have to not just read this but sort of have to
make the right decisions based on this, your list of
aggression precursors, based on other training you've
provided to them, based on the environment over here,
based on the temperature, the climate, the whales how
they are socially interacting, right?
A.
They do.
Q.
And, so you would agree that that allows for
9
10
the possibility that the trainer might miss one of those

important cues?
11
A.
They could.
12
Q.
And, if they miss one of those important
13
cues, then forget Tilikum, just any of the whales,
14
that's leading a trail that possibly leads to whale
15
aggression?
16
A.
It could.
17
Q.
I gave you possibly.
18
A.
It's possible.
19
Q.
Sea World works with Tilikum in protective
20
contact, right?
21
A.
Yes.
22
Q.
And after Ms. Brancheau's death, Sea World
23
has only protective contact with Tilikum, right; no
24
other kind of contact?
25
A.
Well, if we put him in a lift where we're
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able to interact with him and touch him and get closer
if he's in a lift station.
do protective contact, and there are areas where we can
actually contact him.
Q.
So, there are areas where we
In those areas that you can contact him, you
don't mean to say that putting him on a lift floor and
working with him like that is not what you would call
protective contact?
A.
Well, when you enter into the environment
10
where the whale is, whether you're on dry deck or not,
11
it's all semantics.
12
lift floor, it's a very safe environment.
13
14
Q.
I mean, we're protected, we're on a
And, you would only do certain limited things
with him on that lift floor, right?
15
A.
Medical procedures.
16
Q.
Medical procedures.
17
So, the chance of
getting too close to him is dramatically reduced?
18
A.
It is.
19
Q.
There were other missing incident reports as
20
well, right?
21
those incident reports that aren't included in the log
22
of incident reports or in the collection of incident
23
reports known as Exhibit C-6, you would concede that
24
there may, in fact, be others that are missing as well?
25
A.
But, I'm not sure whether you after seeing
There might be a few, yes.
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Q.
There might even be more than a few, right?
A.
No, I don't think that.
Q.
So we could through some more that I didn't
find in there.
opinion?
A.
How many would be a few more in your
I don't know.
I don't know everything, I
don't know every page of every one of these profile
sheets.
9
10
Q.
But, you do know how important the corporate
incident report log is, right?
11
A.
Yes.
12
Q.
So, I assume you find it disturbing to have
13
learned that there are some incidents that apparently
14
are not reported?
15
A.
I regret that they are not in there, yes.
16
Q.
That's because of what an important tool
17
those incident reports are for the trainers?
18
A.
Yes.
19
Q.
Let's turn if you would in the big binder you
20
have there, C-6, we turn to Page 307.
21
A.
What page?
I'm sorry.
22
Q.
307?
23
A.
(Witness Complies).
24
Q.
Have you located that, Mr. Tompkins?
25
A.
Yes.
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1
2
Q.
And, this is an incident report involving
Trainer Terry Cobert in 1991?
A.
Yes.
Q.
And, you were the supervisor in this
instance, right?
A.
Yes.
Q.
And the whale involved was Katerina?
A.
Yes.
MS. GUNNIN:
Judge, just for the record, may I
10
make an objection to an incident that occurred 19 years
11
before this particular incident.
12
there's a relevancy in time whether this would be so
13
remote as to be considered 19 years later.
14
15
JUDGE WELSCH:
Let's go on.
16
BY MR. BLACK:
17
Q.
18
It would seem that
Mr. Tompkins, looking at Page 307, four lines
up from the bottom, do you see the sentence that says:
19
"Recently Katerina has grabbed the pony
20
tails of two other trainers on behaviors (a fluke
21
wave mimic and a porthole camera play)"?
22
A.
Where are you reading this?
23
Q.
Page 307, beginning the fourth line from the
24
25
I'm sorry.
bottom.
A.
Okay.
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1
2
Q.
And, those sound like the kinds of things
that should be in an incident report, right?
A.
Q.
Grabbing a pony tail?
A.
It could.
We started our official paperwork
of actually doing these incidents in 1988.
I'm
speculating that these incidents could have occurred
prior to this where we didn't have actual paperwork
documentation of the incidents.
10
Q.
You're speculating?
11
A.
I am.
12
Q.
I mean, it says "recently," and now we're
13
three years into the paperwork era?
14
A.
Yes.
15
Q.
So, that could explain why there are no
16
incident reports for them?
17
A.
I don't have an answer for you.
18
Q.
Now, you reviewed this incident report way
19
back in 1991 at the time it was prepared?
20
have been the procedure, right?
That would
21
A.
19 years ago, yes.
22
Q.
I mean, the procedure since incident reports
23
were created was for all the persons involved to review
24
it and look at it, right?
25
A.
Yes.
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Q.
So, when it says, "recently," you're
speculating that perhaps it's more than three years
earlier?
A.
I don't know.
Q.
So, that would explain why these are not --
I don't have an answer for
you.
6
7
that's the only explanation you can give for why these
aren't in the incident reports?
A.
I don't have any other explanation.
10
Q.
If you would stay in that same book but turn
11
to Page 532, please?
12
Exhibit C-6.
For the record, we're still in
13
A.
(Witness Complies).
14
Q.
Have you found that page, Mr. Tompkins?
15
A.
I have.
16
Q.
And if you want to take just a second to look
17
at this incident report, I don't need you to look at it
18
in any more detail other than to -- well, I'll tell you
19
what.
20
it a little bit, I will give you as much time as you
21
need, but I guess without knowing my questions, you
22
don't know how much familiarity you need.
If I ask you a question that you need to look at
23
A.
(Reviewing document).
24
Q.
I only have a few questions about this, Mr.
25
Tompkins.
If you would like to continue reviewing it,
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you can but --
A.
3
4
5
If your question requires me to
read further, I'll read further.

Q.
Again, just let me know.
I don't mean to
stop you from reading if the need arises.
6
7
Go ahead.
Okay?
This is an incident in which the whale fluke

made contact with a trainer's chest, right?
A.
Let me read this in detail if I can then.
Q.
I can direct you to Page 534, the last words
10
on the page and the animal response?
11
A.
It says, "fluke flush to trainer's chest."
12
Q.
So, this was considered an aggression
13
14
15
incident, right?
A.
Apparently, the trainer perceived it that
way, yes.
16
Q.
17
at Page 532 --
18
A.
Yes.
19
Q.
-- it's a memorandum from Thad Lacinak to you
20
And, the cover page or the top page of this
and three other individuals, right?
21
A.
Yes.
22
Q.
And, for the record, "Lacinak" L-a-c-i-n-a-k.
23
And, who was Thad Lacinak in June 1996?
24
A.
He was the corporate VP of animal training.
25
Q.
He was essentially in a position that is very
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similar with most of the same duties as what you're in
today?
A.
Yes.
Q.
So, he was your predecessor if you will?
A.
Yes.
Q.
And, so he would get the incident report and
get all the comments from the park curators, San Diego,
San Antonio and Orlando, and then he would sometimes
write a cover memo giving his final thoughts on it.
10
Is
that how it works?
11
A.
Yes.
12
Q.
So, his final thoughts on it on the first
13
page, Page 532, says, "This incident would not have
14
happened if senior trainers present would have exercised
15
their responsibilities."
Do you see that?
16
A.
I see that.
17
Q.
So, what he's saying is the senior trainers
18
made some errors?
19
A.
Yes.
20
Q.
And, these senior trainers, they included
21
Kelly Clark.
22
that document?
23
A.
I see it, yes.
24
Q.
And, Kelly Clark is, of course, the curator
25
If you would turn to the second page of
of Sea World of Florida?
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A.
Um-hum.
Q.
Sitting at Counsel's table behind me, right?
A.
Correct.
Q.
And also including Craig Thomas.
A.
Yes.
Q.
And, he's the assistant curator for Sea World
Do you see
that?
of Florida at Shamu Stadium, right?
A.
Yes.
10
Q.
So, even Mr. Thomas and Ms. Clark made errors
11
12
that led to an aggression incident, right?

A.
I'm not saying that people don't make
13
mistakes.
14
ago, and we do make mistakes, people make mistakes,
15
animals make mistakes but they're learning events, and
16
that's what these documents are.
17
Q.
That's what -- of course, this was 19 years
People do make mistakes, right?

Yet, this is from 1996.
You just
18
said 19 years ago.
That's
19
15 years ago.
20
A.
15 years ago, yes.
21
Q.
So, mistakes are pretty easy to make?
22
A.
Mistakes are made, but we have a process by
23
which we learn by those mistakes, not only the animals
24
but the people, and assume that these mistakes are going
25
to be made again.
That's the reason we have these --
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our criteria and our track record of incidents reduces
dramatically.
and less of these, and that's why these are so important
to us.
Q.
As we move forward in time, we have less
So, when you say mistakes are made, you're
saying that Sea World is now able to prevent trainers
from making mistakes?
8
9
A.
Well, no, you don't prevent trainers from
making mistakes, but we teach them through all of these
10
incidents that we've had, which the majority of them did
11
not cause injury, we learn from them, and we get better
12
with it.
13
learn.
14
Not only the whales learn but the trainers
And, with all these historical learnings, we
15
have become much better at reading the whales, reading
16
the environment, and being able to read those precursors
17
and prevent them from ever going to a situation where a
18
trainer is in harm or a killer whale is in harm.
19
Q.
Well, I suppose that that's a matter of your
20
opinion that you've become much better so that you don't
21
have as great a likelihood of injury or harm, right?
22
A.
No, it's not an opinion.
It's based on the
23
statistics.
If you see how many incidents we have at
24
the very beginning -- this whole training process has
25
evolved over the last 20, 30 years.
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a whole lot better.
If you look at our incident trend, if you
want to look at the amount that we currently have and
what we're recording, you can see the accuracy of what
we're talking about.
For Sea World of Florida, for example, from
April of 2005 to 2009, we didn't have one incident.
one.
curve, right?
Not
Somewhere in there, there had to be a learning

If we weren't learning and getting
10
better, then why did we not have incidents at Sea World
11
of Florida for almost five years.
12
Q.
Maybe you were lucky.
13
A.
We don't think so.
We think it came from
14
learning from these situations, getting better about it,
15
whales learning, trainers learning and us getting really
16
good at our craft.
17
Q.
When you say the number of incidents is down,
18
we have already established that your incident reports
19
are incomplete and that's part of the basis for the
20
statement that incidents are down, right?
21
A.
Yes.
22
Q.
You're not a statistician?
23
A.
No, I'm not.
24
Q.
And no statistical analysis has been
25
performed of the incident reports, right?
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A.
Yes, there has.
Q.
A statistical analysis by a statistician?
A.
No.
Q.
So, when you say that, you're just sort of
looking at it and saying, "Wow, it looks like a downward
trend line," right?
A.
Correct.
Q.
But, in fact, at the end of what you think is
9
10
11
a downward trend line, you have some really big, serious

incidents?
A.
I'm not denying we haven't had incidents, but
12
the frequency of those incidents have gone down
13
dramatically.
14
Q.
Well, I understand that that's your belief;
15
but, in fact, included among those recent incidents is
16
one involving a whale Kasatka in 2006.
17
serious incident, correct?
That was a very
18
A.
Um-hum.
19
Q.
And, obviously, the incident with Ms.
20
Brancheau was extremely serious?
21
A.
Yes.
22
Q.
And, even the experience with your whales at
23
Loro Parque and your own trainer there with Keto and
24
Alexis Martinez, that was a tragic and terribly serious
25
incident?
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A.
It was.
Q.
So, at the end of what you're describing as a
downward trend, in fact, we have some pretty bad things.
You would agree with me, right?
A.
Those specific events were, yes, very tragic.
Q.
And, so your choosing to interpret that we've
gotten safer and better at predicting, based on not
taking into account the severity of some of the
incidents that have happened more recently?
10
A.
No, not at all.
I'm not denying the fact
11
that those are tragic events, but I'm also able to look
12
at a bigger picture too.
13
If we're going to focus in on just those,
14
obviously, those are very tragic events, but I'm looking
15
at the entire training program.
16
those events.
17
is a bigger picture to look at.
18
many interactions have we had good things.
19
in on a handful of tragic events, but we're not talking
20
about all the good things that have occurred.
21
You can't focus just on
Although they are very important, there

You have to look at how
We focused
We have to keep that in context too.
We have
22
been doing this for many, many years, since 1988.
We
23
kept track of it.
24
where they've turned out really, really well.
25
need to put it into the context, not really taking the
We've had millions of interactions
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490
fact that those are important situations, but you do
have to put it in the context of how many have we done
compared to those situations that have occurred that
have been tragic, and it's a very small percentage, very
small, and we need
Q.
to keep that in perspective.
Sir, with all due respect, we're not here at
this proceeding to be talking about all of the good
things.
program does to prevent safety hazards, right?
10
We're here to talk about what Sea World's
A.
We are but I don't think you can discuss our
11
program without talking about how many good situations
12
we've had.
13
If we're going to focus just on what went
14
wrong, that's not the big picture.
That's not the whole
15
picture.
16
balance it with the millions of interactions that we've
17
had where we've been safe where nothing has happened.
18
think that's important.
19
It shows us that we have had situations where people
20
have made mistakes.
21
make mistakes, and we learn from them.
The whole picture is you have to take that and
I think it's very important.
We learn from them.
And, animals
22
And, as we move forward in time, we get
23
better and better and in reading these situations.
24
we had some tragic events?
25
denying that those are tragic, but I'm also standing
Absolutely.
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back and realizing but putting the bigger picture of
those things, that's a very small percentage, very small
percentage of all the things that we've done right over
the 22 years.
Q.
But, not an acceptable percentage to continue
doing things the way that you were doing them prior to
Mr. Brancheau's death, right?
A.
It's never acceptable to have human life.
I'm not telling you that, and we hopefully will work
10
towards never having that again, but to say that our
11
whole program is broken and that what we are doing
12
collectively is wrong, I would disagree with that.
13
Q.
Well, I'm not sure whether anybody has said
14
it's broken.
15
out of the water for the last 19 months, right?
16
A.
Sea World itself has taken its trainers
That doesn't mean anything is broken.
It's
17
just that after the Dawn event, we pulled ourselves back
18
and we wanted to evaluate everything we did.
19
things that we knew that had nothing to do with the
20
event.
21
that situation.
22
Even
I think that was the one way our company handled
Q.
But, given that in previous times when you
23
have pulled people out of the water, you pulled them out
24
and you've come to a conclusion, and you put them back
25
in.
In this case here, you have continued to hold them
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out for 19 months, right?
A.
We're still doing an inclusive investigation
of everything that we do, how we want to move forward.
What happened.
looking at.
unlooked at, and that process takes a lot of time.
There are so many things that we're
We're not leaving anything unreviewed and
MR. BLACK:
Your Honor, now might be a good
time for our break.
JUDGE WELSCH:
10
I still have a bit more to go.

Can you give me some idea how
much longer?
11
MR. BLACK:
It's more than enough time that we
12
should probably take a break.
13
hour.
14
JUDGE WELSCH:
Thank you.
It's at least another
Okay, we stand adjourned until
15
10:30.
Mr. Tompkins, I will remind you not
16
to discuss your testimony with other witnesses.
17
18
19
JUDGE WELSCH:
20
21
oath.
22
23
MR. BLACK:
24
BY MR. BLACK:
25
Q.
Mr. Tompkins, just quickly to finish up with
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this incident report here in Exhibit C-6, if you would
turn to Page 536?
A.
(Witness Complies).
Q.
There is a part of this report that says,
Okay.
"originating park curator comments."
Do you see that?
A.
Yes.
Q.
That says, "Did the acts of the employee
contribute to this accident?"
And it says, "yes"?
A.
Yes.
10
Q.
And, "What could have been done to prevent
11
this accident?"
Do you see that?
12
A.
Yes.
13
Q.
And, the fifth point down there, it says,
14
"All the trainers should have recognized the frustrating
15
situation," right?
16
A.
Yes, I see that.
17
Q.
So, six people here, six trainers, made the
18
error of not recognizing a frustrating situation, right?
19
A.
Yes.
20
Q.
And, now, under, "What corrective steps have
21
been taken?"
"We will suspend water interactions with
22
Kalina until further discussion and direction."
23
see that?
Do you
24
A.
Yes, I do.
25
Q.
So, the first action the park took was to
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suspend water work with this animal, right?
A.
It was.
Q.
And, this animal, in fact, has a history of
aggression, at least at the time of this incident report
in 1996, right?
A.
She had previous aggressive situations, yes.
Q.
And, in all different types of sessions, it
says there under Bullet Point 2 for "corrective steps."
It says, "During all sessions."
10
Do you know what that
means?
11
A.
What is that now?
12
Q.
Bullet Point 2 under "corrective steps" --
13
A.
Okay.
14
Q.
It says, "Incident:
15
Show a history of
aggression during all sessions."
Do you see that?
16
A.
I see that.
17
Q.
And, what that means really is that all types
18
of sessions, those HELPERS sessions we've talked about,
19
husbandry, exercise, learning, play, relationship and
20
show, right?
21
A.
Correct.
22
Q.
So, it doesn't mean that every time they step
23
up to the whale, she has shown aggression, right?
24
A.
Yes.
25
Q.
It just means that during every type of
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interaction that they have with this whale, there have
been instances of aggression?
A.
Yes.
Q.
And, from your review of the incident
reports, that would be your recollection of this whale,
in fact?
A.
After reading this, yes.
Q.
This is a Sea World of Florida incident
report, and you were, in fact, in the role of curator,
10
if you will, at this time at Sea World of Florida,
11
right?
12
A.
Yes, I was.
13
Q.
I will have you turn to Page 728 of Exhibit
15
A.
(Witness Complies).
16
Q.
And, this is an incident in August of 2002 in
14
17
C-6.
California involving a trainer Tamery Tulson?
18
19
20
21
A.
728?
I'm familiar with that one, yes.
And this is
I'm sorry.
Q.
728 is the cover sheet from Mr. Lacinak, and
729 I guess is the incident report proper if you will?
22
A.
Yes.
23
Q.
And, the cover sheets, I mean, these are put
24
25
in the incident report book as well, right?

A.
Yes.
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1
2
Q.
And, this is an incident you said you're
familiar with, right?
A.
Yes.
Q.
In which a trainer was sitting on the edge of
the pool and putting her foot near the whale's mouth,
right?
A.
Yes.
Q.
And, after putting her foot near his mouth
several times, she was pulled into the water by that
10
whale, right?
11
A.
Yes.
12
Q.
The trainer wasn't supposed to be doing that,
13
14
right?
A.
No.
The trainer was in the wrong spot.
She
15
should not have been sitting next to the side of the
16
pool, and she should not have been interacting with that
17
whale.
18
19
20
Q.
And, there should have been a spotter there
for the interaction as well?

A.
She was there observing the pool, and if you
21
interact with a whale, you need a spotter.
22
technically supposed to be interacting with that whale.
23
Q.
One or the other.
She wasn't
Either don't interact or
24
if you're going to interact, as she did, you have a
25
spotter?
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A.
Correct.
Q.
Now, if you would advance to Page 733 under
"What corrective steps have been taken?"
that?
A.
Yes.
Q.
And it says:
Do you see
"We have initiated a safety
stand down," right?
A.
Yes, I read that.
Q.
And, the safety stand down is pulling the
10
trainers from water work as the very first step of that
11
stand down; is that right?
12
A.
Yes.
13
Q.
Because that's the first most safe thing that
14
they can do when they're trying to evaluate the
15
incident, right?
16
A.
Yes.
17
Q.
And, it allows, in this case, I guess, Sea
18
World of California to consider and come up with a game
19
plan to use their language, right?
20
A.
Yes.
21
Q.
And, in fact, this incident report in coming
22
up with a game plan, this is something that you as
23
curator in Florida could make comments or
24
recommendations on the game plan that they come up with,
25
right?
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A.
Yes.
Q.
Now, one of the things that this incident
showed, if Sea World didn't already know it, is that
whales can pull trainers into the water from the side of
pools, right?
A.
If you are not working the whale and you put
yourself in that situation she had with that whale, in
that situation that did happen.
Q.
But, Sea World knows now and knew even before
10
this incident that whales have the capability of pulling
11
trainers into the pool?
12
A.
Yes.
13
Q.
And, now, if you will turn to Page 720, it's
14
a different -- I think it's the preceding incident
15
report, 720 of Exhibit C-6, is the cover sheet.
16
have that in front of you?
Do you
17
A.
720?
18
Q.
Yes.
19
A.
Yes.
20
Q.
And, this was an incident in which Trainer
21
Jenny Mairot was knocked down by a whale, Taima, during
22
a tactile rubdown right?
23
A.
Yes.
24
Q.
And, on Page 721, it indicates the length and
25
type of session, it indicates "six minutes/romp."
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499
you see that under length and type of session on Page
721?
A.
Six-minute romp, yes.
Q.
And, the romp, that's part of the show,
right?
A.
It is.
Q.
If you turn to Page 723, it indicates that no
8
9
10
precursors were observed, right?

A.
Let me read it first here and make sure.
"None observed," yes.
11
Q.
That's pretty clear?
12
A.
Right.
13
Q.
And, on Page 725, it talks about originating
14
park curator comment.
15
about.
16
you see that?
17
A.
I see that.
18
Q.
And that's you.
19
Do you see that?
I said it talks
It lists originating park curator comments.
Do
That's Chuck Tompkins,
right?
20
A.
Yes, it is.
21
Q.
And, it asks whether the action of the
22
employee contributed to this accident, and it says,
23
"no," right?
24
A.
Yes.
25
Q.
And, so no errors were made by the employee,
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right?
A.
Yes.
Q.
And, then, under, "What could have been done
to prevent this accident?" it essentially says, "Nothing
that I could pull out of this incident to change,"
right?
A.
Yes.
Q.
And, that's what you wrote?
words, right?
Those are your
10
A.
Yes.
11
Q.
So, this is one of those -- it also goes on
12
to say, "This is one of those situations we will never
13
quite understand the intent of her movement," "her"
14
being the whale, right?
15
A.
Yes.
16
Q.
And, it even says that in plural.
It doesn't
17
say "a" situation.
It says, "one of those situations,"
18
plural, "we will never quite understand her movement."
19
It says that, right?
20
A.
Yes.
21
Q.
So, the learned lesson here, it indicates, is
22
of the unpredictability of our animals in the best of
23
situations, right?
24
A.
25
Q.
And those are your words, right?
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A.
It is.
Q.
So, as a result of this incident, you
instructed all trainers to treat this whale as though
all sessions had the potential of unpredictable
aggression, right?
A.
Yes.
Q.
So, if you can't predict -- well, before I
ask that, it also as the corrective step, it has,
"Senior staff are now going to be the only ones to work
10
with this whale," right?
11
A.
Yes.
12
Q.
And, senior staff, of course, is not any
13
better than less senior staff at predicting the
14
unpredictable, right?
15
A.
Well, their skill sets, they've seen more.
16
They're able to react more.
17
precursors.
18
They've seen more
This is, what, `02?
How many years ago?
19
were -- what I can speak to about this particular
20
situation in this particular whale, Taima, is we
21
recognized with her that she had these tendencies.
22
obviously, it's a statement we made here.
23
be very, very careful with her.
24
25
We
And,
We started to
We learned with each of our whales what their

capabilities were.
In this particular situation, this
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whale because of these rare moments of unpredictability
with all whales, but with her we saw it more often, we
started to work her differently.
We changed the way the senior staff worked
her, we watched very carefully water work sessions.
It's not like we just ignored this, went on and did
nothing more than what this tells me right here is that
we recognized we didn't see something.
better at reading the environment.
10
We needed to be
Every time we have one of these situations,
11
we learn, no doubt about it, and in this particular
12
situation, we did the same.
13
from people.
14
quite an anomaly.
15
situation, we didn't.
16
Q.
It's not like I'm hiding it
We're basically saying, yes, this one is

We normally see something.
In this
Okay, but just to clarify when you say "not
17
hiding from people," those are not incident reports that
18
are made available to the public.
19
from your trainers?
You're not hiding it
20
A.
Absolutely not.
21
Q.
And, just to be clear when you say rare
22
occurrence of unpredictability, your exact words -- and
23
I'm quoting, I'm reading from the fourth line on Page
24
725 under, "What could have been done to prevent," "I
25
think we have learned our lesson of the unpredictability
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of our animals even in the best of situations."
are your words, right?
A.
Those
Yes, and I will tell you that we have
obviously learned a lot more since this particular time,
and if I had to go back in time, I probably would have
written this differently.
Q.
Well, I appreciate --
A.
You have to put it into context.
At the time
it was written and the experience I had at that
10
particular time.
11
grow, and we become a lot more advanced in our applied
12
animal behavior and what we do with our animals since
13
even that particular time.
14
Q.
And, obviously, trainers grow, whales
But, your 98 percent predictability rate that
15
you described yesterday afternoon, that's still 98
16
percent --
17
18
19
A.
Let's go back and clarify that 98 percent.
Okay?
If I'm doing a session with an animal and I
20
do 100 different behaviors, on average if you look at
21
their entire sessions, 98 percent of the behaviors that
22
they do are correct.
23
behaviors, that does not necessarily mean that's
24
aggressive or that they're about to be aggressive or has
25
anything to do with any negative.
When you have two incorrect
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confusion.
do.
swam away.
The whale might not have known what the to
It may have just refused how to do it.
It may have
You either take that into context of it's not
like 98 percent good and two percent bad.
that 98 percent of the time they're doing exactly what
we're asking them to do, and the other two percent,
something else is happening.
mean that it's bad or that it's aggression.
10
11
make that clear.

Q.
It's the fact
That does not necessarily

I want to
That makes sense, and what you wrote in the
12
next sentence here seems to make sense too, wouldn't you
13
agree, "We have instructed all trainers to treat Taima
14
as though all sessions have the potential of
15
unpredictable aggression."
16
A.
You can write that with all of our animals.
17
We always step out there with the precaution of making
18
sure that what we do, we're always making sure of what
19
we're doing and what the animal is doing.
20
Now, we recognize these are animals.
They're
21
trained, highly trained animals.
We know the frequency
22
of these incidents are so rare,
but we don't take that
23
for granted.
24
cautious about what we do and how we do it.
25
we have our extensive training program, that's why we
Every time we step out, we're very
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505
have our coaching program, that's why trainers spend
years by the side of the pool.
Although it sounds sort of complicated in its
process -- I mean, we've talked about these SOP's and
books and incidents and all that, it sounds so confusing
with so much going on.
It's not unlike driving a car.
When you
drive a car, there's a lot to learn, but then when you
learn how to drive a car, it becomes second nature.
10
It's second nature to these trainers when they step to
11
the side of the pool to always be aware of the animal
12
and themselves.
13
You don't expect aggression to occur, but you
14
keep your eye out for anything that may indicate that it
15
may lead to that situation.
16
so well, we very, very, very rarely have an aggressive
17
moment with our animals or even a precursor to
18
aggression.
19
Q.
Because we've taught that
So, I take it as a given, you don't expect
20
aggression to occur.
You wouldn't be able to hire
21
trainers to do this job if you expected it, right?
22
That's just a given?
23
A.
I would think so, yes.
24
Q.
So, when you talk about it becoming second
25
nature for them, like driving a car, you're saying that
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1
2
they recognize the unpredictability of animals, right?

A.
When you spend ten hours a day your entire
career, and your years around these animals, you become
very familiar with that animal and the environment
around you.
It's not that thinking process where you're
constantly trying to evaluate and take everything in
more than it becomes a part of your environment.
no different than you driving a car and being able to
It's
10
multi-task and recognize the environment around you.
11
learn to do that as trainers.
12
In this particular situation that I'm talking
13
about right here, we definitely had a learning curve.
14
We learned from this.
15
wrote it down.
16
trainers that in this particular situation, we had a
17
moment where we didn't recognize.
18
We
The nice part about this is we
We actually have an ability of showing
What I would tell you today if went back
19
there, I would go, "We need to be better at being able
20
to read the environment," because I can almost guarantee
21
you there was a precursor we missed.
22
What I've learned in my 33 years is that very
23
rarely have I ever seen an incident that didn't have
24
some sort of precursor.
25
it may have been in the back pool, it might have been
Now, we might not have seen it,
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another whale next to you, it might have been an
environmental cue, but as we move forward in time, we
are recognizing what our cues are, recognizable cues
that you can see.
And, because we've learned how to recognize
that, we have minimized aggression to a very safe level
in my mind.
8
9
Q.
And, you also have recognized here and have
recognized that there are some things that are
10
unpredictable, in fact, that sometimes unpredictable
11
aggression can happen?
12
A.
In this particular case, it's written, but if
13
you start going to the front now, going forward in time
14
and reading the incidents, you don't read that, you
15
don't read in here, "We don't know what happened."
16
start learning from the environment, and we start
17
learning what the precursors are, what the environment
18
is, and how to react to that environment.
19
So, this is a great learning tool.
We
I'm glad
20
it's there because it taught us to be more vigilant in
21
observing the environment and making sure that we pay
22
attention.
23
us.
24
25
Q.
This actually is a great learning tool for
You've learned that the animal can sometimes
do unpredictable things that you hadn't seen before,
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1
2
right?
A.
We think it's unpredictable.
It also tells
us that we need to probably be better in our environment
of watching what's going on.
this a learning curve.
every year.
embarrassed about that because at the time, that's what
we thought.
keep developing our applied animal science we've
10
You've got to remember,
Right?
We get better each and
To make that statement here, I'm not
And, now, as we move forward in time, as we
realized that there's a lot more going on here.
11
Animals just don't break out into aggression.
12
That just doesn't happen.
13
way, shape or form.
14
animals go into the acquisition of mode whether they're
15
hunting for food or whether they're aggressive, it's
16
just not something that they go, "Well, I'm just going
17
to start being aggressive."
18
I don't believe that in any
There's a purpose and a reason why
That does not happen in the killer whale
19
world.
20
of you, and you need to be able to recognize it, and
21
that's what we've shown over time.
22
good at being able to manage and to look at and to see.
23
It's a process that develops and occurs in front
Q.
We've gotten very
And, you've also gotten pretty good at
24
realizing that there may be unpredictable situations,
25
right?
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A.
In this particular situation, that was our
assessment, but as we move forward in time, like I'm
telling you, I don't think that we would say that again.
Q.
Well, certainly --
A.
It could happen.
Q.
You certainly wouldn't say it if you knew
7
8
9
what was coming afterwards, right?

A.
occur?
Absolutely.
They do.
Am I saying those moments don't
But, what I'm saying is we've gotten
10
-- throughout this entire book as you move forward, you
11
recognize that we've become better and better at looking
12
at the precursors and being able to state what they are.
13
14
Q.
Well, when you say, "you recognize," you're
speaking for yourself, right?
15
A.
And our staff too.
16
Q.
So, despite all this recognition, things
17
still happen for the first time sometimes?
18
A.
It can.
19
Q.
And, with Ms. Brancheau she was the tragic
20
victim of something that happened for the first time?
21
A.
That was a totally unexpected event.
22
Q.
A completely unpredictable event?
23
A.
It was.
24
Q.
And, in fact, you've said it's not even the
25
result of aggression in your determination, right?
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A.
No, I have to put Tilikum in a completely
different classification that he is a nonwater work
animal, and we had a situation where somebody got in the
water with him.
He's different.
What he did was unpredictable to us.
He's a different class of animal, no doubt
about it.
treat him different because of his history and where he
came from and the way we work him.
10
I have to look at him different and I have to
All of our water work animals, we work a lot
11
different.
I have a different perception about that.
12
Will I say that all our water animals sit around giving
13
us unpredictable behavior, I would say absolutely not.
14
Q.
Just certain ones are predictably
15
unpredictable?
16
A.
We predict to the best of our ability what
17
these animals do, and from our recordkeeping, whether
18
you want to agree with the number of incidents or
19
whatever, if you look at the bigger picture, our ability
20
to predict and to have things go right is much, much,
21
much higher than the few incidents that go wrong.
22
Q.
23
to Page 2659.
24
C-6.
25
A.
Let's turn to another incident.
Let's turn
It's sort of near the back of Exhibit
(Witness Complies)
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1
2
Q.
Mr. Tompkins, have you found the incident
report beginning on Page 2659?
A.
Yes, I have.
Q.
And, this is an incident also at Sea World of
Florida?
A.
Yes.
Q.
This occurred on April 1, 2005, with the
trainer Sam Davis?
A.
It was.
10
Q.
And Sam was injured in this incident,
11
correct?
12
A.
He was.
13
Q.
And, the animal involved was a whale named,
14
you said, Taku, T-a-k-u?
15
A.
Taku.
16
Q.
Okay, it doesn't say anywhere on this report
17
that Sam was injured.
18
injured?
19
information.
20
21
22
A.
So, how do you know that Sam was
I'm just trying to understand your source of
I know for a fact that I was at the Stadium
during that time, and I knew about that situation.

Q.
And, when you talk about something like, I
23
think you said 12 injuries since 1988 that you have
24
included in your count?
25
A.
This is one of them.
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Q.
This is one of them.
And, all of those 12
injuries, where did you get the information that those
injuries occurred?
A.
Either from the incident report or from the
park that had that incident.
you know, this book that you see here was created for
this event that we have here.
these incidents with each park --
Q.
You need to remember that,
The way we normally have
Just for the record, you're saying this
10
Exhibit C-6 --
11
A.
A collection of incidents.
12
Q.
-- was created for this case; this lawsuit?
13
A.
Yes, because we didn't actually have one book
14
with everything in it.
15
incidents.
16
17
Q.
Each park kept track of their
They also had copies of the incidents from
the other parks as well?
18
A.
They should have, yes.
19
Q.
So, just to make sure I understand, your
20
records of injuries come from both if it's reflected on
21
the incident report or from having spoken to the folks
22
at the other parks?
23
A.
Say that again.
24
Q.
Sure.
25
I'm sorry.
Your knowledge of how many injuries
have occurred, that's based on either something you saw
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in an injury report, or it's based on something that you
were orally told by somebody from the other parks?
A.
Correct, yes.
Q.
And, would that be information that you
obtained recently, the oral information or is that
something that you are relying on from back whenever the
injury occurred?
A.
It's a combination of talking to the right
people either on the animal profile or the incident
10
report or actually talking to the park that had the
11
incident.
12
Q.
So, based on looking at the records, you
13
tried as best you could to gather the data of all the
14
injuries, right?
15
A.
Yes.
16
Q.
But, it's possible that there are some
17
injuries that either because they didn't get recorded on
18
the incident report or otherwise, but there are more
19
than 12 injuries?
20
A.
I can't speak for all the parks because,
21
obviously, during this particular time, I was working at
22
23
is you kept your incident reports and although you had
24
access to other incident reports, it wasn't necessarily
25
kept in a collective notebook.
The way the parks were doing it
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We kept our incidents -- could we have missed
to few?
Absolutely.
the profiles, there are a few things brought up here,
but the bottom line is somewhere in a written document,
not that we were hiding it from anybody.
wrote it down, we have it somewhere what occurred with
each of the animals.
8
9
I'm realizing that as we look at
The fact is we
Most, I'm hoping if not all, got into the

incident notebook, but if not, the animal profiles tell
10
you about that animal and any situation that we may find
11
abnormal with that particular animal.
12
So, between these two documents it's a
13
collective group of paperwork to help you understand
14
what the animal history is.
15
So, you know, could we be missing a few?
16
Could be.
17
our purpose not to write these down or not provide these
18
or hide these more than these are really effective
19
learning tools.
20
But if it is, it's in here.
It's not that
We wanted these, we produced these.
I mean, if you really look at this, there's
21
an incredible amount of data and recordkeeping for a
22
large group of animals for a long period of time; very
23
extensive, very detailed.
24
documents, the profile in this book, there is an
25
incredible learning curve that's going here.
So, between these two
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I know it
515
looks expansive and it looks big, but our object and our
purpose of using this was, again, as an effective
learning tool for people to move forward with these
animals.
I'm personally thrilled by the fact that
we've got this type of data, and it's to my opinion
after reading everything, how much is there and the
accuracy that it's put in here.
me feel good is the learning that we've been able to go
10
And, what really made
through for these 22 years.
11
We go from learning so much about these
12
animals and precursors and all the things that we
13
believe that may cause aggression to today where we have
14
an extensive file and understanding of what to do and
15
how to handle these animals, it's not a surprise
16
anymore.
17
You won't very rarely -- I know Dawn is the
18
exception in that particular case -- but more often than
19
not, 999.999 percent of the time, we know what happened,
20
and we're able to prevent it from occurring again.
21
Q.
Now, looking at this incident report here
22
involving Sam Davis, let me -- before we look at that,
23
Mr. Tompkins, whatever the actual number of injuries is
24
your count of 12 excluded Alexis Martinez's death?
25
A.
It excludes the Loro Parque incident.
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Q.
And it Claudia Bovhort (ph)?
A.
Yes, it does.
Q.
And, it also excludes Ms. Brancheau's death?
A.
It does.
Q.
And, before 1988 or 1989, there were several
serious injuries that occurred at the Sea World Parks,
right?
A.
Say that again?
Q.
Before you started keeping these incident
10
reports, there were several serious injuries that
11
occurred?
12
A.
Yes.
13
Q.
And, in 1988, there were five or six serious
14
15
injuries that occurred to trainers, right?

A.
I would have to go back and look at exactly
16
the breakout of years, but the way we broke out those
17
incidents, those 98, is we looked at it from the sense
18
of was it a medical situation?
19
in the park which was a minor injury because you went
20
back to work that same day?
21
where you left Sea World to have medical attention?
22
Did you go to first aid
Or was it outside medical
So, we looked at all those 98 since 1988, and
23
we realized that we had 12 injuries.
24
read in here and what we knew, we could accurately say
25
that we had 12 of those injuries.
CARLIN ASSOCIATES
Based on what we
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1
2
Q.
I think maybe I asked a poor question or you
didn't understand me; one or the other.
A.
Okay.
Q.
I was talking about before you started
keeping these incident reports in 1988, there were five
or six serious injuries that occurred in that year
immediately proceeding, right?
A.
In 1989 is what we're saying?
Q.
In 1988 or thereabouts, yes.
10
A.
I would have go back to my recordkeeping to
11
12
13
look at how many incidents happened that year.

Q.
Certainly, there was an incident involving a
trainer named John Syllic (ph)?
14
A.
Those were prior to 1988.
15
Q.
Oh, I'm sorry.
16
17
18
19
20
21
That was in 1987.
So prior to 1988, in 1987
there were five or six serious injuries?

A.
I don't know that to be true.
The one I know
of was John Syllic.

Q.
You're aware that there were a large number
of incidents that were occurring in up through 1987?

A.
There were incidents and it's unfortunate but
22
our recordkeeping, our official recordkeeping of doing
23
these types of documents started in 1988, and it started
24
after the evaluation of the John Syllic incident, and
25
that's when we started to take a much more serious
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approach to recordkeeping with our incident program.
So, the accuracy of me being able to speak to
incidents prior to '88, I don't think I would be very
accurate because we don't have paperwork to substantiate
any frequency or intensity.
information.
Q.
I just don't have that
Turning back to this incident report you have
in front of you involving Sam Davis, if you would turn
to page 2660, I think it's the second page of this
10
report.
11
A.
Yes.
12
Q.
And, in the area on that page beneath the
13
first horizontal line, it talks about precursors, right?
14
A.
Yes.
15
Q.
And, really, if you read those three
16
sentences, what it's really saying is that it didn't
17
observe any precursors, right?
18
19
A.
Well, vocalizations were observed, although
it says this is unusual --
20
Q.
This is not unusual, right?
21
A.
But in this particular case, what is not
22
written down here is -- and I'm very familiar with this
23
case because I was working at the park.
24
25
I was in that area, I oversaw that area, and

the one thing that's not written down here that we found
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out later is that through talking with the trainers, we
didn't see it the first day, but after sitting down and
evaluating more, we realized that there were whale
communications going out back.
who was a dominant female in the back.
Q.
"He" being Taku?
A.
Taku.
He is the son of Katina
He was an offspring of one of our
adult females in back, and I will tell you looking back
in history knowing this particular case, we really feel
10
like that the altercation -- there was a whale
11
altercation going on in back.
12
push-and-shove match with another killer whale, and we
13
really believe after evaluating it, and although it may
14
not be written here in detail at all, we really feel
15
like communication in back with the other whale may have
16
played a part in this.
17
She was having a social
And that's why one of the things that we did
18
decide to do was we were going to keep track of the
19
extra cycles of females and social interactions in back.
20
That was one of the outcomes of this.
21
on this, but I remember very clearly what we did after
22
this.
23
Q.
It never made it
I appreciate your remembering very clearly
24
what happened after April of 2005, but after April of
25
2005 through today, you didn't bother to issue
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additional information in an incident report or a
revised incident report putting this new additional
important information that you learned, right?
A.
Right.
Q.
Much like in the incident with Ms. Brancheau,
you still haven't prepared an incident report for that,
right?
A.
MS. GUNNIN:
10
11
12
13
We have already said that.

Can the witness have an
opportunity to read the entire incident report?

JUDGE WELSCH:
Overruled.
If the witness needs
time, he can ask.

THE WITNESS:
Well, let me read this whole
14
thing, and I'll be able to assess what the outcome was.
15
(Reviewing file).
16
BY MR. BLACK:
17
Q.
With the coaching of your attorney, you
18
actually now see that there is some indication of it in
19
there?
20
A.
Yes, it is.
As a matter of fact, I missed it
21
in my quick perusal.
22
on Page 2662, "What corrective steps have been taken,"
23
you can see there in front of you exactly what I talked
24
about.
25
Q.
Actually, in the first paragraph
And, that's with the benefit of hindsight,
CARLIN ASSOCIATES
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long after or at some point after this incident
occurred?
A.
The evaluation of -- those trainers can only
see what's happening in the front, but once we sit and
talk with the trainers in the back, of course, that
becomes new information for us.
it to the incident report.
8
9
10
Q.
And, that's what made
But, the trainers in front, of course, didn't
know what was going on in the back, and that was part of
the problem, right?
11
A.
Correct, yes.
12
Q.
And, in this incident, I guess if you turn to
13
Page 2660 where it talks about the animal response, it
14
says that the whale ended a foot push?
15
understanding that right?
Am I
16
A.
Pec push.
17
Q.
I'm sorry, primary and the trainer
18
reinforcement response, the sixth box says, "Whale did a
19
foot push to the bottom of the pool for stand on run.
20
Foot push terminated after mouth open"?
21
A.
Yes.
22
Q.
So, the whale ended the foot push, right?
23
A.
Yes.
24
Q.
And, then, turned toward the trainer and
25
struck him three times?
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A.
He made a lap of the pool.
I actually was
sitting in the audience.
occur.
first time and then swam by, made a loop of the pool and
came by and hit him with his fluke.
6
7
I watched the entire incident
He actually made a swim by.
Q.
He pushed him the
And, three times made contact with him,
right?
A.
Correct.
Q.
That's what it says in the next box over?
10
A.
Yes.
11
Q.
And from this incident report if you turn to
12
the next page where it says the acts of the employee
13
contributed to this incident or this accident.
14
indicated or this report indicates, "no," right?
You
15
A.
Yes.
16
Q.
The employee didn't make any sort of error
17
here, right?
18
A.
Yes.
19
Q.
I mean, the incident occurred despite the
20
employee not doing anything wrong?
21
A.
Yes.
22
Q.
I mean, incidents can occur either from an
23
employee doing something wrong, making an error or
24
sometimes without any error whatsoever, right?
25
A.
Yes.
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Q.
And, so Sea World concluded that the only way
to prevent this accident, what could have been done to
prevent this accident, "Refrain from water work Taku,"
right?
I'm on Page 2661.
I'm sorry if I skipped ahead.
A.
I see that, yes.
Q.
So, that was the conclusion was that what
should have been done is not do water work at all,
right?
A.
I think we need to put that into context of
10
why did we stop doing behaviors.
11
that's maybe slid up in a slide out, and I didn't want
12
that whale to continue to slide out, it was sliding up
13
on some and it became a problematic behavior, we
14
wouldn't be asking that whale a slide up.
15
If I have a whale
We stop any behavior to make sure we're not
16
setting ourselves up to rehearse what just happened.
17
So, it could be a land based behavior that we stopped
18
doing or it could be a water based behavior.
19
everything ends up as, "All right, everybody get out of
20
the water."
21
working.
22
Not
It depends on the behavior that you're
In this particular case, he was in the water
23
with this particular whale.
That's why we stopped the
24
water work.
25
those responses to every single incident is pull
I just want to make very clear that not all
CARLIN ASSOCIATES
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everybody out of the water.
This happened to be in the water, and we
wanted to make sure that Taku did not rehearse or even
think about that situation in future sessions.
Q.
Also, in doing that it was certainly safer to
prevent rehearsals or prevent injury to the trainers by
stopping water work?
8
9
A.
It prevented him from a possible rehearsal of
what he just did.
10
Q.
And, it made the trainers safer?
11
A.
Yes.
12
Q.
And, on Page 2663, Sea World of California
13
weighs in on what they think about this incident, and
14
they list what I would describe as a number of guesses
15
as to what was going on with the whales.
16
agree with my characterization as to guesses?
Would you
17
A.
Yes.
18
Q.
They guess that perhaps it was the workload
19
or perhaps it was a social element, perhaps it was
20
hormonal or social factors, right?
21
A.
That's what they write.
22
Q.
So, they're all their guesses.
They're
23
trying to understand what was going on, but they're
24
making what really is a guess.
25
be a factor," "seemed to have been a factor," right?
CARLIN ASSOCIATES
I mean, they say, "could
(216) 226-8157
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A.
Yes.
Q.
And, then, further down on this page, the
corporate curator of animal training, Mr. Lacinak, he
concurs with the assessment and the comments on this
incident, right?
A.
Yes.
Q.
And, then, he goes on to say, "hindsight is
20/20."
Do you see that?
A.
I see that.
10
Q.
And, so what he's saying and you would agree
11
with is that it's easier an analyze afterwards what
12
happened than to see it at the time that it's happening,
13
right?
14
A.
Yes.
15
Q.
If I could have you turn to page --
16
A.
You know, another comment to put this into
17
perspective of this particular incident --
18
Q.
Are you clarifying some testimony?
19
A.
No, let's move forward.
20
Q.
On Page 1455 --
21
MR. BLACK:
Your Honor, before I go into this
22
incident, I don't want by talking about it to waive our
23
relevance objection as to animal husbandry and such, but
24
the reason I'm going through it now is rather than
25
having to call this witness back later if you decide
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that you want to hear about animal husbandry.
JUDGE WELSCH:
record is so noted.
BY MR. BLACK:
Q.
I understand.
The
But, this is an incident involving animal
husbandry with the whale Orkid in California --
7
8
Go ahead.
A.
If you're going to ask me a lot of questions
on this, may I read it?
Q.
You can take as long as you want.
I would
10
not characterize it as a lot of questions, but you might
11
disagree.
12
A.
13
JUDGE WELSCH:
14
MR. BLACK:
15
Let he read through it quickly, please.

What page is that?
This is Page 1455 through Page
1458.
16
THE WITNESS:
17
BY MR. BLACK:
18
Q.
(Reviewing exhibit).
When I'm asking you some questions, if you
19
need to look at it further, please let me know.
20
trying to stop you from reading it at all.
21
22
I'm not
This is an incident involving the whale Orkid

in California in 2007 receiving a sonogram, right?
23
A.
Yes.
24
Q.
And during that sonogram, the whale came up
25
out of the water and bumped the trainer, right?
CARLIN ASSOCIATES
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A.
Correct.
Q.
And, this was a whale that already Sea World
had stopped doing water work with at this point in time,
right?
A.
Yes.
Q.
And, had stopped doing water work for a year
or thereabouts, maybe eight months prior to this
incident, right?
9
10
11
12
A.
I don't know the exact time, but she had
stopped water work.

Q.
Had stopped water work after that
November 2006 incident involving Mr. Rokeach, right?
13
A.
Yes.
14
Q.
Five months before, give or take, and did not
15
resume water work at any time prior to February of 2010
16
with Orkid, right?
17
A.
Yes.
18
Q.
And, so certain corrective steps were taken
19
with Orkid after this incident, right?
On the third
20
page of the incident report 1457 at the bottom, it
21
starts talking about the corrective steps taken; do you
22
see that?
23
A.
Yes.
24
Q.
And, it talks about semi-protective contact
25
approach that Sea World of Florida successfully used
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with Taima and Tilikum for a year, right?
A.
Yes.
Q.
And, also, we have included Kasatka in this
approach due to her recent incident, right?
A.
Q.
I've read that correctly?
A.
Yes.
Q.
And, that's, in fact, what happened, right?
They had engaged in semi-protective contact with
10
Kasatka?
11
A.
Yes.
12
Q.
And, the corrective steps included performing
13
husbandry behaviors behind walls, right, if you look at
14
(D) on Page 1458?
15
A.
Pool walls, yes.
16
Q.
Well, behind the walls, tell me again what
17
18
that means?
A.
Around each of our facilities, there are
19
two-foot walls.
20
and in the past that two-foot wall -- it's really
21
specific to each park, but there can be a one-foot to a
22
two-foot ledge that's basically just submerged under
23
water.
24
the wall or outside the wall.
25
You step up and there's a two-foot wall
So, you can step either on the wall or inside
Q.
So, is that two-foot high going down to where
CARLIN ASSOCIATES
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1
2
the level of the whale's under belly is, if you will?

A.
If this is a two-foot wall, there's a ledge
that's at water height.
whale could be here.
you can walk if you need to, or you can be dry on the
other side of the wall.
7
8
Q.
It can be two feet and then the
So, you have this much space that
This is land and this is water.
So, the two-foot wall rises two foot above
the land, right?
A.
Yes.
10
Q.
And, the whale is down even lower?
11
12
it may -A.
For the most part, the water level on this
13
side is at ground level.
14
and it's the same amount of height.
15
I mean,
Q.
16
The wall is literally two feet
I think that's clear.

So, the husbandry behaviors were to be
17
performed from behind the wall except for urine
18
collections at slide out and sonograms performed in med
19
pool channel areas, right?
20
A.
Yes.
21
Q.
So, they determined that they could do these
22
husbandry procedures behind the wall?
23
A.
Yes.
24
Q.
And, also in letter E, they're looking at
25
pool side modifications to the B pool that would provide
CARLIN ASSOCIATES
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a safer trainer and animal interaction area, right?
A.
Yes.
Q.
And, to your understanding, did they develop
4
5
6
7
8
something to provide a safer interaction area there?

A.
They did build a shallow slide-out area where
they could slide a killer whale up next to the trainers.

Q.
So, they were able to make modifications that
provided a safer interaction area?
A.
Yes.
10
Q.
Now, under other park curator comments, Sea
11
World of Florida -- and that's your comment there,
12
you've even signed your name, right?
13
A.
Yes.
14
Q.
And, you write that -- essentially, what
15
you're saying here is that bad whales can become less of
16
a safety issue.
17
aggressive tendencies can become less aggressive through
18
behavioral conditioning if you will?
That is, that whales that have had
19
A.
Yes.
20
Q.
And, Thad Lucinak writes under the corporate
21
animal training part, he says, "Implementing the
22
corrective action above will eliminate most of the
23
potential risks that Orkid and Kasatka have
24
demonstrated," right?
25
A.
Yes.
CARLIN ASSOCIATES
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1
2
Q.
Most of the potential risks.
And those risks
would include potential drowning, right?
A.
Drowning of a --
Q.
Of a trainer; not of the whale.
A.
Theoretically, yes.
Q.
I mean, those are the potential risks that
Sea World had seen with Orkid and Kasatka, right?
A.
That they would drown somebody?
Q.
That they could engage in a behavior that
10
could result in drowning, right?
11
A.
Yes.
12
Q.
So in 2006 both whales were made nonwater
13
work whales, right?
14
A.
Yes.
15
Q.
If you would turn to Page 610 and go through
16
another incident report here; and, hopefully, we will go
17
through these last few rather quickly.
18
A.
(Reviewing exhibit).
19
Q.
You were familiar with the incident report
20
Okay.
even before you reviewed it just now, right?
21
A.
Yes.
22
Q.
That's 1997 at Sea World at Ohio, right?
23
A.
Yes.
24
Q.
And involving a trainer, Kristin McMahon-Van
25
Oss, right?
CARLIN ASSOCIATES
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A.
Yes.
Q.
Who is now at Sea World of Florida?
A.
Yes, sir.
Q.
As one of your assistant supervisors at Sea
World of Florida?
A.
Yes, she is.
Q.
How long had she been an assistant supervisor
prior to -- let me ask, was she an assistant supervisor
before the incident with Dawn Brancheau?
10
A.
I don't know.
11
Q.
And, on this first Page 610, it says:
12
13
"When did you last work this animal in the

water?"
14
15
And where it says, "Not approved for water

work," is that referring to the whale or to the trainer?
16
A.
To the trainer.
17
Q.
So, this trainer is saying, "I didn't work
18
this whale in the water because I'm not approved for
19
it"?
20
A.
Correct.
21
Q.
If you had turn to the third page of this
22
report at 612, it says, "Give a complete account or
23
analysis of the incident."
24
look at that?
25
A.
Have you had a chance to
Let me read it again.
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Q.
Sure.
A.
Q.
So, this was an incident where a whale named
Okay.
Winnie was performing a lineup and receiving tactile
both of which she accepted, right?
A.
Yes.
Q.
So, what that means performing a lineup, can
8
9
you explain to the Judge what that means?

A.
A lineup instead of the whale sitting up
10
looking at it, you ask them to actually lay parallel to
11
the pool side deck that you're working.
12
the entire body laid out next to you.
13
Q.
So, you have
And after the whale named Winnie lined up,
14
Ms. McMahon-Van Oss administered tactile to the whale,
15
right?
16
A.
Yes.
17
Q.
She was rubbing him -- excuse me, rubbing
18
her, right?
19
A.
Yes.
20
Q.
And while receiving this tactile to the
21
whale's face about one and a half feet from the trainer,
22
the whale then moved up and took the trainer's
23
sweatshirt in her mouth, right?
24
A.
Yes.
25
Q.
And, then, pulled the trainer into the pool?
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1
2
A.
The way I read it, "She slowly pulled to the
right and I fell in the pool."
Q.
Okay.
A.
So, she lost her balance and fell in the
Q.
That's fine.
5
6
pool.
Now, if you would turn back to
the preceding Page 611, it indicates that, "No
precursors were observed.
pre-session, before the session"?
Both whales were calm
10
A.
Yes.
11
Q.
And, so there were no precursors here prior
12
to this incident?
13
A.
Okay.
14
Q.
And, you would agree that there were no
15
precursors here?
16
A.
I have to believe what they write here, yes.
17
Q.
So, without any precursors, in fact, if you
18
turn to Page 613, it says under the originating park
19
curator's comments that the employee's acts did not
20
contribute to this accident, right?
21
A.
Correct.
22
Q.
The employee did nothing wrong?
23
A.
24
Q.
That's what it says, right?
25
A.
Yes.
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Q.
And, as far as what could have been done to
prevent this accident, it says that you can prevent it
through stronger de-sense of loose articles, right?
A.
Yes.
Q.
And, what that means is somehow you could
train the whale to be desensitized to, for example, the
sweatshirt that was loosely being worn by this trainer,
correct?
A.
Yes.
10
Q.
And, so again they suspended water work with
11
this whale until they have recalled and de-sensed back
12
up to 100 percent under all scenarios, right, or
13
scenarios, as some people like to say?
14
A.
Yes.
15
Q.
And, after suspending -- well, what that
16
means is that until the whales respond to recall signals
17
all of the time 100 percent of the time, right?
18
A.
That's our goal.
19
Q.
I mean, it says, "We're not going to resume
20
water work until we reach that goal," correct?
21
A.
Yes.
22
Q.
So, how many attempts are taken into account
23
in deciding that you have met that goal when you have
24
reached 100 percent certainty or predictability?
25
A.
It's the actual de-sense session we do at the
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end.
I know we've used that word, and I want to explain
it a little bit.
De-sense is preparing an animal to react to
an environment for all sorts of activities and things
occurring in the pool.
get them familiar with something.
de-sense, you familiarize the animals with people in the
water.
a whale with dry clothing.
When you de-sense an animal, you

When we say water
When we do clothes de-sense, it's familiarizing
10
Obviously, in this particular case, the
11
sweatshirt was a novelty to this particular killer
12
whale, and her curiosity had her grab the sweatshirt.
13
She got pulled in or fell in, whatever, but the point is
14
that she was fascinated with it.
15
The good part about this story is that she
16
did respond to the hand slap.
17
the first one or the second one and it might not have
18
been a hundred percent, but the reality is she safely
19
got out of the water.
20
back, came over and she got out of the water.
21
22
23
Q.
It might not have been
The whale responded to the call
Fortunately, the whale responded after doing
something that was potentially very dangerous?

A.
But, you a train for those events.
The water
24
de-sense that that whale had gone through had helped us
25
prepare ourselves for that particular situation.
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1
2
Q.
I understand but the whales have not always
responded and let the trainer out without injury, right?
A.
Yes.
Q.
So, the de-sense session, you say training to
ignore personal objects and trainer gear, or the report
says training to ignore personal objects and trainer
gear, right?
A.
Yes.
Q.
And, you said here that the sweatshirt was a
10
novelty that that was the first time perhaps that this
11
whale had seen a sweatshirt?
12
A.
Or it may be the first time she had an
13
opportunity to actually reach up and grab the
14
sweatshirt.
15
16
17
18
Q.
We can't be sure whether it was the first
opportunity or not or whether it was first time?

A.
We know she had a fascination for it,
obviously.
19
Q.
At least we know it after she did it, right?
20
A.
What do you mean?
21
Q.
Well, beforehand, we didn't know that this
22
whale might have a fascination, as you put it, about the
23
sweatshirt?
24
A.
We didn't know it until she reacted to it.
25
Q.
Right.
And, so in evaluating this incident,
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this novel incident, this novel occurrence -- will you
accept those words?
A.
Yes.
Q.
And Page 614, California Sea World says in
critiquing the de-sense, it says, "Our hope is" -- I'm
reading three lines up from the bottom of Sea World of
California's comments -- "But, the hope is that you plan
to eventually desensitize all the whales to work well
with you regardless of what you're wearing," right?
10
It
says that?
11
A.
Yes.
12
Q.
And, it goes on to say, "You can't guarantee
13
that this apparel," and then in parentheses, it says,
14
"(or hair, objects, etcetera)" will never be within
15
reach, right?
16
A.
Yes.
17
Q.
"It's better to address the problem," right?
18
A.
Yes.
19
Q.
So, Sea World is now recognizing that there's
20
a potential problem that a trainer's hair or sweatshirt
21
or the like could be something that a whale might want
22
to grab on to?
23
A.
24
obvious here.
25
during this event.
Yes, I think that they were stating the

This is not an epiphany that occurred
He knew it many, many times before
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this.
We have been doing water de-sense for many years
prior to this.
They're just restating the obvious in my mind
to refresh everybody's minds that those are the
situations that we need to prepare with de-sense.
Q.
That we need to keep hair and objects and
what we're wearing away from the whales or else have the
whales not react to them?
A.
That would be a better statement.
We know
10
they're going to have access to those things.
11
to train them what to do with those particular articles,
12
and we do train our animals to react appropriately
13
through a water de-sense program with all those things.
14
Q.
We need
And, you wanted to train them so you could
15
address the problem so that somebody wouldn't be pulled
16
into the water, right?
17
A.
In part, yes.
18
Q.
I mean, based on this incident where a
19
trainer was pulled in, that's what one of the goals was
20
to de-sense them so they wouldn't pull a trainer in by
21
hair or sweatshirt or otherwise?
22
A.
Yes.
23
Q.
And, in fact, you recognized, Sea World
24
recognized that that is a risk, that is something that
25
could happen unless you take action that actually
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prevents a whale from reacting to these kinds of items,
novel or otherwise, right?
A.
Yes.
Q.
Now, I want to talk about this whale,
Kasatka.
That's one that Sea World owns, right?
A.
Yes.
Q.
That's a female killer whale in San Diego?
A.
Yes.
Q.
Sea World has had problems or difficulties,
10
if you will, with Kasatka?
11
A.
We've had incidents with her, yes.
12
Q.
Many incidents with her?
13
A.
Yes.
14
Q.
I mean, you don't disagree with "many,"
15
right?
16
A.
Is there a certain page you're going to?
17
Q.
I will.
18
A.
Okay.
19
Q.
We'll get there.
20
page.
Well, let's go to that
Page 681.
21
A.
Can I read this quickly?
22
Q.
Absolutely.
23
A.
(Reviewing exhibit.)
24
Q.
You have seen an incident report before
25
today, right?
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A.
Yes.
Q.
And, you note that it's from June of 1999,
and involving a trainer Ken Peters, right, on Page 681?
A.
Let me just look.
Q.
And, again, this is the whale, Kasatka,
Yes.
right?
A.
It is.
Q.
And, the type of incident involved here was a
show, right?
10
A.
It was.
11
Q.
And, on the top of the fourth page of this,
12
that would be Page 684, in the first sentence, it
13
indicates it says, "At the start of the show"?
14
A.
Yes.
15
Q.
So, there's no question that this was a show,
16
right?
17
A.
Yes.
18
Q.
A performance?
19
A.
Yes.
20
Q.
And, then, on Page 4, it gives an account of
21
the incident.
22
A.
Yes.
23
Q.
And, in the account, what we see is that
It's a rather lengthy account, right?
24
Kasatka, during this, actually tried to grab a trainer's
25
hand with her mouth, right?
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A.
Yes.
Q.
And, obviously, that's something that Sea
World doesn't want to happen, right?
A.
Yes.
Q.
Because if the whale grabs the trainer's
hand, the whale could potentially drag, if you will, the
trainer anywhere in the pool, right?
A.
Yes.
Q.
It could pull or drag the trainer under
10
water, right?
11
A.
Yes.
12
Q.
And, then, on the pages from 682 to 686, you
13
see there at the top of each page there's these bold
14
faced questions that are asked in the evaluation, for
15
example --
16
A.
Say that again.
17
Q.
Sure, I'm talking about the second to the
18
sixth, Page 682 through Page 686?
19
A.
Okay.
20
Q.
At the top of the page after it says,
21
"Corporate Incident Report, Confidential," it has a
22
question that Sea World has chosen to put on its form
23
and ask, right?
24
A.
Yes.
25
Q.
For example, on Page 682 it says, "List any
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observed social interactions," or essentially
precursors, right?
A.
Yes.
Q.
And, these are questions, these are things
that Sea World wants to know.
of the incident, right?
Part of it is evaluation
A.
Yes.
Q.
They wouldn't be asking it if they didn't
want to know, right?
10
A.
That's part of all the information, yes.
11
Q.
And, Sea World expects the trainers to be
12
able to provide that information, right?
13
furnish answers to those questions?
14
15
16
17
To be able to
A.
To the best of your ability and observation,
Q.
And, they're not rhetorical questions.
yes.
They
have meaning, right?
18
A.
Yes.
19
Q.
And, these are questions that Sea World has
20
developed as part of its evaluation, how to evaluate
21
incidents, and Sea World expects that these questions
22
have answers, right?
23
A.
Yes.
24
Q.
And, on the top of Page 5, the bold faced
25
question:
"What could have been done to prevent this
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incident," that's something that Sea World wanted to
evaluate, right?
A.
Yes.
Q.
This is a question that suggests that perhaps
there's something that could be done; that we could do
differently, right?
A.
It implies that, yes.
Q.
Because --
A.
If appropriate.
10
Q.
Right, if appropriate, and it may be
11
appropriate because trainers make errors, we've agreed,
12
right?
13
A.
Yes.
14
Q.
And Sea World realizes and you realize that
15
trainers make errors, right?
16
A.
Right.
17
Q.
That's part of this whole learning from what
18
I mean that's --
happened?
19
A.
Yes.
20
Q.
And, so the point of this question and
21
writing up is to see what it is that trainers did wrong
22
that you could learn from?
23
24
25
A.
Or if a whale did something wrong or if
nothing went wrong, and we just saw something.

Q.
And, on the sixth page, Page 686, in the
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first sentence it states:
"We should not have entered
the water with Kasatka due to the social precursors that
existed," right?
A.
Yes.
Q.
I've read that correct?
A.
Yes.
Q.
So, either the trainer missed the precursor
or the trainer failed to respond properly, right?
A.
Yes.
10
Q.
Again, something happens and trainers may
11
make errors, right?
12
A.
Yes.
13
Q.
And, then, on the ninth page, which is Page
14
689, the other curators have their comments, other park
15
curators' comments, right?
16
A.
Yes.
17
Q.
And, again, I'm not sure but I think we have
18
been over this that the other parks reviewed an incident
19
report from each other's parks, right?
20
A.
Yes.
21
Q.
Because the parks want to share the
22
information because they want to try to ask uniformly
23
how they deal with situations like this?
24
A.
Yes.
25
Q.
And, so this report we're looking at, this
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related to an incident that happened in 1989, right?
A.
Say that again?
I'm sorry.
Q.
This report that we're looking at is one
that deals with an incident that happened in 1999,
right?
A.
Yes.
Q.
And, on the third line on Page 9, it
indicates this was an unfortunate incident.
It states:
"Although this was an unfortunate incident," right?
10
A.
Yes.
11
Q.
These are your comments, by the way, Sea
12
World of Florida?
13
A.
Yes.
14
Q.
"But it's an excellent learning tool," right?
15
A.
Yes.
16
Q.
But, in fact, that's a matter of opinion that
17
may not be true?
18
A.
Say that again?
19
Q.
Well, you say it's an excellent learning
20
I'm sorry.
tool, right?
21
A.
Yes.
22
Q.
But, that's a matter of opinion as to how
23
24
25
excellent it is, right?

A.
I don't know if I would agree with you.
is a -- we knew very clearly the precursor that
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547
occurred.
giving us feedback to what they saw.
in the water based on the fact that we didn't and were
not able to communicate to him what was observed in the
social structure behind there.
We had enough observers there watching and

We put a trainer
And, in my assessment which I would think
that everybody within the system would think this was a
great learning tool and the fact that we had very clear
precursors that occurred.
10
We didn't react to them and
we had a situation.
11
Now, we know as we move forward, we now have
12
a valuable tool to know that what happens in our back
13
pools is an important step.
14
given Sea World of Florida an opportunity to review and
15
evaluate the situation with all trainers, giving them an
16
opportunity to learn the situations that rarely occur.
17
And, it even says, it has
We valued these because they were so rare
18
when we did get them, this was an awesome learning tool
19
because we didn't have this happen very often if at all,
20
especially within our Sea World of Florida park.
21
So, when we were able to see what somebody
22
did and the outcome of it and make any possible changes
23
we may make in the future, it's a great learning tool.
24
25
Q.
Because you're saying that these are such
infrequent occurrences, it's a great learning tool?
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sorry, it's great because you don't see things like this
very often?
A.
No, we don't.
So when we do have a
situation, we have a clear plan of what we could have
done better that we believe would have changed the
outcome of it, yes, it becomes an excellent training
tool.
8
9
Q.
And, seven years later with this whale, there
was yet another incident with her, right, in 2006?
10
A.
2006, yes.
11
Q.
A very serious incident?
12
A.
Yes.
13
Q.
An incident really where a man's life was in
14
the balance; held in the balance by this whale, right?
15
16
17
A.
He was pulled under for an extended period of
Q.
And, this is after having had nine incidents
time.
18
with this whale, Kasatka, that this incident in 2006
19
occurred, right?
20
A.
Yes.
21
Q.
I want to play this video of this serious
22
23
incident that happened in 2006.

MR. BLACK:
And, I mean, I'm mindful of the
24
clock.
I'm thinking, Your Honor, I'm guessing what you
25
might be asking is how much more I have.
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The video is
549
somewhere in the neighborhood of ten minutes.
probably then have about ten to fifteen more minutes of
questioning in addition to the video.
expect to be asking any questions during the video.
I'll just play the video.
JUDGE WELSCH:
finish your examination.
before you start with Sea World's Cross-Examination.
MS. GUNNIN:
I do not really
Why don't we go ahead and

Then, we'll take a lunch break
And, Judge, just so I understand,
10
that will be the end of your examination or does it end
11
after that?
12
13
MR. BLACK:
The video and then I expect to have
somewhere around 15 more minutes.
14
JUDGE WELSCH:
15
will be ready for lunch.
16
JUDGE WELSCH:
17
(Off the Record)
19
MR. BLACK:
Based on technical difficulties, I
guess we stand adjourned, Your Honor, for lunch.
21
22
12:30 sounds safe unless there
are some technical difficulties.
18
20
I'm anticipating around 12:30 we
JUDGE WELSCH:
Let's be back at a quarter after
1:00.
23
---o0o---
24
25
was adjourned at 12:10 p.m.)
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Afternoon Session
1:20 p.m.
for identification entered into the record).
JUDGE WELSCH:
Mr. Black, give me some information
as to what we're doing.
marked for identification as Exhibit C-9.
MR. BLACK:
10
11
JUDGE WELSCH:
This is a video that has been
Yes, Your Honor.

Tell me what is the video that
we're going to be watching?
12
MR. BLACK:
The video is a video produced in
13
this case to us by Sea World that is an incident with
14
trainer, Ken Peters, in San Diego in November of 2006,
15
and it shows an interaction that Mr. Peters had with a
16
whale, Kasatka, that we've been talking about.
17
JUDGE WELSCH:
18
familiar with this video?
19
MS. GUNNIN:
20
JUDGE WELSCH:
21
MR. BLACK:
Ms. Gunnin, I'm sure you're
Yes, Your Honor.

Do you want to play the video?
I'm going to play the video.
22
don't expect to ask any questions.
23
us to pause it or anything for any reason, just let me
24
know.
25
JUDGE WELSCH:
If the Court needs
I want to make sure, Mr. Coe,
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that it's not a problem.
MR. COE:
It's not, Your Honor.
JUDGE WELSCH:
MR. BLACK:
Thank you.
I said I wasn't going to ask any
questions during the video, but I just want to ask two
questions.
JUDGE WELSCH:
8
9
10
You just can't help yourself.

(Video Presentation)
BY MR. BLACK:
Q.
Mr. Tompkins, the video that we're watching
11
the man with the shaved head with the whale, did you see
12
that a few moments ago?
13
A.
Yes, I did.
14
Q.
That's Ken Peters?
15
A.
Ken Peters.
16
Q.
And that whale was Kasatka?
17
A.
Yes.
18
Q.
And you've seen this video before?
19
A.
Yes, I have.
20
Q.
That's an incident that happened in November
21
of 2006 in San Diego?
22
A.
23
MR. BLACK:
24
25
Yes.
Unless the Court wishes to see any
more, I'm going to cut it off here.

JUDGE WELSCH:
At this juncture on the record
CARLIN ASSOCIATES
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1
2
3
we have completed viewing the video, Exhibit C-9?

MR. BLACK:
That's correct and at this time, we
would offer C-9 into evidence?
JUDGE WELSCH:
Any objections to C-9?
MS. GUNNIN:
I'm sorry, I did not hear.
MR. BLACK:
I'm offering C-9.
JUDGE WELSCH:
The video.
MS. GUNNIN:
No objection.
JUDGE WELSCH:
10
objection.
11
12
13
BY MR. BLACK:
14
Q.
15
Mr. Tompkins, there was an incident report
that was prepared for this particular incident, right?
16
A.
Yes.
17
Q.
I think you're probably locating that and
18
have that in front of you?
19
A.
Yes, sir.
20
Q.
That's Page 1372?
21
A.
I have it.
22
JUDGE WELSCH:
23
1372, that's at the back of
Exhibit C-6?
24
MR. BLACK:
25
BY MR. BLACK:
Yes, Your Honor.
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Q.
And, the video that we saw, the reason that
there was such extensive video, that was the video that
was shot by cameras run or operated by Sea World at
Florida?
A.
Yes.
Q.
And that was during a show, right?
A.
Yes, it was.
Q.
If you would turn to Page 1375 where it's got
"other park curator comments"?
10
A.
Yes.
11
Q.
And, those, "Sea World of Florida comments,"
12
those are your comments, right?
13
A.
Yes, it is.
14
Q.
You commended their emergency response plan,
15
right?
16
A.
Yes.
17
Q.
Now, Ken Peters, you saw him there at the end
18
being treated?
19
his foot as a result of this incident?
He broke his foot or broke some bones in
20
A.
I believe so, yes.
21
Q.
And, as a result of this incident, Sea World
22
of California stopped doing water work with Kasatka?
23
A.
Yes, they did.
24
Q.
They stopped doing water work before she
25
could have an opportunity to injure any more trainers?
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A.
In that type of water work setting.
Q.
In any setting?
A.
We still worked her.
her and did dry work with her.
work.
6
7
Q.
We still performed with

We just stopped water
Because water work, we have seen pretty
vividly what the results with her could be, right?
A.
Yes.
Q.
And, so after that incident the first step is
10
to pull the trainers from the water, right?
11
reading from the report right now.
12
me.
13
14
15
I'm not
This is just you and
A.
We pulled trainers that day but only for that
Q.
And, what Sea World wanted to do was again
day.
16
evaluate what they could do better and what they did
17
wrong, right?
18
A.
Correct.
19
Q.
And, so that made sense.
You were not
20
surprised when trainers were pulled from the water, at
21
least on that day, right?
22
23
24
25
A.
And, we only pulled trainers at Sea World of
California.
Q.
We didn't pull from other parks.
But, I mean, you weren't surprised that they
were pulled from Sea World of California, right?
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A.
No.
Q.
I mean, that wasn't a surprising response?
A.
No, not after an incident like that.
Q.
And, they pulled them so they could evaluate
what to do next?
A.
Yes.
Q.
It was another opportunity to evaluate
8
9
everything if you will?

A.
Yes, we did.
This incident made us really
10
evaluate not only that particular situation but, again,
11
it was a chance for Sea World to look at all of their
12
protocols and what we were going to be doing around the
13
Shamu Stadium with our killer whale management plan.
14
Q.
And, in doing that and evaluating, you're
15
saying Sea World did take that opportunity to evaluate
16
everything, right?
17
A.
They did.
18
Q.
And, the evaluation, the conclusion after
19
looking at everything was that the system is not broke,
20
right?
21
A.
Well, I think that's a difficult way of
22
putting it.
We found that the actual process by which
23
we trained animals is not broke.
24
more tools and emergency equipment, evaluate our
25
emergency response plan, our communication, adding
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videos to help back stage viewing, a lot of system and
SOP review was done, and what we found out is that we
needed to put some more equipment is what we felt.
4
5
Q.
So, the system of operant conditioning and
positive reinforcement, you concluded that wasn't broke?
A.
No.
Q.
No, you didn't conclude that?
A.
No, we don't think that system was broke.
Q.
You don't think that system was broke after
10
having seen that video, right?
11
A.
No, I don't.
12
Q.
And, another whale that Sea World has in
13
California is a whale named Orkid, we've talked about a
14
couple of times?
15
A.
Yes.
16
Q.
And, Orkid has a long history of being
17
involved in aggression incidents, right?
18
A.
Yes, she does.
19
Q.
I think I counted somewhere around 15
20
21
22
incidents, right?
A.
I would have to look at the total number but
that's --
23
Q.
In the ballpark?
24
A.
Yes.
25
Q.
So, since November of 2006, Sea World has
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decided not to do water work with Orkid as well, right?
A.
Correct, yes.
Q.
And, again, stopping water work with that
whale was a means to protect the trainers, right?
A.
Yes.
Q.
A means to address any hazard posed by Orkid,
right?
A.
Yes.
Q.
Now, turning back to an incident we were
10
looking at right before lunch?
11
A.
Do you have the page?
12
Q.
Page 681.
13
A.
Yes, I do.
14
Q.
And, on Page 687, I think it's the seventh
Do you have that in front of you?
15
page of that document, there's an evaluation of
16
corporate incidents that have happened through that time
17
in 1999; is that correct?
18
A.
I see the graph, yes.
19
Q.
And, the graph says number of corporate
20
incidents, active whales.
It shows that as of 1999, for
21
example, the whale, Kasatka, had been involved in eight
22
incidents, right?
23
A.
I see that, yes.
24
Q.
And Orkid had been involved in ten incidents
25
in 1999, right?
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A.
Yes.
Q.
There was a whale on there, Kalina, who had
been involved in ten incidents, right?
A.
Yes.
Q.
And, Kalina that was the original baby Shamu
born in captivity?
A.
Yes.
Q.
And her life, she was at Sea World of Florida
when she passed away, when she died, right?
10
A.
Yes.
11
Q.
And, Katina is shown with five incidents,
12
right?
13
A.
Yes.
14
Q.
And, Taku, we talked about, he has six
15
incidents, and there are some other whales listed there
16
that have lesser numbers of incidents, right?
17
A.
Yes.
18
Q.
And, Keto is listed on there and he as of
19
1999 was involved in three incidents, right?
20
A.
Yes.
21
Q.
Assuming that these numbers were accurately
22
prepared, right?
23
A.
Yes.
24
Q.
And after 1999, if we look through Exhibit
25
C-6 what we'll find is that Kasatka has had four more
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incidents since 1999?
A.
Are you looking at a specific --
Q.
I am not.
It's not on this document here.
It's based on what is in C-6.
A.
Um-hum.
Q.
And, you don't have any reason to doubt that
number?
A.
No.
Q.
And one of those four more incidents was this
10
incident with Mr. Peters that we just watched on the
11
video, right?
12
A.
I think we need --
13
Q.
If you can't answer my question "yes" or
14
"no," then let me know, but I would ask for a "yes" or
15
"no" if it's possible to answer it that way?
16
A.
Yes.
17
Q.
And, Orkid was involved in five more
18
incidents after 1999, right?
19
A.
Yes.
20
Q.
Including an incident in November of 2006
21
dragging or pulling Mr. Rokeach to the bottom of the
22
pool and after which Sea World of California stopped
23
doing water work with him or her, right?
24
A.
Her.
25
Q.
And, we looked through or we talked about
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Kayla this morning and her animal profile, and we
observed seven incidents on our animal profile, right?
A.
Yes.
Q.
And, seven that is that occurred after 1999,
right?
"unrecorded," I mean they weren't in the incident logs
that we have in this case, right?
8
9
10
11
And six of those were unrecorded?
A.
And by
She was in Sea World Texas, and I was Sea
World of Florida.
So, I can't really respond to why
those incidents didn't make the book.

Q.
I understand.
My point is not why they
12
didn't make the book.
I'm just saying that there were
13
seven incidents, six of which are not in the book,
14
right?
15
A.
Correct.
16
Q.
And, then, Keto, I don't know -- I haven't
17
counted how many incidents he was involved in after
18
1999, but I am aware of the most tragic incident that he
19
was involved in in the death of the trainer at Loro
20
Parque, right?
21
A.
Yes.
22
Q.
So, even after this evaluation in this
23
incident report from 1999, it still shows several
24
incidents occurring, several serious incidents
25
occurring, right?
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A.
What do you mean by "serious"?
Q.
When I say "it shows," the record shows that
there were several serious incidents after that, and
I'll give you an example of what I mean by serious.
A.
Yes.
Q.
Obviously, Ken Peters, right?
A.
Yes.
Q.
Obviously, the Orkid incident?
A.
Serious, yes.
10
Q.
The incident with Keto at Loro Parque, right?
11
A.
Yes.
12
Q.
Very serious.
And the incidents even that we
13
looked at with the whale Kayla that didn't result in
14
injury, those were still serious incidents, right?
15
There was still aggression exhibited when she lunged at
16
the trainer on at least one occasion, struck the
17
trainer, right?
18
A.
Yes.
19
Q.
Now, you're familiar with standard operating
20
procedures or the SOP's that each of the parks has for
21
the trainers?
22
A.
They each have SOP's.
23
Q.
And they still have SOP's?
24
A.
Yes.
25
Q.
And, at the end of that SOP for each park,
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there's a page, it's the very last page that the trainer
signs, right?
A.
Yes.
Q.
And, that page has language identical at Sea
World of California and at Sea World of Texas as it does
with the Florida language, right?
7
8
A.
I don't know what language you're talking
about.
Q.
Do you want me to show you?
10
A.
Please.
11
JUDGE WELSCH:
Mr. Black, I just want to make
12
sure we're talking about the same thing.
13
referring to Exhibit C-1?
14
MR. BLACK:
15
BY MR. BLACK:
16
Q.
17
Are you
Yes, Your Honor.
Mr. Tompkins, if you would turn to the last
page of C-1?
18
A.
I see it.
19
Q.
That's the language I'm talking about.
20
A.
Okay.
21
Q.
And, that language is virtually identical in
22
the manuals for each of the parks, right?
23
A.
Yes.
24
Q.
Now, I'm going to turn here to something
25
different so you don't have to read in anticipation, I'm
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going to ask you about that.
At Loro Parque after Alexis Martinez was
killed, Loro Parque stopped doing water work with its
whales, right?
A.
Yes, they did.
Q.
And, they have ceased doing water work with
their whales, apparently a permanent decision so far as
you know, right?
A.
Yes.
10
Q.
And you're aware that the government of Spain
11
did an investigation of that incident, right?
12
A.
I'm aware of one.
13
Q.
You're aware that they concluded that being
14
15
16
17
18
19
in the water with the whales is inherently dangerous?

A.
I was not aware of the outcome of that
report.
Q.
You're not aware of the outcome of that
report?
A.
No, that park is a separate park from us.
20
They manage themselves, it's operated by the owner, he
21
makes his decisions, he deals with his own government
22
issues.
23
We're there as consultants.
We don't micro
24
manage or deal with the day-to-day management of the
25
animals or the people, and we're not involved in his
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permitting or his dealings with the government.
Q.
So, you haven't sought to obtain a copy of
that report and to review what that report might have
found and recommended?
A.
I haven't.
Q.
Well, as the head corporate curator of
animals at Sea World Parks and Entertainment, you have
not either personally or directed somebody to do that?
A.
I was not aware of that report.
10
Q.
Would it make a difference if you were aware
11
of it whether you would have sought it out?
12
A.
Not to speculate.
I don't know.
The way we
13
deal with that park, it wasn't my responsibility to look
14
into their paperwork or their legal efforts with their
15
government.
16
Q.
Wouldn't it be the kind of thing that you
17
would want to know as to how somebody else who
18
investigated an incident with killer whales that
19
resulted in a death, how they determined the
20
effectiveness of the safety of the trainers was?
21
22
23
24
25
A.
I would find it interesting reading, sure,
Q.
Interesting but probably not going to
yes.
influence your determination that it ain't broke?

A.
I can't speculate.
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I don't have that
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document.
I don't know what they wrote; I don't know
what they put.
Q.
So, you're saying you would like to know
because it's possible that if they found that being in
the water with the whales was inherently dangerous, then
Sea World would consider not getting back in the water
with the whales, based on that report?
8
9
A.
We, of course, always would want to hear what
somebody else feels and thinks about our program, but
10
that doesn't necessarily dictate our actions, nor do we
11
follow them a hundred percent unless we believe in
12
what's written on there.
13
And, again, I won't speculate.
I have no
14
idea that they wrote that in the report.
15
whether I agree or disagree at this point without
16
reading that full document.
17
I can't say
I personally feel like pulling the trainers
18
out of the water in Loro Parque was not the decision
19
that I would have made, but I don't make those
20
decisions.
21
the partnership we have with that park.
22
dictate, we don't decide, we don't manage day-to-day.
23
It's run and operated by their staff, their management.
24
They control their program 100 percent.
25
Q.
Again, we need to make sure we understand

We don't
So, you're fairly confident that if you were
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running that program, you would not have ceased water
work with the whales?
A.
I'm not saying I would not have ceased water
work and evaluated, but just as we are trying right now,
our goal is to see what we can do at being better at
being underwater with the animals.
I probably would have taken.
Q.
That's the approach
Just a couple of final questions.

In your article about reducing cetacean or
10
marine mammal aggression, do you recall that there's a
11
table in that article with a Point Number 5 that reads,
12
"Keep records so trainers can learn from their own
13
mistakes"?
14
A.
Yes.
15
Q.
And, so part of your learning at Sea World is
16
waiting for mistakes to happen, right?
17
how you learn.
18
A.
Waiting for mistakes to happen, we learn from
19
the mistakes if and when they occur.
20
mistakes.
21
22
Q.
That's part of
We don't plan on
We plan for success.

I understand you plan for success, but you
also learn from mistakes, right?
23
A.
Yes.
24
Q.
And, so part of the way or one way to look at
25
Sea World's program is that they want to see how well
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their theory of operant conditioning works to protect
trainers, right?
A.
Yes.
MR. BLACK:
JUDGE WELSCH:
No further questions, Your Honor.

Mr. Black, are you offering
Exhibits C-7 and C-8?
MR. BLACK:
8
9
10
meant to, yes, Your Honor.

JUDGE WELSCH:
Any objection to C-7?
C-7 is
the animal profiles.
11
MS. GUNNIN:
12
JUDGE WELSCH:
13
I'm sorry, if I haven't done so, we

Any objection to C-8?
That's
the Tilikum animal profile.
14
MS. GUNNIN:
I think the one dated June 2010?
15
JUDGE WELSCH:
Yes.
16
MS. GUNNIN:
Our only objection would be that
17
it's post accident and not relevant to any consideration
18
in this proceeding.
19
JUDGE WELSCH:
I'm going to go ahead and admit
20
C-8 into evidence and I think I said C-7 is admitted
21
without objection.
22
(Whereupon, Complainant's Exhibits C-7 and C-8,
23
previously marked, were admitted into evidence)
24
JUDGE WELSCH:
25
With regard to C-6, the incident
reports, you asked me to delay ruling on that until you
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had a chance to look at the reports, I think.
been able to do that?
MS. GUNNIN:
Yes, Your Honor.
Have you
We only would
like to reserve an objection about incident reports
involving other parks that is being California and
Texas, and that is because the issue in the case is
handled as Sea World of Florida, LLC, a separately
incorporated entity.
from other parks.
10
JUDGE WELSCH:
So, we would object to the reports
But, as Mr. Black characterized
11
yesterday, the citation before me is a 5(a)(1) and part
12
of the Secretary's burden of proof is recognized hazard.
13
So on that basis, I will admit C-6 into evidence.
14
15
16
JUDGE WELSCH:
17
18
Now, Ms. Gunnin, do you wish to
examine Mr. Tompkins?

MS. GUNNIN:
Yes, Your Honor.
19
---o0o---
20
CROSS-EXAMINATION
21
BY MS. GUNNIN:
22
Q.
Mr. Tompkins, we're going a back up just a
23
little bit and talk a little bit more about the animal
24
training and the corporate ownership of Sea World and
25
the corporate structure.
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We have talked a lot about the incident
reports today.
Mr. Black.
owners of Sea World, do you recall what that would have
been?
You have heard a lot of questioning by
If you could, tell the Judge, the first
What entity?
A.
Four gentlemen started the park back in 1964,
and that was the date that Sea World actually was
created.
times.
10
13
Did you want to go through each and every one of
the owners?
11
12
Since that time, it's changed hands many, many
Q.
Yes, tell us when the first change would have
A.
I'm going to struggle to be as accurate as I
been?
14
can with dates and times, but the first four gentlemen
15
eventually sold the park.
16
I am so that I can be accurate and that's when HBJ owned
17
the park.
18
JUDGE WELSCH:
I'm going to start from where
Let me just back up for a
19
second.
When you say 1964 is when the Sea World began
20
with these four gentlemen; is that correct?
21
THE WITNESS:
Yes, sir.
22
JUDGE WELSCH:
Does that mean -- was it Sea
23
24
25
World -THE WITNESS:
Sea World of California was our
first park.
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1
2
JUDGE WELSCH:
So, 1964 was when the Sea World
of California was started?
THE WITNESS:
Yes, sir, that was the start of
Sea World.
started building other parks.
Sea World of Orlando was created in 1974, San Antonio
was four or five years later, we had a Sea World of Ohio
park that was created that was in existence for a while.
Of course, the ownership changed.
I'm going to struggle --
Our ownership, like I said, went through several
10
people.
11
Harcourt Bonovich, HBJ.
12
13
They
Q.
One of the ones that I can remember are
Do you recall about the time they would have
acquired the parks?
14
A.
15
JUDGE WELSCH:
HBJ.
I'm going to say early Eighties.

In 1980 when HBJ acquired the
16
parks, would that have included California, Orlando and
17
San Antonio at that point?
18
THE WITNESS:
Yes, sir, it would.
19
JUDGE WELSCH:
Just those three or --
20
THE WITNESS:
We had all four parks at that
22
JUDGE WELSCH:
The one in Ohio?
23
THE WITNESS:
Yes, sir.
24
BY MS. GUNNIN:
25
Q.
21
time.
Was there another owner after HBJ?
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A.
There was Anheuser-Busch.
Q.
Do you recall about what time Anheuser-Busch
3
4
5
6
7
acquired the parks?

A.
I'm going to say maybe 20 years -- so in the
Nineties, 1990.
Q.
I'm taking a guess.
I'm sorry.
After Anheuser-Busch, was there another
owner?
A.
There was InBev.
Q.
And, InBev acquired Anheuser-Busch, correct?
10
A.
Yes, they did.
11
Q.
And since that time, has there been another
12
13
14
15
change in ownership?
A.
There was.
We are now owned by a company
called Blackstone.
Q.
And, from that ownership, are there --
16
there's another corporate entity, correct?
You work for
17
the corporate entity, Sea World Parks and Entertainment?
18
A.
Yes, ma'am.
19
Q.
And, what is Sea World of Florida's
20
relationship to Sea World Parks and Entertainment?
21
A.
They're one of the three Sea World Parks that
22
we have.
23
World Parks and Entertainment business, but there's only
24
three Sea World Parks.
25
Sea World of Texas, and Sea World of Orlando.
We have, of course, nine parks within the Sea
There's Sea World of California,
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Q.
And, those parks are separately incorporated?
A.
They are.
Q.
And, you worked for Sea World of Florida
prior to working for the corporate entity?
A.
I did.
Q.
And, when did you start at Sea World of
Florida?
A.
February 12, 1978.
Q.
You remember that date well.
10
A.
I do.
11
Q.
And, have you ever worked at any of the other
12
13
14
Very important date for me.
parks?
A.
I have.
I have worked at the San Diego park
and I've worked at the Ohio park.
15
Q.
What years did you work at those parks?
16
A.
Ohio, I went to the Ohio park -- the Ohio
17
park was only during the summertime.
18
for six months.
19
for the summertime, and we would move our killer whales
20
back to whatever park they came from.
21
So, it was open
We would move our killer whales there
I was there the summer of 1985, and after
22
that summer, I was asked to go to Sea World of San Diego
23
for two years after that.
24
went back to the Sea World of Florida.
25
Q.
Then, after that two years, I
How long has it been since you left Sea World
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of San Diego?
A.
That would be 1987.
Q.
So, since 1987 you would have been at Sea
World of Florida until you moved to the Sea World Parks
and Entertainment Corporation?
A.
Yes, ma'am.
Q.
And, from a park structure at Sea World of
Florida, when you were the -- was it the curator that
you were there prior to leaving to work for the
10
11
12
corporation?
A.
I was vice president moved to the corporate
office.
13
Q.
At Florida park?
14
A.
Yes.
15
Q.
Who did you report to within the park?
16
A.
I reported to Brad Andrews and Thad Lacinak.
17
18
I had many direct lines.

Q.
Did you report up to a -- you were the VP
19
which the current VP is now at Sea World of Florida --
20
who is the current VP?
21
A.
Well, the role actually changed.
I was VP of
22
animal training, and when I left the corporate role,
23
they took the vice president responsibilities I had and
24
gave them to John Kerivan who is the zoological VP
25
there, and the curator responsibilities, actually
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management of the staff and the animals went to Kelly
Flaherty Clark.
Q.
And, Ms. Clark reports to Mr. Kerivan?
A.
John Kerivan.
Q.
And Mr. Kerivan reports to the park
president?
A.
Yes, and Brad Andrews.
Q.
Now, when you started in 1978, what did you
9
10
11
start working at the park as?

A.
I was an animal trainer.
I started right off
being an animal trainer.
12
Q.
What part of the park did you work in?
13
A.
Shamu Stadium.
14
Q.
And, if you could, tell the Judge about your
15
progression from an animal trainer?
16
next in your career?
17
A.
Where did you go
Well, I started off as an apprentice trainer
18
basically by the side of the pool learning from other
19
experienced trainers.
20
That first year I stayed apprentice trainer,
21
the next year I made the trainer level which at that
22
time was the next step up.
23
trainer, three steps during that particular time.
24
in three years, I became a senior trainer.
25
the Shamu Stadium.
The next year, I made senior
CARLIN ASSOCIATES
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So,
I stayed at
575
I had about a year and a half time I worked
at the Sea Lion and Otter Stadium because at that time,
we only had two stadiums.
we had the Sea Lion and Otter Stadium.
the two areas that we had trainers.
period of time I went to Sea Lion and Otter for about a
year and a half.
take more of a leadership role at the Shamu Stadium.
became a supervisor,
10
We had the Shamu Stadium, and

So, those were
So, there was a
I came back to Shamu, and I started to

I
In 1985, I'm trying to remember when the
11
Shamu Stadium was built.
12
Stadium which became a separate part of the park.
13
was killer whales.
14
In 1983 we built our new Shamu

It
Prior to that we had dolphins and killer
15
whales together.
16
put them in their own stadium.
17
stadium, the sea lion stadium and the killer whale
18
stadium.
19
So, we separated the killer whales and

We had the dolphin
I moved with the killer whales to the new
20
Shamu Stadium, and at that point, I became the
21
supervisor of that stadium.
22
supervisor, I went to San Diego as a supervisor, I came
23
back and then I became through time assistant curator
24
and eventually the curator and eventually the vice
25
president.
CARLIN ASSOCIATES
I went to Ohio as a
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576
Q.
Now, the career ladder is not the same today
or in January of 2010 as it was when you started,
correct?
A.
No, it is not.
Q.
How is it different?
A.
Well, the progression through those levels
are much different and much more methodical in depth.
We're talking 30 years ago.
new, and what we were doing, the science of applied
10
The industry was new, very
animal science was very new too.
11
So, what we basically did was we did our best
12
to try to understand and to put SOP's together and rules
13
and regulations, and the reality is that we started to
14
relook at -- when I started, we started writing those
15
manuals and actually learning them.
16
So, our career ladder started to be
17
developed.
18
trained, much more physically trained, he needed to
19
understand the science of behavior, and we formalized
20
our plan.
21
career ladder, realizing we needed steps to make sure
22
that everybody knew the basic fundamentals of how to
23
work animals, and then, eventually, we worked up through
24
this progression.
25
We realized that we needed to be much better
And, that's when we started to expand our
We test people doing that progression now.
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We have an approval process for that progression plan,
and none of this existed when I started.
now, and it is very methodical, very in-depth, and very
inclusive of the information that you need to know and
the skill sets you need to be tested on and your
abilities and talents.
But, I look
And, even when you get into the area, even if
you have this checkoff of knowing everything that may be
in the SOP's, there's still that process of sitting next
10
to experienced trainers and actually applying the
11
science that we've taught you.
12
I know that sounds inclusive and it is, but
13
it's not overwhelming because it's not all at one time.
14
When you start as a new trainer, you start with the
15
basic fundamental skill sets.
16
17
Q.
I'm going to draw your attention to C-1 and
R-1 and R-2 that are up there.
Can you find those?
18
A.
C-1, R-2 and R-1.
Okay.
19
Q.
Are those part of the manual that would
20
encompass the training that was in existence in
21
January 2010 at Shamu Stadium?
22
A.
Yes.
23
Q.
And, if you were a trainer, brand new, are
24
25
those the only documents that you are going to look at?
A.
Oh, absolutely not.
CARLIN ASSOCIATES
The way it's done is you
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sit down, and when you're a new person you actually have
a coach with you, and your coach obviously has available
all of these manuals as well as other things, training
tools, career ladder descriptions, area do's and
don't's, all of these are incorporated in here.
your coach sits down with you and, obviously, we don't
hand you the incident reports the first day you come
because you're not working whales.
But,
Your basic fundamental is to learn the
10
husbandry of the area, how to clean the area.
11
very basic, fundamental.
12
once you start to understand the area, the do's and
13
don't's, the safety, and you become familiar with how to
14
deal with the husbandry and taking care and making
15
buckets and stuff, then you get to learn the whales.
16
You start
And, then, as you progress
And, what I mean by learning whales, is you
17
sit by the side of the pool by an experienced person and
18
we go, this is A, B, C and D, and we teach you how to
19
recognize those whales.
20
about the whales each and every day to the point where
21
you become very comfortable recognizing the whales, you
22
know their histories, you know all of their tendencies,
23
and then you're given an opportunity to actually touch a
24
whale next to a senior trainer.
25
And then we teach you more
You're never left alone.
CARLIN ASSOCIATES
For the first two
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or three years of your life, you're not making any
decisions yourself.
experienced person who is coaching you along the way.
You're standing next to a very
It's virtually impossible for you to make a
mistake because of the amount of resources and
experience you have standing next to you, walking you
through all of this information.
8
9
10
JUDGE WELSCH:
Let me ask a question.
I'm
sorry, Ms. Gunnin.

You're the corporate curator for Sea World Park
11
and Entertainment.
When did you get that job?
12
THE WITNESS:
Two years ago, 2008.
13
JUDGE WELSCH:
As corporate curator, I'm not
14
sure if I understand what your job is or your duties
15
are, but from what you're saying, as corporate curator
16
do you set the training policies for all animal trainers
17
at all three parks, or does Ms. Clark set the policies
18
for the animal trainers at Sea World of Orlando as
19
another curator sets the policies for San Diego and San
20
Antonio?
21
That's what I'm trying to figure out because
22
you're answering the question that Ms. Gunnin is asking
23
you in terms of this is what is being done.
24
interpret from that that you're setting the policy as
25
corporate curator for Sea World Parks and Entertainment
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Am I to
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for all of these corporations, separate corporations.
THE WITNESS:
I oversee all of the animal
training in all of our Sea World Parks, but when I say
that, I work very closely with Kelly and the other two
curators.
I don't mandate.
We discuss as a collective
group.
experience, so does Kelly and so does Mr. Garver and so
does Mark Bouchet at the other parks as the curator for
10
Although I have a tremendous amount of
the animal training department.
11
We as a collective group along with one other
12
person, Julie Scardina, who is another curator for the
13
corporate office.
14
decisions together on how we move forward and what we do
15
as a group with the animal training department.
16
Between us, we collective make the
Our goal is to be very consistent from park to
17
park.
So, we don't work individually.
18
make her own mandates and decisions without really
19
discussing it with the corporate group and all of the
20
parks.
21
JUDGE WELSCH:
22
you've described --
Kelly doesn't
So the training systems that
23
THE WITNESS:
Yes.
24
JUDGE WELSCH:
I can interpret that to apply to
25
Sea World of Orlando.
The same training procedures that
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you have described as applicable to Sea World of Orlando
are also the same procedures that are applicable to Sea
World of San Diego?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
And, San Antonio?
THE WITNESS:
Yes, sir.
What I was explaining, these notebooks although
these are made for Sea World of Florida, that's these
same notebooks would be the same if it would be Sea
10
World of California and the same way if it was Sea World
11
of Texas.
12
13
JUDGE WELSCH:
I'm sorry, Ms. Gunnin, I hate to
do that but I'm the Judge.
14
MS. GUNNIN:
I won't object. (Levity)
15
JUDGE WELSCH:
I notice Sea World Parks and
16
Entertainment, the corporation that you work for is
17
located in Orlando.
18
THE WITNESS:
Yes, it is.
19
JUDGE WELSCH:
Is it adjacent to or at the park
20
21
22
23
24
25
facilities where Sea World of Orlando operates?

THE WITNESS:
Our corporate office is about
four miles away from Sea World of Orlando, yes.

JUDGE WELSCH:
So, I guess you have more access
to Sea World of Orlando versus Sea World of California?

THE WITNESS:
Yes.
CARLIN ASSOCIATES
I do have access to it,
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yes.
JUDGE WELSCH:
BY MS. GUNNIN:
Q.
Go ahead, Ms. Gunnin.
Mr. Tompkins, going to -- Mr. Black covered
so many areas -- with regard to the incident reports
that are there before you marked as Exhibit C-6, do
those only include incident reports from shows?
A.
No, no.
Q.
And, prior to your moving to your corporate
10
role, when you were at the Orlando park, were you aware
11
that there was an OSHA inspection that occurred after
12
the 2006 Ken Peters incident?
13
A.
Yes, I was.
14
Q.
And, that was conducted by Cal-OSHA?
15
A.
Yes, it was.
16
Q.
And, after that inspection, did Cal-OSHA
17
issue any kind of citations similar to what was issued
18
in this case?
19
A.
No, they did not.
20
Q.
Did Cal-OSHA make any recommendations --
21
A.
They did.
22
Q.
-- to Sea World?
23
A.
They did.
24
Q.
And, do you recall what those recommendations
25
were?
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1
2
3
4
A.
I do but if I had my notes, I could probably
be much more accurate if that would be allowed.

Q.
Actually, I'm going to show you something
else --
A.
Okay.
Q.
-- to see if this will refresh your memory.
(Whereupon, Respondent's Exhibit R-3 was marked
9
10
BY MS. GUNNIN:
Q.
Mr. Tompkins, I'm going to hand you what has
11
been marked of the Exhibit R-3.
12
document before?
Have you seen that
13
A.
Yes, I have.
14
Q.
What is that document?
15
A.
This is a citation and notification of
16
penalty, State of California.
17
from the investigation, I gather, from the incident.
18
Q.
It is the OSHA report
And, if you would turn towards the end of
19
that document, there's something that's called an
20
information memorandum.
21
22
A.
Do you recognize that?
I don't know if I have the right page or not.
Is that where the recommendations are?
23
Q.
(Indicating).
24
A.
I've got you.
25
Q.
And, behind that on the page that says
Thank you.
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"Information Memorandum," if you read the description
there, is that applying to --
MR. BLACK:
Your Honor, I would just object at
this point if we're going to offer this exhibit and rule
on whether it should be admitted or not.
testify and start reading from it.
though, I don't think it's appropriate for him to be
reading from a document and just reading from it.
JUDGE WELSCH:
Then, he can
Other than that,
Let me see the exhibit you have.
10
Ms. Gunnin, I think Mr. Black's objection goes to the
11
authenticity.
12
MR. BLACK:
13
JUDGE WELSCH:
14
15
Foundation.
So, do you want to lay a
foundation?
MS. GUNNIN:
I think he previously testified
16
that he was aware of a Cal-OSHA inspection and that he
17
had seen the citations issued in the case and he has now
18
reviewed the document and said this is the citation that
19
he had seen.
20
JUDGE WELSCH:
As part of the corporate
21
structure, would you in your normal course of business
22
have been furnished the citations issued by OSHA?
23
THE WITNESS:
I would be aware of them, yes.
24
JUDGE WELSCH:
This is in 2007.
25
If I understood
your position, you were not the curator until you said
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two years ago or something.
THE WITNESS:
Correct, and as the VP of animal
training, if they were making recommendations to our Sea
World of California park about our animals, I would be
involved in that process too.
6
7
JUDGE WELSCH:
That's VP of animal training at
Sea World of Orlando?
THE WITNESS:
Yes.
JUDGE WELSCH:
Not Sea World of California, San
10
Diego?
11
THE WITNESS:
No.
12
JUDGE WELSCH:
Mr. Black, what is your
13
objection?
14
not the OSHA citations issued by Cal-OSHA?
15
Do you have any reason to believe this is
MS. GUNNIN:
And, Judge, I can represent this is
16
actually part of OSHA's file.
17
from.
18
provided by the Secretary, and they provided the
19
citations to me in discovery.
20
This is where this is
If you look at their Bates numbers that were
MR. BLACK:
I don't challenge that those pages
21
are real.
22
object to her starting to use it.
23
It's just that I didn't get any chance to
So, if it's being offered now, I object on
24
relevance grounds.
I don't know what the relevance of
25
what Cal-OSHA issuing a citation or not without --
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1
2
MS. GUNNIN:
Judge, we can object to relevance
of all the California parks.
JUDGE WELSCH:
can overrule it.
MR. BLACK:
Let him finish the objection so I
The objection is that it has no
relevance to anything; but if it does, the relevance
would perhaps -- I'm struggling to find what the
relevance would be.
the issuance of a citation is not evidence that allows
10
an employer
11
As Your Honor knows, the lack of
--
JUDGE WELSCH:
I understand.
I'm going to admit
12
R-3.
If it's as simple as you say in terms of it lacks
13
relevance, then, you can easily deal with it in your
14
brief.
15
MR. BLACK:
16
JUDGE WELSCH:
17
18
Very good, thank you.

But R-3 is admitted into
evidence.
MR. BLACK:
Judge, this is not an objection,
19
it's just an administrative -- you combined what you had
20
marked as Tab --
21
22
JUDGE WELSCH:
Mr. Black, if you want to look at
R-3 and make sure it's what you have.
23
MR. BLACK:
24
BY MS. GUNNIN:
25
Q.
If I could.
Okay, Mr. Tompkins, if you would turn to the
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second page of the information memorandum.
A.
JUDGE WELSCH:
MS. GUNNIN:
BY MS. GUNNIN:
Q.
Yes, ma'am.
Are you still on R-3?
Yes, Your Honor.
There are eight recommendations that were
made to the San Diego park.
Have you reviewed these?
A.
Yes, ma'am, I have.
Q.
And you were at Sea World of Florida at the
10
time, correct?
11
A.
Yes, ma'am.
12
Q.
And, at Sea World of Florida, were you aware
13
of the recommendations?
14
A.
Yes, I was.
15
JUDGE WELSCH:
Let me make sure I'm on the same
16
page.
I'm sorry, what you're calling the
17
recommendations are at Page 2201?
18
THE WITNESS:
Yes, sir.
19
JUDGE WELSCH:
That's what you're calling the
20
recommendations?
21
MS. GUNNIN:
22
JUDGE WELSCH:
Yes, Your Honor.

I see it's kind of labeled as
23
following suggestions.
24
MS. GUNNIN:
Yes, suggestions.
25
JUDGE WELSCH:
You were actually saying
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recommendations.
MS. GUNNIN:
BY MS. GUNNIN:
Q.
Yes, Your Honor.
So, these suggestions, to use the correct
verbiage, were made by Cal-OSHA, and looking at these,
did Sea World of Florida implement any of these
suggestions?
A.
Yes, we did and then some.
Q.
And, could you describe of these which ones
10
11
12
did Sea World of Florida implement?

A.
Number 1, improve the control of behavior by
reducing environmental stressors.
13
What it's saying is to also give an inclusive
14
answer to each of our parks were involved in taking a
15
look at these recommendations and collectively -- this
16
wasn't just Sea World of Florida doing these things, we
17
did it as a collective group of parks.
18
So, whatever change I'm going to talk about
19
we did at each of our Sea World Parks, and I can speak
20
to that because we had many calls in making sure that we
21
did that.
22
We talked about the balance of what these
23
animals do in activities, and we made sure that we
24
evaluated and moved forth in making sure that we had
25
built in more relationship time with our animals.
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Number 2, we didn't.
The presence of Number 3 --
Q.
Are you on number --
A.
Let me go to the ones -- I'm trying to go to
the ones that I knew we implemented.
Q.
So, Number 1, you did?
A.
Number 1, we did.
Number 5, and I could
spend a little bit more time talking about not only that
equipment but other equipment as well.
Number 6.
10
11
12
JUDGE WELSCH:
We looked at
When you say you looked at, is
that the same as implement?

THE WITNESS:
We did not implement but we did
13
exhaustive research on portable breathing.
14
worked with a company to develop portable breathing, but
15
it wasn't feasible at the time.
16
BY MS. GUNNIN:
17
Q.
We actually
Before we go into all of these that you
18
didn't do and the reasons why you couldn't, if you
19
could, were there any others that you also implemented?
20
21
22
A.
Number 7, improving the communication methods
in the stadium.
Q.
So, Number 2 was a recommendation that having
23
more Orcas within the population to choose from or
24
various interactions would reduce the stress and keep
25
trainers from having to rely on one or two animals for
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the majority of their performance tasks.
why was that not implemented?
A.
killer whales.
park.
6
7
8
9
Q.
At Florida,
We felt we had a proper balance in number of

We didn't think that was an issue in our
When you say you didn't think that was an
issue, what would have been the issue?

A.
Well, this is their interpretation of our
environment.
We obviously --
10
Q.
When you say "their" interpretation?
11
A.
OSHA's interpretation.
It's really not how
12
many killer whales you have, but the balance of the
13
social structure.
14
female, are there more males than you need.
15
things were considerations.
16
You know, if you have a dominant

All those
Sea World always evaluates our population
17
mix, and we feel like we have the proper mix at Sea
18
World of Florida.
19
Q.
What is the importance of a population mix?
20
A.
Well, it's not only for the training of the
21
animals and the social structure, but it's the genetic
22
diversity to make sure you have viable females and the
23
proper type of viable males and, of course, with that,
24
you're going to have young animals.
25
Whenever you have a social pod of killer
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whales, when you have a large group of killer whales, we
like having the variability of ages and sexes because it
creates a balance within that social group, and we felt
like after that evaluation, we had that in all of our
parks, including Sea World of Florida.
Q.
The next suggestion was the presence of
calves within the population could be a stressor both to
the mother and to the other whales in the population.
Did you look at that suggestion?
10
A.
To both?
We did and I don't know if I would totally
11
agree with that statement that the calves are a
12
stressor.
13
of work for the trainer, obviously, when you have any
14
type of baby animal around, there's a lot more care and
15
handling that's required.
16
It is a lot of work for the mom, it's a lot
We couldn't have a non-group of non-training
17
animals set aside.
18
be appropriate because we feel that performing animals
19
or actually taken better care of than animals that are
20
non-performing animals.
21
We didn't feel like, one, that would
We're not an exhibit, we're a performance
22
area along with educational area.
23
and keeping them involved in variable environments
24
between the show environment and learning environment,
25
we felt was a much viable way of taking care of our
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So, training animals
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animals.
Q.
3
4
And, there was one about Number 4, animals
not -MR. BLACK:
Just for the record, all of this
discussion of what was done in the Cal-OSHA inspection,
as Your Honor will recall, we have had conference calls
and discussions about this prior to trial about the
relevance of what was found or not found by another
agency previously.
10
11
12
So, I just want to have a standing
objection to the relevance of any of this.

JUDGE WELSCH:
So noted for the record.
Go
ahead.
13
BY MS. GUNNIN:
14
Q.
Mr. Tompkins, Number 4 directed that animals
15
not used for reproduction may benefit from surgical or
16
chemical sterilization.
17
looked at?
18
19
20
A.
Was that something that you
Our vets did, and we do not have the current
technology to be able to do that.

Q.
And, there was another recommendation Number
21
6 or a suggestion that employer should continue to
22
investigate portable breathing devices such as but not
23
limited to spare air that could be worn by any trainer.
24
25
And, I believe you were beginning to tell the

Judge about the efforts at spare air if you could
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describe what is meant by that?
A.
We knew that we need -- we wanted to wear
air, and it had to be portable, it had to be small
enough to be worn either inside of their wet suit
outside with low profile.
At the time, there was no off-the-shelf to do
that.
Most small breathing tanks are still very big.
So, we worked with a company, and they went through a
lot of design and engineering and we actually spent
10
quite a bit of money designing a small breathing
11
aluminum tank that had a regulator built into it.
12
of course, that's all new technology as well.
13
had a hose that came off and you could breath off it.
14
And,
And, it
The challenge that we had and without getting
15
complicated about breathing there's a first stage and
16
second stage.
17
and puts it down to about 140 psi.
18
with scuba tanks, you have a second stage.
19
stage takes 140 psi, and it's called a demand regulator
20
which means I don't always, when I take a breath, take
21
145 psi or I would inflate like a balloon.
22
in enough air that I'm required to need, so the deeper I
23
would go, the more air it gives you.
24
25
The first stage basically takes 3,000 psi

If you are familiar
That second
I only take
Unfortunately, this device, we only had a

first stage which meant when you breath that, you
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received 145 psi and you had to learn how to take in a
limited amount of air.
When we tested the equipment, it was
inconsistent, it leaked, and then when we were training
the trainers on it, we recognized the difficulty of
trying to train trainers to breath on this device.
with those challenges, we decided this was not a
feasible piece of equipment at that particular time.
Q.
And,
And, Number 8 was the suggestion that the
10
employer should consider that lethal force against a
11
killer whale may be used to save the life of the
12
trainer.
13
A.
Did you look at that suggestion?

We did.
Our vets were the ones that looked
14
at that and they felt like with current technology and
15
the types of chemicals that you have available the size
16
and application of this device would be awkward at best
17
and probably hazardous to the people that were around
18
you as well.
19
Q.
Now, in these suggestions from Cal-OSHA, was
20
there any suggestion to no longer swim with the killer
21
whales?
22
A.
No, ma'am.
23
Q.
Was there any suggestion by Cal-OSHA that you
24
25
shouldn't do a performance with the killer whales?

A.
No, ma'am.
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Q.
Turning to a different topic, Tilikum.
Housed at Sea World of Florida since you've been at Sea
World of Florida, correct?
A.
Yes, ma'am.
Q.
Were you there when Tilikum was brought to
Sea World of Florida?
A.
Yes, ma'am, I was.
Q.
Did you participate in the transport of
9
10
Tilikum to Sea World of Florida?

A.
I did not go to the facility and bring him,
11
but when he was there in the facility in the transport
12
box, I helped from that point on.
13
JUDGE WELSCH:
What year was that?
14
THE WITNESS:
1992.
15
BY MS. GUNNIN:
16
Q.
When Tilikum arrived, was there ever a plan
17
that he was going to become one of your water work
18
killer whales?
19
A.
Absolutely not.
20
Q.
And, what kind of protections were taken when
21
Tilikum arrived with regard to how trainers were going
22
to work around him?
23
A.
We, of course, went immediately to only
24
senior staff members working with him, and at the time
25
it was only management people actually him.
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We obviously knew his history coming from Sea
Land Park, and we recognized that potential.
we made the decision not to get into the water with him,
and that's why we made sure that only experienced people
worked with him.
That's why
We were very careful not to do water work in
the pool next to him.
Any time he was in the pool we
had a gate latch system where basically you could not
move him without someone going forward to make sure the
10
pool was empty.
11
make sure our safety was taken into consideration
12
working as well because we didn't know him at the time.
13
Q.
14
Tilikum?
15
A.
So, we had a huge amount of protocol to
And, why is there a specific protocol for
Where he come from in Sea Life Park prior to
16
coming to Sea World, he was involved in the drowning of
17
one of the trainers who had slipped in and fallen in
18
with him and two other killer whales.
19
20
21
Q.
And, the protocols that were set up to work
him, what did the protocols require?

A.
The protocols required -- well, the most
22
important thing is we had absolutely our most senior
23
people working around him.
24
25
Where we worked him, the spotter system that

we had, the type of people we had around us.
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597
whenever making decisions by ourselves, we have spotters
and we have experienced people around us, so when we're
working an animal, if I'm missing something, somebody
else could be there to help me see those things around
me, the distance by which we worked them.
them dry, we were careful about where we were in
relationship to the depth, the type of footwear that we
wore, making sure that the decks were all slip
resistant, our footwear was slip resistant.
10
We worked
It was pretty extensive and much different
11
than what we did with our water work animals because
12
with our water work animals, they were used to having
13
people around the pool.
14
them and all those things.
15
You could jump in and play with
And, obviously, we had to really change the
16
mind set of the trainers who had been playing in the
17
water with their whales and working the whales.
Now, we
18
had a whale where we had to really concentrate.
So, we
19
really focused on making sure the trainers knew that
20
these are water work animals and this is Tilikum.
21
Completely different.
22
you step up into his environment, the protocols change,
23
your thinking changes, your safety parameters change.
24
25
Q.
You need to rethink.
The minute
During the years that Tilikum has been at the
park, have you had close contact with Tilikum?
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A.
Yes, we have.
Q.
And, what kind of close contact have you had?
A.
We've done all the same sort of interaction
drive that we have with our water work animals.
would rub him down, we would scratch his back, we would
rub his head, we would do husbandry behaviors where we
were working around his head.
everything you would do on dry land with him as we would
one of our water work animals.
10
Q.
We
We did just about
In all of those close contact situations, are
11
you aware of any incident where Tilikum attempted to
12
grab a trainer prior to February 24th?
13
A.
No, none.
14
Q.
And, at times with the husbandry procedures
15
that were done with Tilikum, what kind of husbandry
16
procedures were performed?
17
A.
We did fluke butts where he would put his
18
tail fluke in our laps, we do gastrointestinal tube
19
where we actually put a tube down his throat so you can
20
put fluids in his stomach, you would actually put your
21
hand in his mouth.
22
bad tooth, we could flush his teeth.
23
on a lift scale, and he would allow us to touch and
24
interact with any part of his body.
25
We worked on his teeth.
If he had a
We could put him
Tilikum was a really good animal, males
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especially his size, he was just exceptionally good.
was very calm, very gentle, he responded very well to
all of our interactions, he did all his husbandry
behaviors very willfully, never showing any problems or
reluctance to do those behaviors.
on-track positive animal all the times he interacted
with the trainers prior to the incident with Dawn.
8
9
10
Q.
He
He was a really
Were you aware of any water de-sense with
Tillikum that was going on?

A.
There was, and to make sure we're clear on
11
that, water de-sense can be tickling your feet in the
12
water in front of a whale to being in the water actually
13
riding a whale, it's from A to Z.
14
We had no plans on getting in and doing full
15
water work with Tilikum but our thought was that if we
16
could put him in the med pool where we had a lift
17
station available and we could lift him up where we
18
could have him more in the water and provide trainers
19
around him, then through the process of training and
20
de-sensing him, he could get used to having trainers
21
close to him in deeper water.
22
Q.
And, how would you do that?
23
A.
Well, I think based on the fact that we knew
24
his history coming from Sea Land Park, we really
25
speculated what might happen when somebody got in the
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water, and with that speculation, we wanted to provide
more predictability of what might happen if somebody was
to get in the water, so this de-sense training was our
initial basic step to try to get to that point where we
could get him used to people being in deeper and deeper
water within a lift floor situation.
7
8
Q.
And, did you observe those water de-sense
sessions?
A.
I did.
10
Q.
And, did Tilikum ever show any aggression or
11
an attempt to grab or lunge at the trainer that was
12
working in those sessions with him?
13
A.
None at all.
14
Q.
Was the trainer in the back pool with
15
Tilikum?
16
A.
Yes, it was only done on a lift floor, yes.
17
Q.
And, they were in the water with Tilikum?
18
A.
They were in water about thigh high.
Now,
19
realize he stands eight feet tall, and when you're
20
talking about two feet of water, he's still
21
substantially out of the water and he does not have
22
accessibility like you would think with our smaller
23
whales.
24
25
JUDGE WELSCH:
Let me just ask a question.
incident that happened in February of last year --
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The
601
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
-- with Ms. Brancheau, I'm
assuming -- and you have seen the video, I'm sure, of
the incident -- nothing she did was contrary to
instructions by the company?
THE WITNESS:
No, sir.
JUDGE WELSCH:
Everything she did she was doing
in accordance with what the procedures were or practices
were?
10
THE WITNESS:
Yes, sir.
11
JUDGE WELSCH:
When you're talking about
12
de-sensing, what I saw in the video, the one that was
13
shown yesterday, you know, you talked about water work
14
versus dry work, and the distinction being that the dry
15
work was anything below the knee; water work above the
16
knee.
17
THE WITNESS:
Yes, sir.
18
JUDGE WELSCH:
But, in the video I saw Ms.
19
Brancheau pretty much lay down on the platform and the
20
water being around her neck; something to that effect.
21
THE WITNESS:
Yes, sir.
22
JUDGE WELSCH:
Would you be saying at that point
23
she was doing this de-sensing?
24
What was that behavior that she was trying, or do you
25
have any idea what the behavior was?
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THE WITNESS:
It wasn't a behavior she was
performing more than she was in a depth that was about
that big (indicating).
4
5
JUDGE WELSCH:
"about that big," what does that mean?
6
7
For the record when you say
THE WITNESS:
That deep.
The water was about
that deep.
JUDGE WELSCH:
How deep is that?
THE WITNESS:
I'm sorry, six to eight inches,
10
and you need to remember that Dawn weighs 99 pounds wet,
11
and a very small girl so her laying in that depth of
12
water gave the perception that that was really, really
13
deep.
14
So from our standpoint, that was still dry work.
15
still supported by land.
16
In reality, it's only six to eight inches deep.

You're
So what she was doing and watching the video, she
17
was interacting with Tilikum and building a
18
relationship, not really expecting anything from him but
19
just eye contact and playing with him while she was
20
laying in this shallow depth.
21
JUDGE WELSCH:
The reason I ask, the part I saw
22
during the show, she wasn't doing anything like that.
23
She pretty much stood on the deck and gave the signals
24
and fed Tilikum.
25
ended and she went around to the back side that she
Only after the Dine With Shamu show
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actually got down.
was a different kind of behavior that she was trying to
deal with or a different kind of activity that she was
trying to elicit from Tilikum because what I was seeing
anyway was her head was very close to Tilikum's mouth.
Right.
It's not unusual for the
head to be close to his head.
To answer your question,
Your Honor, when she was doing the performance in that
back pool there was no shallow area for her to be able
10
11
THE WITNESS:
And, I was just wondering if that
to do that.
She had such a good session with Tilikum and he
12
looked and acted very favorably to everything she asked,
13
she wanted to reinforce him, she wanted to spend more
14
time with him.
15
took him around the pool where that shallow depth was
16
and that's when she went, "You know, I'm going to take
17
my time here, and I'm going to reinforce this whale
18
through my interactions with him because of everything
19
he did."
20
She was asking a lot of behavior, she
It wasn't like she was executing a behavior with
21
him more than she went, "You know what, I'm going to
22
relax now with my whale and I'm going to have this
23
social moment and relate with him and build my
24
relationship."
25
JUDGE WELSCH:
Thank you, sir.
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BY MS. GUNNIN:
Q.
Just to follow up on the Judge's question,
would that have been any kind of unusual occurrence with
Tilikum for her to have engaged in that kind of session?
A.
No, it's not.
MS. GUNNIN:
Judge, I have more questioning,
but we've been going for awhile and I thought we could
have a break.
9
10
JUDGE WELSCH:
Let's be back at ten after 3:00.
We're adjourned.
11
(Whereupon, short recess
12
Was held off the record)
13
JUDGE WELSCH:
14
15
oath.
16
17
MS. GUNNIN:
18
BY MS. GUNNIN:
19
Q.
Yes, Your Honor.
Thank you.
Mr. Tompkins, I think when we left off, you
20
were talking about the contact with Tilikum that
21
trainers were having at the Florida park, and I wanted
22
to ask you one question.
23
If you had had a trainer come to the park
24
from Texas or California, are they allowed to work your
25
killer whales when they come to Sea World?
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A.
Absolutely not.
Q.
Why is that?
A.
Well, we have strict protocol to who gets to
work with a killer whale and when.
if you're the most experienced trainer who comes from
another park, you're not familiar with that whale, you
don't have a relationship with that whale.
unfair to put you in front of that whale without you
having all that history and expertise and skill with
10
And, obviously, even
It would be
that particular whale.
11
That's why when we move people into the Shamu
12
Stadium, we really don't care what level of experience
13
you are, you still have to go through all the
14
fundamentals of learning who the whales are, what they
15
are and building your relationship slowly and
16
cautiously.
17
Now, that doesn't mean experienced trainers
18
can't move through there quicker, but they still have to
19
go through the process of learning everything that a new
20
trainer would learn.
21
Q.
How about if the trainer had been in the
22
Shamu Stadium at San Diego park?
23
come to the Orlando park and start working your killer
24
whales?
25
A.
Would they be able to
No, absolutely not.
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1
2
3
Q.
Is that because they don't have a
relationship established with the whale?

A.
It doesn't matter where you come from, if
you're not familiar with that whale, whether you come
from Sea World Texas, Sea World of California, even from
another park, if you're there, you need to go through
all the processes and procedures as starting to know and
get to work with that animal with an experienced person.
And, depending on the person, it could be up
10
to year, year and half.
It just depends on the person,
11
their experience and what whale.
12
Q.
Do you work with killer whales daily?
13
A.
No, I don't.
14
Q.
How often do you work with killer whales?
15
A.
Now, I don't work directly with killer
16
whales, but I do the overseeing and the teaching of the
17
staff.
18
Q.
But, if you went to the Shamu Stadium at
19
Orlando, even with all your years of experience, would
20
you go in there and start working with killer whales?
21
22
23
24
25
A.
No, I wouldn't.
As much as I would want to,
I couldn't.
Q.
Is that due to the protocols that are in
place?
A.
Absolutely.
I'm no different than any new
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person.
a relationship with those whales.
familiar with each whale in each situation.
would have to go through the same type of training if I
wanted to get back into that.
6
7
8
9
Q.
None of those whales know me now.
I don't have
I'm not day-to-day

So, no.
And, you have known those killer whales in
the past, right?

A.
One of those killer whales I've known over
30 years, but I would have to go through all the same
10
retraining and reintroduction back to that whale as any
11
new person.
12
Q.
You were asked several times about humans
13
making mistakes in training with the killer whales.
14
What does Sea World do to account for the fact that
15
humans are going to make mistakes?
16
A.
That's a part of our training that we have
17
with not only people and animals, but I'll speak to
18
animals first.
19
We know that people are going to make
20
mistakes, and we know that animals are going to make
21
mistakes, but our training takes that into
22
consideration.
23
We talk about this water de-sense plan.
The
24
plan has one specific training that really takes into
25
consideration different things that can happen in the
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1
2
environment.
We recognize that unusual things can occur in
the environment that may be out of our control; a duck
flying in the water or a stranger come and jump in the
water, a plethora of things that can be a distraction to
the whale, and we know that could happen.
We train accordingly.
During our water
de-sense program, which this isn't just a program that
we train the killer whale on and go, "Good, you're done.
10
You're trained."
11
When they're a water work animal, it's the type of
12
training they will receive every day of their life.
13
It is a part of their entire life.
And, what that training entails is basically
14
we put into their environment all these obstacles, all
15
these changes, all these different stimuli that may not
16
be a part of their normal environment.
17
water, we drop things in the water, we swim behind them,
18
we make noises.
19
We fall in the
The nice thing about working at Sea World of
20
Florida, we have other natural distractions like fire
21
works and stuff like that, so we're able to train these
22
animals to know that there's a lot of things that can
23
happen around you, but you stay focused and you stay
24
with your trainer.
25
So, we take into consideration that mistakes
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can happen.
an emergency medical plan or ERP where basically we have
all the protocols on how to rescue a person.
equipment, we have processes, we have all those tools
and devices and SOP's to make sure that we know how to
react if we need to go rescue somebody.
We also -- the worst case scenario, we have
We have
So, we take into consideration even those
worst case scenarios.
We plan, we train for it.
Hopefully, we never see them, but we're ready for it.
10
So, our training is all inclusive.
11
The people go through the same training too.
12
obviously do a lot of training with our staff.
13
And that's whales.

We
What you don't see is all of the emergency
14
response training we give our trainers.
15
learns how to pull nets, they know how to use emergency
16
breathing devices, they know how to use emergency
17
equipment, tools, and all the lift floors, all the
18
gates, all the things that we use as the process to go
19
rescue somebody.
20
Everybody
Everybody is very proficient at those tools.
21
So, the training is not only animals but it's people
22
too, and it's very inclusive.
23
Q.
Let's talk a little bit about the video we
24
saw after lunch.
25
water.
It appears there was a net in the
What is the net?
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A.
The net is one of the tools that we can use
in the emergency rescue program.
net is a distraction.
water with our animals.
use all the time; it's very rare.
And, basically, the
We don't normally put nets in the

It's not a device or tool we
As a matter of fact, the only time we use
them is if there's a medical procedure, if the whale is
sick, and we need to support them and move them to a
pool, but in this particular situation, it's put in the
10
11
water as a distraction.
I know that video from a non-trainer's
12
perspective is probably hard to see.
13
at that, and you just go, "Wow, he got dunked under
14
water," and while I'm analyzing this video, I'm
15
realizing the severity of it, but I'm also watching all
16
the pieces of training that's occurring at that
17
particular time.
18
I think you look
I watched a very experienced trainer take a
19
situation and he calmed it down.
20
the water for an extended period of time, but he was
21
relaxed, he didn't panic.
22
Yes, he was dunked in
The people around him executed the emergency
23
response plan which was putting the net in the water.
24
That net worked.
25
water, the whale came to the surface and wanted to know
The minute the net was put in the
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why the net was in the water.
the trainer, how he started to relax the animal.
Then, we again watched
I didn't look at it as, "Wow, look at all the
things that went wrong," I mean, we all can see that.
looked at what went right, where did our training
actually help us.
thing, you will recognize that the training we gave that
individual paid off.
knew what to do, he didn't panic, he calmed that animal
10
And, when you evaluate that whole
He was calm, he was consistent, he
down.
11
The net we put in was a very effective tool.
12
She started to relax.
13
trainer started to relax even more with her, and then
14
when the appropriate time occurred, he sculled out of
15
the water, got out of the net, and safely got out of the
16
water.
17
When she started to relax, the
So, I look at that as that is well-trained
18
environment that could have gone wrong if we did not
19
have everything trained.
20
response team was trained, everything was executed
21
really, really well, even though that was a situation
22
where it could have gotten out of hand.
23
Q.
The trainer was trained, the
And, there's training that goes on for an
24
emergency response when there's an incident similar to
25
what Mr. Peters was experiencing, correct?
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A.
We practice it all the time.
Pulling that
net is -- although it's rare for an animal, it's very
frequent for a human being.
pools in all situations and we time ourselves.
course, that piece of equipment is only one of many
pieces of equipment that we have.
around there, we have hooks and ropes and other support
equipment that we have around that need to be brought to
the side of the tool.
10
We pull that net in all

And, of
We have scuba gear
So, we're very proficient in being able to
11
react to those environments and to be able to do
12
everything in a timely fashion and correctly.
13
14
Q.
Do you recall looking at the Orkid and Brian
Rokeach incident report?
15
A.
Yes, ma'am.
16
Q.
In that report there was reference to the
17
tone and the hand slap?
18
A.
Yes.
19
Q.
Did that work in that instance?
20
A.
Not immediately but it did, and that's the
21
22
23
24
25
important part of that.

Q.
When you say "not immediately," when you're
reading that report, how quickly would that have worked?

A.
Well, theoretically, I would have wanted that
animal to respond to the first slap or the first tone.
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By the way, the tone and the slap mean the same thing.
It means stop what you're doing and come back.
an underwater sound, and the slap is an above-water
sound.
One is
When we look at that, the animal didn't
respond to it the first three or four times, but I'm
looking at time frame of 10 to 20 seconds, and after 20
seconds, the whale responded to the slap.
So, again, it's one of those things we can
10
look at all the things that went wrong, but what I see
11
there is the fact that our training of that animal over
12
and over and over again responding to that hand slap,
13
that call back, it did work and in that elevated state
14
of emotion, if you can get a whale that's over-excited
15
or even aggressive, if you can get them to listen to
16
that hand slap, that's a phenomenal thing to do, and in
17
that situation, it did work.
18
19
20
Q.
She came over eventually.
You were asked, I believe it was actually
yesterday afternoon?
JUDGE WELSCH:
Excuse me a minute.
It seemed
21
like yesterday or I forgot what day of the week, but I
22
think it was when Ms. Clark testified because I think
23
there were some questions about hand slapping.
24
THE WITNESS:
Yes.
25
JUDGE WELSCH:
And tones.
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saying, in the Rokeach incident, he was grabbed by the
foot and pulled under similar to what we saw in the
video?
4
5
6
THE WITNESS:
Well, not to the degree -- he was
pulled two feet under water for about 15 to 20 seconds.

JUDGE WELSCH:
I'll read back in the transcript,
but from what I understood Ms. Clark to say is that
sometimes you want to use the hand slap or the tones,
but other times it's inappropriate, and I guess the
10
sense I had from her was -- and I know you didn't hear
11
her testimony -- but if the whale had ahold of the
12
person, by doing the hand slap, it might create more of
13
a problem.
14
15
16
Do you understand where I'm going?
THE WITNESS:
I know exactly what you're talking
about.
JUDGE WELSCH:
Whereas, when the whale doesn't
17
have ahold of the person, the hand slap is more
18
effective in working to bring the whale to them.
19
So, the sense I had from Ms. Clark's testimony, as
20
curator for the Orlando, was that you had to be very
21
careful when you do the hand slap in terms of either
22
reinforcing some behavior you don't want them to be
23
doing or to call them back.
She made a distinction.
24
THE WITNESS:
Right.
25
JUDGE WELSCH:
And, you don't seem to be making
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that same distinction.

THE WITNESS:
Well, we're talking about a
different conceptual situation, and let me try to put it
into terms.
environment, her emotional state and what she was doing,
the trainer felt like they could give the slap.
Although she didn't respond to the first three or four,
she eventually did.
9
10
In this particular situation with this
Let me try to put it in a context you understand.

Are you married?
11
JUDGE WELSCH:
Yes.
12
THE WITNESS:
When I'm having an argument, if
13
my wife is really, really mad and I'm trying to make my
14
point, I'm not going to try to make it right in the
15
middle of her anger.
16
somewhat done, she takes a deep breath, and then I know
17
I have an opportunity of objecting and probably
18
redirecting.
19
I'm going to wait until she's
The idea is picking the right time when we can get
20
them to start paying attention to you.
21
the trainer and experienced people there to pick the
22
right time when they know that that hand slapping and
23
call-back would be the most effective.
24
the elevated state of the emotion and what's happening
25
with the person and the animal.
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It depends on
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So, in that particular situation we're talking
about, the trainer looked at that and said, "I feel
comfortable that this hand slap is not going to
interfere with what's going on.
to redirect the animal to me.
come back the first three or four times, if you look at
the time frame of 10 to 20 seconds, that's not a long
period of time.
to that fifth call-back, and she came over and stayed
10
11
If anything, it's going
And, although it didn't
The important thing is she did respond
with the trainer, and the trainer got out of the water.
JUDGE WELSCH:
I think the situation that Ms.
12
Clark was talking about was the incident that happened
13
last year, February 2010, the hand slapping -- and I'm
14
going to have to go back through -- the hand slapping
15
didn't really work.
16
THE WITNESS:
Are you talking about Tilikum?
17
JUDGE WELSCH:
Yes, sir.
18
THE WITNESS:
No, it did not.
19
BY MS. GUNNIN:
20
Q.
It didn't work at all.
Yesterday, you were asked about this
21
exploratory action by a killer whale, and I wanted to
22
give you an opportunity to explain what you were talking
23
about when they were being exploratory with the
24
trainers, and if you could just tell the Judge what you
25
were talking about?
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A.
Well, when we were describing the incident,
there are certain behaviors that are a part of the
criteria that is in an incident.
And, when you use your mouth, we consider
that an incident.
around a body part, mouthing does not mean they grab
you, but they explore.
8
9
If you open your mouth and you put it
You'll notice on the incident report, there's

a lot of younger whales that have incidents called
10
mouthing, and it's not unusual with younger whales.
11
have to remember they don't have hands.
12
everything with their mouth.
13
You
They explore
The majority of those incidents when we have
14
mouthing, do not lead to aggression at all.
15
incident that we want to keep track of because we don't
16
want them constantly learning how to mouth us, but
17
they're younger whales when they're ages between one and
18
four, they do this behavior where they come over and
19
they go, "You know, I've never felt a wet suit before."
20
So, they put their mouth around your wet suit and they
21
feel the rubber or they put their mouth around your arm
22
and all we have to simply do is wait a few seconds, and
23
we tap over here and they redirect over here.
24
25
It's an
That's not aggression in any way, shape or

form.
It's exploratory behavior by young animals that
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are exploring their environment, and we know that.
you don't ignore it either.
document it to make sure that, "Joe-Blow whale right
here, if they mouth me, by the way, trainers that now
get in the water with him, be very aware that he may be
or she may be in an exploratory stage.
you watch carefully and if you see the mouth start to
open to explore, let's redirect."
But,
We make sure that we
Make sure that
And, because we have noticed that behavior
10
and know that potential, we have been able to train it
11
out of all of our killer whales that ever showed us.
12
We've never had mouthing go into an incident.
13
Q.
You spent a lot of time this morning talking
14
about Kayla and her animal profile and there not being
15
any incident report.
16
Would a trainer coming in to work with Kayla
17
just simply look at an animal profile or simply look at
18
incident reports?
19
A.
No, and after looking at those incidents,
20
they occurred at Sea World of Texas.
21
at Sea World of Florida.
22
Texas, but what I can tell you is that they have their
23
animal profiles and they have their incidents.
24
25
Of course, I was
I can't speak to Sea World of
So, whether he was in the incident reports or

not, the trainers that were working Kayla got access to
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both of those documents.
working that whale, everything that occurred with Kayla
during her life, including the ones that were written on
the profile sheets.
So, they knew when they were
So, although it might have been missed in the
incident log over here, they got to see it over here,
and more than likely, those experienced trainers were
able to walk him through that.
not an option to read these things, it's mandatory, and
Because, remember, it's
10
it's normally done with somebody senior to you that's
11
your coach that's walking you through these documents
12
and helping you read and assess and understand what is
13
in front of you.
14
15
We just don't want you to read the document

and go, "Well, that's interesting."
16
We go, "What did you get out of that
17
document?
What did you learn from that document?
I can
18
tell you from the incident here's what happened, here's
19
what we think, and this is what we need for you
20
understand to know before you go work with Kayla here's
21
what we know about this animal, her total history."
22
it's walked through in depth with every trainer that
23
works Kayla.
24
Q.
When did Kayla move from Texas to Orlando?
25
A.
I think it was 2006.
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1
2
3
Q.
And, the animal profile would have come with
her to Orlando?
A.
Yes, it would have been packed up with her
animal records and brought with her to Sea World of
Florida.
Q.
And, there's more than just the animal
profile and incident reports that would be in her
records, correct?
A.
Yes, these are daily animal records that we
10
have, and I spoke to them before, that we do have
11
electronic recordkeeping.
12
that we put our recordkeeping in.
13
the record for that day there, but all the recordkeeping
14
is done with computers and have been for the past five
15
years.
16
17
18
Q.
We have a computer system

We do have a copy of
And, what is the purpose of this daily animal
record?
A.
It not only records the behavior of the
19
animal, but it's a food base that if the vets have
20
prescribed any medication on there, it's an animal
21
record, the behavior rating on there.
22
There is a lot of information that we feel
23
like is very important.
We write down what we work the
24
animal on, how much food they got in that session, what
25
was the response of the animal, who worked that animal.
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All of those data points are collected on there, and as
a trainer, if I was to come in from my day off or even
if I came in the next day and I wanted to work an
animal, I don't just grab a bucket and go, "I'm going to
work with Katine."
Because your job in the morning is go look at
the records.
It's your living bible, it's what you read
every single day, it's what you use as a way of
generating what you need to go out and do because before
10
I go work that animal, I want to know who worked her
11
before, what was her session like, and more than likely,
12
I've got the entire record of the entire week.
13
going to be able to see the trend.
14
going on with those animal records.
15
I'm
So, there's a lot
And, realize the animals have their lives
16
too.
17
small part of their day.
18
different sessions.
19
They're HELPERS, their husbandry, learning sessions and
20
play sessions, and all those types of sessions, and we
21
want to know how many of those are occurring because if
22
I'm only doing shows one week, I've overloaded an animal
23
on nothing but shows.
24
25
They just don't do shows.
The shows are a very
They work on a lot of
Mr. Black even brought them up.
Well, the animal records will show us that,

gee, I've not done any learning sessions with Katina or
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I haven't done any husbandry sessions or you know what,
I haven't really played with this animal for a long,
long time.
So, it gives the animal training staff the
ability of being able to balance an animal's life which
we know is very important in creating a healthy life for
an animal.
8
9
Q.
The animal record is a daily record of the
interactions, correct?
10
A.
Yes, ma'am.
11
Q.
And, on that is noting all the trainers who
12
worked that animal for the full day?
13
A.
Yes.
14
Q.
And, it's noting feeding?
15
MR. BLACK:
Your Honor, I understand you said
16
this is Cross, but this is the head fellow with the
17
corporation.
18
has called this witness that she gets to lead this
19
witness, so we would ask that she not ask the leading
20
questions.
I don't think that just because Ms. Gunnin
21
JUDGE WELSCH:
22
BY MS. GUNNIN:
23
Q.
Overruled.
Go ahead.
On the animal record, we covered who has
24
worked the animal, the feeding schedule.
25
items are on there; can you recall?
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What other
623
A.
We'll put down any types of incidents that we
have, so it's not only the behavioral record of what
they have done right.
on that form too.
If they do have an incident, it's
So, when you really look at the
documentation, there are multiple places that we put
what the animals do, and if the trainers have access to
looking and reading and being able to reference.
9
10
11
Q.
And, do you do any kind of monthly records of
the animals?
A.
Within the weekly records, we have a pie
12
graph and it summarizes the week.
Now, you can go back
13
to other weeks, and that's what most trainers do and
14
they could pull up the collective month of records, but
15
within your one record, it shows all seven days with a
16
pie graph that you can pull up at any time with your
17
records, and it shows you the balance of interactions
18
that you're doing.
19
Q.
And, how about the monthly records?
20
A.
Well, there's not monthly records, per se.
21
It's you being able to go back and access a weekly
22
record, week by week.
23
Q.
You haven't seen the monthly recap?
24
A.
They're done on a monthly basis and they're
25
done on a six-month basis, and they're done on a yearly
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basis.
Q.
And that would be for each animal?
A.
Absolutely.
Q.
So, there's a lot of redundancies of
information that you're collecting on an animal?
A.
Yes, ma'am.
Q.
When you have mentioned the number 1.6
million interactions, how are you estimating that
number?
10
MR. BLACK:
Your Honor, we object to any
11
estimates of the number of interactions.
12
because under the Federal Rule of Evidence 1006, we
13
haven't been provided any of the underlying documents on
14
which this estimate is based.
15
The rule clearly requires that.
16
I can go on.
We object
That has to be provided.
I have several other grounds on
17
which we object to this estimate by a nonexpert based on
18
reviewing some records that haven't been made available.
19
JUDGE WELSCH:
Mr. Black, I wrote it down.
It
20
was in response to one of your questions -- I don't
21
remember the context -- is where he first talked about
22
that.
23
interactions.
24
25
In response to your question, he used 1.6 million

I wrote it specifically down.
I think Ms. Gunnin was just following up on the

question that you asked or at least the response that he
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1
2
gave.
Right at the very beginning when you started your
examination about the percent probability, he started
talking about 1.6 million interactions.
what the rule is, and I'm going to treat it as an
estimate.
going to give it much weight but just as something he
considered.
9
10
11
If you don't lay a better foundation, I'm not
MS. GUNNIN:
Yes, right.
JUDGE WELSCH:
So, the objection is overruled
for right now.
Go ahead.
12
BY MS. GUNNIN:
13
Q.
14
15
I understand
Mr. Tompkins, where did you get the number
1.6 million interactions from?

A.
What we did is from 1988 to 2009, which is
16
22 years, we took -- we literally counted each whale in
17
each park for each of those years.
18
many whales did we have in our collection each one of
19
those years.
20
whales per year.
21
In other words, how
And, we averaged it out.
It came to 20
We took 20 whales and we multiplied it times
22
ten sessions a day, and that is a very conservative
23
number.
24
25
Q.
Before you go on, how did you come up with
the number ten sessions, and what do you mean by a
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session?
A.
Ten sessions -- any time we step up and
interact with a whale, that's considered a session.
you step up and separate an animal to the back pool,
that could be a session.
20-minute show with an animal, that's a session.
do one of the learning sessions or husbandry sessions or
exercise sessions or play sessions, all of those are
considered separate sessions.
10
If
If you step up and do a
So, we count those individually.
If you
When we
11
step up and when we step away, that's one session.
12
is not unusual to have many more than ten sessions a
13
day, but we wanted to be conservative with our number.
14
So, we took these 20 whales, we multiplied them by ten
15
sessions a day by 365 days by 22 years, and if you do
16
the math, it's 1.6 -- actually, it's 1,606,000 if you
17
really wanted to get exact.
18
off and say 1.6 million.
19
conservative number.
20
Q.
It
But, I'm going to round it
And I think that's a very
And, you're basing that on your experience of
21
interacting with the killer whales and your experience
22
knowing the number of times that you would interact with
23
a killer whale during the day?
24
A.
Yes, ma'am.
25
Q.
Are there ever days when a killer whale is
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1
2
not interacted with at all?

A.
They average ten.
Absolutely, and we do that
on purpose.
days they have 20.
and I want to say again, though, it's a very
conservative number because I would imagine the number
is higher, but for the benefit of being conservative and
not being accused of being overstating, we kept it
reasonable.
10
11
Q.
Some days they only have four or five, some

So, when I say ten, it's an average,
I think I asked you that.
Are there ever
days when you don't interact at all with a killer whale?
12
A.
No.
13
Q.
Feeding, would that be an interaction?
14
A.
Absolutely, absolutely.
15
JUDGE WELSCH:
16
17
18
19
Have these daily records been
provided to the Secretary?

MS. GUNNIN:
The daily activity records.
They do have representative
records for Tilikum.

MR. BLACK:
We would not agree, as you might
20
imagine, with that characterization.
21
records for one of the whales for a short period of
22
time; the whale Tilikum.
23
24
25
MS. GUNNIN:
inspection.
We have a few
They were reviewed during the
We're going argue that later, Your Honor.
JUDGE WELSCH:
Go on, Ms. Gunnin.
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BY MS. GUNNIN:
Q.
3
4
5
So, you're estimating that 1.6 million
interactions and you've got how many incidents?

A.
If you add up all the ones that are at Sea
World Parks, it's 98.
Q.
a percentage?
A.
something.
And, roughly, how does that calculate out as
I think there's a lot zeros there.
0009-
Without having my notes, I couldn't give you
10
the exact number, but what I know, based on those
11
numbers, it's statistically very, very small.
12
13
14
15
MR. BLACK:
qualified as a statistician.
JUDGE WELSCH:
characterizations.
I'm not accepting his

I'm just listening to his numbers.
16
Go ahead.
17
BY MS. GUNNIN:
18
Q.
19
He's not
And, out of the 98 incidents, how many
resulted in injuries that you're aware of?
20
A.
Twelve of them.
21
Q.
And, when you look at Sea World of Florida
22
independently, after the Kasatka and Ken Peters
23
incident, were there any incidents prior to Ms.
24
Brancheau's incident?
25
A.
No, none.
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JUDGE WELSCH:
The calculations that you've done
there, do they involve the three parks that you're
dealing with?
THE WITNESS:
Yes, sir, just the single parks.
JUDGE WELSCH:
And, your question was as to the
three parks?
two months before Ms. Brancheau?
8
9
10
11
Because I thought there was an incident
MS. GUNNIN:
That was in Loro Parque in the
Canary Islands.
JUDGE WELSCH:
parks.
So, that's not part of the three
That's --
12
THE WITNESS:
No, that's a separate entity.
13
JUDGE WELSCH:
Thank you.
14
BY MS. GUNNIN:
15
Q.
After Ms. Brancheau's incident, you were
16
questioned about there not being an incident report.
17
you have any doubt that the trainers at Shamu Stadium
18
are unaware of Ms. Brancheau's incident?
19
A.
Absolutely not.
Do
Every trainer is very
20
informed about all the specifics of that particular
21
incident.
22
in later, every one was sat down and given an in depth
23
detail about what happened.
24
25
Q.
Whether they were there or whether they came
In these incident reports, some of them are
fairly old incident reports.
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whales represented in the incident reports still be
alive today?
A.
No.
Q.
Are the killer whales unique?
A.
All of them are.
Q.
Describe why are they unique?
A.
It's a living organism.
What's unique?
They all may grow up
different -- just like human beings, we all may grow up
in the same family, but we have our own personality
10
traits and characteristics, physical traits, learning
11
capabilities.
12
animals just like people.
All those things can be different with
13
Q.
14
profile?
15
A.
Absolutely.
16
Q.
As well as the other animal records?
17
A.
Yes, ma'am.
18
Q.
You were asked about an incident involving
19
Is that the reason for having the animal
Kristin McMahon-Van Oss at Sea World of Ohio.
20
A.
Yes.
21
Q.
And it referenced a sweatshirt.
22
23
What was the
change made after that incident?

A.
We realized that wearing loose clothes was a
24
potential for a whale to grab, obviously, during a
25
session.
After that particular incident, nobody was
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allowed to wear loose dry clothes.
to wear wet suits from that point on.
3
4
Q.
And, after these incidents that were reported
in C-6, if a change could be made, was the change made?
5
6
They were required
MR. BLACK:
Objection, vague.
I don't have any
idea what that question is.
MS. GUNNIN:
If a change could be made --
JUDGE WELSCH:
You're talking about changes made
after November 2006?
10
MS. GUNNIN:
Yes, after the incident, but I
11
think the witness, if he understands the question, he's
12
the one to determine vagueness.
13
JUDGE WELSCH:
Overruled.
Go ahead.
14
THE WITNESS:
I understand the question.
And,
15
yes, if they thought there was a valid change necessary,
16
it was not only made in that park, but it was probably
17
made in the other parks as well unless it was specific
18
to that particular animal.
19
BY MS. GUNNIN:
20
Q.
21
And, what if there was no change necessarily?
Did you do any kind of retraining?
22
A.
It depended on the situation.
Every
23
situation, obviously, raised our eyebrow to make us take
24
a look at things.
25
like,
We never ignored or walked on and,
"Oh, well, that's just not the way we handle
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those incidents."
It always gave you a chance to evaluate our
training process, and that's what we did after single
incident.
it, but it was being evaluated at all parks.
learning could be shared not only from the park that was
doing it but the other parks as well.
8
9
10
Q.
Remember, it was not only the park evaluating

So, that
What was the point of having other parks
comment on a report?
A.
A different perspective, making sure that we
11
didn't miss something.
12
to something, you could possibly miss it, but by having
13
all the expertise in the entire company evaluating it,
14
we very rarely, if anything, missed the opportunity to
15
evaluate and come up with different perspectives in what
16
we could do.
17
18
MS. GUNNIN:
Sometimes when you're so close
If you could just give me a
moment.
19
BY MS. GUNNIN:
20
Q.
On the video that we saw this afternoon with
21
Mr. Peters, as you were watching that, if you could
22
explain what was he trying to do with Kasatka?
23
JUDGE WELSCH:
24
MS. GUNNIN:
25
At what point in time?

As he was at the surface rubbing
the whale.
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JUDGE WELSCH:
I'm just saying at the point in
time when the whale had him by the foot, or are you
talking about during the show?
4
5
MS. GUNNIN:
grabbed him by the foot, yes.
6
7
JUDGE WELSCH:
I just want to make sure it's
clear.
8
9
When we saw that incident when she
THE WITNESS:
I've watched that videotape many,
many times and talked with Ken Peters himself.
10
When she started to reach for his foot, you notice
11
that he was at the surface, and he was not panicking but
12
sculling and making sure that he was not providing his
13
foot as an easy grab.
14
things he was doing was trying not to provide a
15
grabbable piece of his body for the whale.
So, that was one of the first
16
JUDGE WELSCH:
Sculling?
17
THE WITNESS:
Sculling means he's at the
18
surface.
Sculling is a term in swimming as staying at
19
the surface.
20
And, when he realized her fascination and her need
21
to grab his foot was there, he actually relaxed and gave
22
the foot.
23
want to, but it was very obvious what she was trying to
24
do.
25
It was one of those things where he didn't
Once she grabbed the foot, I think he has -- and
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what he's told me and what I've watched is you can tell
that's he's very relaxed.
MR. BLACK:
JUDGE WELSCH:
Objection.
Hearsay, Your Honor.
Try to limit your answers to only
what you observed in the video, not what Mr. Peters may
or may not have said to you.
THE WITNESS:
What I watched is a trainer
relaxed.
his body, he wasn't flailing, he wasn't trying to
10
escape.
When he was pulled into the water, watching
He simply relaxed and went for the ride.
11
The net was pulled in the water and he came to the
12
surface, that's when you first saw his bald head next to
13
the whale.
14
He was relaxing himself and, more importantly, he was
15
relaxing the whale he was with.
16
You could tell that he was trying to relax.
The one great tool -- and I think I explained that
17
earlier -- is that we train our trainers for these
18
environments, and this is one of those times where I've
19
watched a trainer execute relaxing and not getting over
20
excited and possibly making the situation worse.
21
The way he handled it relaxed that whale.
Even
22
though the whale took him down again, he was still very
23
relaxed, he waited, he came to the surface and that's
24
when he was very calm.
25
I was very impressed with the fact that he never
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panicked, he never tried to escape or do the wrong
thing.
time and the one time he exited the water is when he
knew he had the appropriate time, space and the whale
was facing the other way.
He stayed, he relaxed the whale, and the only
So, he executed his escape plan that he needed to
do with that particular animal in a high level emotional
state.
escalation of that situation, and eventually get himself
10
He helped calm that whale down, bring down the
out the water.
11
BY MS. GUNNIN:
12
Q.
13
14
And, at the point in time when he was doing
that, what would the spotters have been doing?

A.
People were assessing whether they were --
15
obviously, people were slapping and using the call back,
16
but she didn't respond to that.
17
MR. BLACK:
18
foundation here?
19
the video.
20
21
Objection.
Can we have some
I'm not sure that I -- I didn't see on
JUDGE WELSCH:
Did you see spotters on the
video?
22
THE WITNESS:
Yes, I did.
23
JUDGE WELSCH:
Did you see slapping on the
24
25
video?
THE WITNESS:
Yes, I did.
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the side of the pool.
too.
I saw the net getting pulled in
MR. BLACK:
We withdraw our objection.
JUDGE WELSCH:
BY MS. GUNNIN:
Q.
Go ahead, you can answer.
A.
There was support staff around.
Okay.
Although we
saw a head go by and a net flash by, and trainers on
stage, all things that, no offense, you would probably
10
miss.
11
From somebody with my perspective and
12
experience, I'm not only watching the environment, I'm
13
looking at what these other people are doing and I'm
14
recognizing they are executing an emergency response
15
plan.
16
and when to call back, the net is being executed, all
17
those things are being done.
They are on stage making the appropriate calls
18
MS. GUNNIN:
Thank you, Mr. Tompkins.
19
JUDGE WELSCH:
Let me ask you, Mr. Tompkins,
20
prior to coming with Sea World, what was your
21
background?
22
THE WITNESS:
I was going to college, trying to
23
get my biology degree, and I was a supervisor at Disney
24
World, River Country, for Wilderness Disney World.
25
JUDGE WELSCH:
Did you receive your biology
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degree?
THE WITNESS:
No, I did not.
JUDGE WELSCH:
So, the animal behaviors that
you're talking about with these killer whales is
something that you learned on the job working at Sea
World over these many years?
THE WITNESS:
Yes, sir.
When I started, there
was no college nor was there any education out there
about how to train animals.
As a matter of fact, the
10
type of training people did was not the type of training
11
that we wanted to do at Sea World.
12
punishment used in previous training.
13
circus training where it was all about deprivation,
14
taking food away and punishing animals.
15
There was a lot of

You could call it
Sea World did not want to water work their animals
16
that way.
17
way of training at that time, 33 years ago, and we
18
evolved into using more operant conditioning, using
19
positive reinforcement.
20
So, we had to break away from the traditional
JUDGE WELSCH:
I guess I'm trying to understand
21
when you came to work with Sea World, had they already
22
instituted this change from that operant behavior --
23
THE WITNESS:
Yes, sir.
24
JUDGE WELSCH:
-- to punishment?
25
THE WITNESS:
Yes, sir, we were just starting
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1
2
3
to -JUDGE WELSCH:
So, you kind of grew into the
system that Sea World started in place?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
So, your background and
experience is pretty much what you have learned through
Sea World and the way they deal with the animals, the
killer whales.
THE WITNESS:
Yes, sir.
I should note --
10
JUDGE WELSCH:
In terms of -- I'm sorry.
11
THE WITNESS:
I was going to say that, you
12
know, a handful of us, including Kelly and the park,
13
through our years of experience, we are part of the
14
development of that program.
15
developed this program into what it is.
16
there when I first started.
17
It's evolved.
We have
It wasn't fully
As a matter of fact, it was in its infancy, and
18
Sea World was the pioneer of being able to use its
19
positive reinforcement.
20
technique that we use now was presented in conferences
21
many years ago, and I'm pretty proud to say that most,
22
if not all, marine life parks use this process, and I
23
would venture to say that most terrestrial zoos use this
24
type of training.
25
JUDGE WELSCH:
As a matter of fact, this
Other than Sea World, are there
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other similar marine parks that perform, particularly
with the killer whales, the same as Sea World does, in
the United States?
Let's limit it to the United States.
THE WITNESS:
I know there are two other killer
whales in the United States.
in California.
I can't speak for the one
I'm not familiar.
JUDGE WELSCH:
Two other killer whale parks?
THE WITNESS:
There's two killer whales, one in
each park.
There's one in California, Marine World, I
10
think, and Miami Sea Aquarium.
11
know for a fact uses our technology because the curator
12
of that park used to be one of our Sea World trainers.
13
JUDGE WELSCH:
Miami Sea Aquarium, I
But, Sea World itself really kind
14
of dominates that industry of parks for killer whales
15
and the interactions with killer whales?
16
THE WITNESS:
Yes, sir.
17
JUDGE WELSCH:
So right or wrong, whatever Sea
18
World's practices are, they are the dominant player in
19
that industry.
They're the one that sets the standards?
20
THE WITNESS:
Yes, sir.
21
JUDGE WELSCH:
I want to try a get as best you
22
can some specifics.
In terms of the trainers that you
23
hire, are you involved in not necessarily choosing the
24
trainers to be hired, but are you involved in setting
25
the policy with regard to the hiring of trainers?
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THE WITNESS:
I'm a part of that group of
people that does set that policy.

JUDGE WELSCH:
Prior to January 2010 or
February 2010, when you sent out a job announcement,
what was the criteria that you set out in that job
announcement for animal trainers at Shamu Stadium
working with killer whales?
asking?
THE WITNESS:
I do.
Do you know what I'm
I think that question
10
would be better asked of Kelly who is involved in that
11
process.
12
basic fundamentals stay the same, but Kelly would
13
probably have a more accurate description of that.
14
15
16
I know they change periodically.
JUDGE WELSCH:
That's fair enough.
I know the
I think
she's coming back from what I understand.

Now, other than the change that you did, I think
17
it was in 2006 after that incident with the sweatshirt,
18
I think you described since that incident, you no longer
19
allow trainers to use loose clothing; you require wet
20
suits?
21
THE WITNESS:
Yes, sir.
22
JUDGE WELSCH:
Are there any other changes from
23
any incident, I'm not limiting it, any other changes in
24
terms of what the trainers were using or what they wore
25
or the way they dressed or however, were there any other
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changes made prior to the incident in February of 2010
that your trainers were required to do?
3
4
5
THE WITNESS:
Yes, sir.
It depended on the
incident and what occurred.

JUDGE WELSCH:
If you can give me a specific
incident.
but more specifically to the Orlando park, if you can
say, well, this incident in California based on that
incident, we made this change since 2010 or 2009
10
11
And, I'm talking about for all three parks,
whatever it is.
I understand wet suits came from 2006.
THE WITNESS:
Right, right.
The one that I
12
remember accurately is, of course, the one after the
13
Kasatka incident we just watched there.
14
JUDGE WELSCH:
15
Exhibit C-9 or something.
16
THE WITNESS:
That's the one with Mr. Peters,
Right, and although the Cal-OSHA
17
asked several things for us to do, and we accommodated
18
as many as we thought feasible, we did much more than
19
that too.
20
areas to help with that.
21
JUDGE WELSCH:
If you could, be specific for me.
22
THE WITNESS:
Okay.
23
JUDGE WELSCH:
That was in 2006.
We made a lot of environmental changes in our
What specific
24
changes did Sea World of Orlando make to their park or
25
to their trainers after that incident in 2006 in
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California?
THE WITNESS:
We put underwater videos in every
back camera and he put monitors back stage so the
trainers could see.
monitors what they could see out front, but we now have
underwater cameras in the back and we have monitors back
stage where we can see whales underwater in all of our
pools back stage.
They already had underwater
Back stage is like the hub of where the trainers
10
collectively group and make the decisions during the
11
show.
12
center where you can see what's happening.
13
So, it's that place where it becomes a control
JUDGE WELSCH:
You had monitors before; you
14
just didn't have them back stage?
15
understanding?
16
17
18
THE WITNESS:
Is that my
We
couldn't see what was under water back stage.

JUDGE WELSCH:
So, you made the change.
You put
19
it back stage so the other animal trainers could view,
20
see what's going on.
21
THE WITNESS:
We added
22
specific net boxes, that hold our nets.
23
of folded and kept in different instruments of holding
24
around the pool.
25
boxes for our nets and we added more nets to our pools.
We modified that.
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We had a net that could be easily reached for each one
of our killer whale pools.
one net that you would move around, we now have three or
four nets in each area so they are readily accessible.
JUDGE WELSCH:
So, instead of just having
Let's just stop there.
I want
you to finish, but in terms of the net, I saw the net go
out -- I mean, I didn't see the net go out, I saw it
towards the end of that video.
earlier segment, and I obviously must have missed it,
You said there was an
10
but I saw it towards the end.
11
where I see these buoys?
12
THE WITNESS:
Yes, sir.
13
JUDGE WELSCH:
And, I guess the net is below
15
THE WITNESS:
Yes, sir.
16
JUDGE WELSCH:
And that's what Mr. Peters
14
17
that.
climbed over to get out of the pool?
18
THE WITNESS:
19
60 feet by 30 feet.
20
JUDGE WELSCH:
It's a big net.
They're 150 or
They're big.
How are they set out in the
21
pool?
22
there's no net in the pool?
23
I'm assuming the net is
I'm assuming during the show or something,
THE WITNESS:
No, there's not.
They're in
24
boxes, they're in containment areas that could be remote
25
from the pool and you either carry it or roll it.
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what we did was we built net boxes in more places where
instead of, like I said, taking one net and trying to
move it, you could now cut your time dramatically if you
had nets more available.
So, by creating these boxes and more nets
available to you, we cut down the response time of your
ability to be able to go get a net.
JUDGE WELSCH:
How is the net put in the water?
THE WITNESS:
It's lifted out of the box.
10
this particular time, it's lifted out of the box.
11
right next to the side of the pool.
12
At
It's
It's folded a certain way, and you lift out a lead
13
line.
14
end that keeps the bottom of the net down and that's
15
always put up on top.
16
It's got a lead line, it's got a heavy weighted
So, you take the heavy part of the net, you put it
17
in the water and the heaviness of the lead line kind of
18
drags the net out of the box so you're literally
19
physically pulling it out of the box and putting it into
20
the pool.
21
22
23
JUDGE WELSCH:
out the nets?
What is the purpose of putting
What is that supposed to do?
THE WITNESS:
It's a distraction.
It's a way
24
of containing their swimming area.
25
entire front pool and I want to put the net across the
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pool and only cut the pool down to half the distance,
that contains the swimming area and it's a distraction
for the whales.
4
5
JUDGE WELSCH:
That is more considered one of
your emergency procedure responses?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Your wet suits is something
that's not really an emergency procedure, but it's a
change you made for the trainers when they're actually
10
interacting with the whales?
11
THE WITNESS:
Yes.
12
JUDGE WELSCH:
So, you have added the nets
13
since this 2006 incident for a better emergency response
14
procedure?
15
THE WITNESS:
Yes.
16
JUDGE WELSCH:
Are there any other incidents
17
that happened that you made changes in either the
18
emergency response or what the animal trainers wore or
19
anything else that you think that --
20
THE WITNESS:
Your Honor --
21
JUDGE WELSCH:
I'm looking for what the Company
22
23
is considering to make the trainer safer.

THE WITNESS:
I do have a document that shows
24
all of the incidents we've had and the response to every
25
one of those incidents.
If I could look at my notes, I
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could probably --
JUDGE WELSCH:
If you don't recall.
THE WITNESS:
Well, I think there's a lot of
them.
changes at our park and all the parks, and I know we
look at the specifics, and I'm trying to grab the very
important ones.
8
9
After every incident, we make some sort of
Obviously, the 2006 one I can rattle off a lot of

the fundamental things we've changed -- emergencies,
10
this, that -- you know, the trainers train more on the
11
emergency response, all the parks practice more.
12
Instead of just working with the emergency nets maybe
13
once or twice a year, it's four times a year.
14
The physical fitness of the trainers has changed.
15
Instead of doing a physical fitness test twice a year,
16
we went to four times a year.
17
physical fitness program to make sure that it was the
18
right type of physical fitness program set up for what
19
we did, the swimming part of it.
20
We actually looked at our
So, that one just rings a bell with me because I
21
remember that because it was not that long ago.
22
each one of them has certain things that we've done.
23
JUDGE WELSCH:
But,
I wasn't trying to prevent you
24
from looking at your notes.
25
you to do that because all attorneys are entitled to
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look at your notes.
problem with that.
3
4
Ms. Gunnin may or may not have a

So, that's the reason I stopped you.
MS. GUNNIN:
He can look at his notes, Your
Honor, and I have a copy for Mr. Black.
JUDGE WELSCH:
look of the your notes --
THE WITNESS:
In fairness, if you would like to
That's okay.
Because I've
answered your questions sufficiently enough.
want more detail, I can give it you.
10
JUDGE WELSCH:
If you
I'm looking for what changes,
11
what procedures were in place at the time of the
12
incident in 2000 that predated the incident in February
13
of 2010.
14
hearing talking about the protocols and the procedures
15
and the interactions of dealing with the whales.
16
Because we've spent a lot of time in this
So, I just want to get some understanding of what
17
factually, specifically what's going on.
18
understood the interactions and how you deal with it and
19
what you're looking for precursors and so forth.
20
THE WITNESS:
I've
I have have a document that I'm
21
more than willing to share with you on what our
22
responses were after each one of the -- especially the
23
incidents that had injuries.
24
25
JUDGE WELSCH:
that if you want.
Ms. Gunnin, I'll let you pursue
I will go on to something else.
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In terms of the interactions with the whales, I
guess my understanding is that Sea World has and has had
very specific protocols for Tilikum.
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
From the day Tilikum arrived at
Sea World, you kind of separated him in terms of the way
you're going to treat him versus the other whales?
THE WITNESS:
Yes.
JUDGE WELSCH:
And, then, I guess after the
10
incident in February of 2010, the protocols have gotten
11
even more strict in the way you're dealing with Tilikum?
12
THE WITNESS:
Yes, sir.
13
JUDGE WELSCH:
But, I guess my sense is with the
14
other five or six whales, you don't have specific
15
protocols in dealing individually with those whales.
16
I misunderstanding?
17
THE WITNESS:
Yes, sir, because we do have very
18
strict protocols with our water work animals too.
19
They're just different from Tilikum.
20
with specific rules, and then we have water work with
21
very specific rules.
22
23
24
25
JUDGE WELSCH:
He's nonwater work
And, each whale is treated
differently?
THE WITNESS:
Am
Yes, because each whale is a
different age, has a different history, a different
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experience level, just like the trainers do.

So, we've got younger whales, we've got more
experienced whales.
are learning, we're very careful with.
experienced whales that have been there 20 or 30 years
that are more experienced water work whales, they have
certain rules and regulations.
8
9
10
Obviously, the younger whales that

The more
They all apply to all the work water animals.
It
just depends on the experience level, the person that's

working that whale.
11
Do you understand what I'm saying?
12
JUDGE WELSCH:
I understand.
13
THE WITNESS:
Okay.
14
JUDGE WELSCH:
Let me ask you a few questions
15
about whales.
16
THE WITNESS:
Okay.
17
JUDGE WELSCH:
I know nothing about whales.
18
guess in response, Sea World of Orlando has seven killer
19
whales?
20
THE WITNESS:
Yes, sir.
21
JUDGE WELSCH:
What is the life expectancy of
22
23
24
25
the killer whale?

THE WITNESS:
We think the females will live 40
to 45 and we think the males live from 30 to 35.

JUDGE WELSCH:
Tilikum, is he considered the
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oldest of the whales that are at Orlando?
THE WITNESS:
No, he's not the oldest.
JUDGE WELSCH:
What's the youngest of the seven
4
5
at Orlando?
THE WITNESS:
We have a young animal there
that's about a year, I'm going to say; year or year and
a half.
8
9
I'm sorry, I don't know exactly.
JUDGE WELSCH:
That's fine.
I'm just trying to
get a sense of the range of ages of the killer whales.
10
THE WITNESS:
Year and a half to 35.
11
JUDGE WELSCH:
And, before they start the shows,
12
13
doing any shows, what age?

THE WITNESS:
Is there a minimum age?
Well, that's a difficult question
14
because our babies obviously are born to moms that are
15
more water work animals, so a lot of times, when we're
16
doing water work, we'll have her baby next to us, and
17
it's as early and two or three months that we actually
18
start to interact with that baby.
19
we're performing with it.
20
JUDGE WELSCH:
21
22
It's with the mom and
When you say performing, that's
in the show?
THE WITNESS:
Or sessions or show sessions, but
23
within a few months, the baby is already starting to pay
24
attention to us and starting to mimic the mom, and
25
starting to want to pay more attention to us.
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training starts very early.

Now, when I say training, it's very fundamental.
You know, come over and pay attention to me and hold
still, and, of course, as its attention span gets
longer, then we're able to ask more, to do more with
that baby as it develops.
months of age, that they're staying with us while the
mom is performing.
JUDGE WELSCH:
It's not unusual that at six
The killer whales at Orlando,
10
the babies and so forth, or the one you have that's a
11
year old, was that born here in Orlando?
12
THE WITNESS:
Yes, sir.
13
JUDGE WELSCH:
I guess I have the sense that
14
the killer whales, you move them around to different
15
facilities, or do they now pretty much stay in one
16
location or one park or the other?
17
THE WITNESS:
We don't really move our killer
18
whales that often because they are social groups.
19
that's not to say that we don't; and, of course, we're
20
always evaluating our genetic pool to make sure we have
21
that proper balance we talked about earlier.
22
Now,
If we've got more males in one park and we're
23
lacking a male in another park, we have at times moved
24
whales accordingly, but it's not a common practice.
25
don't do it often.
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JUDGE WELSCH:
So, the killer whales at Orlando
pretty much like this group of seven, other than the
baby that you said is about a year old, they have been
together for a fairly lengthy period of time?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Over four or five years?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Mr. Black, do you have any
Redirect?
10
MR. BLACK:
I do have some.
I would just ask
11
for a brief break so I can make it as efficient as
12
possible rather and just --
13
14
JUDGE WELSCH:
Do you think we can finish
tonight with Mr. Tompkins?
15
MR. BLACK:
I would expect that my total will
16
be less than 20 minutes.
17
JUDGE WELSCH:
18
We stand adjourned for
five minutes.
19
20
was held off the record)
21
JUDGE WELSCH:
22
23
oath.
24
THE WITNESS:
Yes, sir.
25
JUDGE WELSCH:
Mr. Black?
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---o0o---
2
3
BY MR. BLACK:
Q.
Mr. Tompkins, I realize it's been a very long
day for all of us.
questions.
I only have a few brief follow-up
A.
Okay.
Q.
You were talking about working with Tilikum
10
and using since day one only the most senior people to
11
work with Tilikum; do you recall that?
12
A.
Yes.
13
Q.
And, that's because Tilikum presented unique
14
15
hazards for a trainer or working with Tilikum, right?

A.
We placed senior people on him because he was
16
an unknown.
17
involved in a situation that we were not familiar with.
18
So, the most appropriate thing we felt was to treat him
19
as the most experienced people.
20
Q.
He came to us from a park where he was
And, the unknown, in fact, you treat that as
21
if that's a known hazard.
That's how you have to treat
22
the unknown as if it's a known hazard, right?
23
A.
Yes.
24
Q.
So, the spotter, their role with Tilikum, I
25
realize that they might be observing if there's any sort
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of behavioral or environmental cues or whatever you call
it, but if somebody went into the water with Tilikum,
the spotter's role at that point is really just to hit
the alarm, right?
A.
the situation.
the animal.
play in this particular situation, yes.
Q.
Yes, sir.
Well, I should say it depends on
If they can access the water, redirect
There's different functions a spotter can
We all can agree that the trainer, Ken
10
Peters, whom we saw on the video earlier, he acted
11
heroically in what he did.
12
trained to do it, none of us would like to have been in
13
his situation and trusted our ability to act the way he
14
acted, right?
15
A.
16
While he may have been
I would think most, if not all of our
experienced trainers would have reacted that way.
17
Q.
You would like to believe that, of course.
18
A.
Yes.
19
Q.
But, there's no way to measure that they
20
would do that, and besides which we're only talking
21
about at that point whether one is going to be seriously
22
injured or whether one is going to be killed, right?
23
A.
I'm not sure if I understand the question.
24
Q.
Well, I mean, Mr. Peters suffered serious
25
injuries as a result of that interaction, right?
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A.
Yes, he did.
Q.
And, through his actions that he was able to
take, as you say, to remain calm, calm the whale, he was
able to be fortunate that the whale didn't escalate and
do something worse?
A.
It was his skill level that helped, right.
Q.
So, it couldn't get him back so that the
whale didn't begin aggression.
of preventing it from turning into something even worse
10
It only had the effect
than the already bad thing that happened, right?
11
A.
In that particular situation.
12
Q.
And, the Judge asked you some questions about
13
the loose clothing with Ms. Van Oss?
14
A.
Yes.
15
Q.
And, I think that was from 1997; not from
17
A.
Yes, I'm sorry.
18
Q.
And, the lesson of that incident report was
16
2005?
19
don't wear loose clothing, right?
20
wet suits?
Everybody should wear
21
A.
Correct.
22
Q.
And, despite at that point, California had
23
pointed out that we ought to de-sense in case somebody's
24
hair gets in the water, in case anything else that's
25
loose might get near a whale.
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de-sensed for that circumstance, correct?
A.
Yes.
Q.
Tilikum wasn't de-sensed for having, if, in
fact, it was hair that got in the water, he was not
desensitized for that, was he?
A.
He was not trained in water work.
Q.
But, this was not water work.
This Ohio
incident with the sweatshirt, we're not talking about
water work?
10
A.
You're correct.
His de-sense training, he
11
had de-sense training, he had optic de-sensing training,
12
and the different scenarios, but we did not specifically
13
train hair de-sense.
14
Q.
And, the corrective actions as well as the
15
recommendations in that Ohio report talked about
16
de-sensing to training the whale to ignore personal
17
objects, trainer gear, clothing, etcetera, right?
18
A.
Yes.
19
Q.
And, that's for trainers on the land, right?
20
A.
Land and probably in the water as well.
21
Q.
In the water but also the land, right?
22
A.
Yes.
23
Q.
And, in California the curator there
24
recommended, he said, "We hope that you plan to
25
eventually desensitize all the whales that work well
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with you regardless of what you're wearing," right?
It
went on to say, "You can't guarantee that this apparel
or hair or objects will never be within reach.
to address the problem," right?
Better
A.
Yes.
Q.
And, so what Sea World is describing as the
way that they believe Ms. Brancheau got into the water
was that they said she was pulled by her pony tail,
right?
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A.
Yes.
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Q.
And, that's exactly what this report says
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there needs to be de-sensing on, right?
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A.
Yes.
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Q.
So, Tilikum did something that California
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warned needed to be -- Tilikum did something that
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California suggested needed to be prevented; that is,
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having a whale who is not desensitized to an object or
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hair or anything else that he might grab, right?
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A.
Yes.
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Q.
Now, you said something about sharing
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information between all the parks, I think, in response
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to the Judge asking you some questions, right?
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A.
Yes.
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Q.
And, I guess he was clarifying the sharing of
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incident reports and evaluations, right?
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A.
Yes.
Q.
And, you said that it was shared so that they
would have an opportunity to evaluate and have the input
from the other parks; the expertise from the other
parks, right?
A.
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Are you talking in general or specific
incident reports?
Q.
In general.
I mean, that's how generally,
right?
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A.
Yes.
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Q.
But, the evaluation, the analysis was
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something that was done in-house.
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Sea World Parks, right?
It was restricted to
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A.
Incident reports?
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Q.
Yes.
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A.
Yes.
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Q.
So, it wasn't like Sea World went and got an
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outside safety consultant or outside safety person who
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was not part of the Sea World animal training culture
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and part of the animal training program to evaluate
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whether changes ought to be made, right?
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A.
We did not.
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Q.
Now, you mentioned something about Mr.
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Peters.
You said he executed -- and I think I'm quoting
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you right -- he executed the escape plan properly,
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right?
A.
I meant to say emergency response plan, but
that was the word that came out.

Q.
And, the escape plan for Tilikum, what was
that escape plan?
A.
The emergency response plan, you mean?
Q.
There wasn't really an escape plan for
Tilikum, was there?
A.
There was an emergency response plan for him.
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Q.
But, there wasn't any expectation with any
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degree of predictability that it would work to rescue
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somebody from the water who got into the water with
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Tilikum?
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A.
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It was unknown, but we still had the process
in place.
Q.
And, lastly, the Judge asked you about
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changes not to behavioral training protocols and the
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like but asked about the physical changes, changes that
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weren't in the behavioral world, if you will, right?
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A.
Yes.
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Q.
I mean, you mentioned the wet suits?
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A.
Wet suits is one.
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Q.
Something about cameras monitoring the back
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pools?
A.
Yes.
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Q.
And, I was a little unclear, the purpose of
monitoring the back pools was so you could see if the
whales in the back pools were interacting in some social
way that might affect whales in the front pool?
A.
It could, yes.
Q.
That was the purpose for it, right?
A.
Yes.
Q.
Was there any other purpose beyond that?
A.
No, it was just more information.
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Q.
But, it was to gain more behavioral
11
information?
12
A.
Yes.
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Q.
And, the changes that have actually been made
14
since the incident with Ms. Brancheau are that Sea World
15
no longer does water work, and Sea World uses protected
16
contact for interacting with Tilikum, right?
17
A.
Yes, sir.
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Q.
And, those changes actually are changes of
19
the kind that the Judge was asking you about; about what
20
sorts of things might be done in order to provide
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greater protection to the trainers, right?
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A.
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MR. BLACK:
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Yes.
Mr. Tompkins.
JUDGE WELSCH:
Ms. Gunnin?
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MS. GUNNIN:
Judge, may I ask just one
question?
JUDGE WELSCH:
Yes, go ahead.
---o0o---
RECROSS-EXAMINATION
BY MS. GUNNIN:
Q.
Mr. Tompkins, the trainers that worked around
Tilikum prior to February 24th, the female trainers, do
they wear their hair in pony tails?
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A.
Yes, they do.
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Q.
And, were they close to Tilikum's head?
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A.
Yes, they were.
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Q.
Did he ever grab those pony tails?
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A.
No, he did not.
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MS. GUNNIN:
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JUDGE WELSCH:
Is Mr. Tompkins excused as a
17
witness?
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MS. GUNNIN:
Yes, Your Honor.
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JUDGE WELSCH:
Mr. Black?
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MR. BLACK:
We would reserve calling him for
21
rebuttal if necessary if something comes up in the
22
Respondent's case.
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JUDGE WELSCH:
Okay.
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Mr. Tompkins, I will instruct you not to discuss
25
your testimony with other persons who may be called as
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witnesses.
Counsel has indicated you're still on
potential call.
Do you understand?
THE WITNESS:
Yes, I do.
JUDGE WELSCH:
You have not been excused as a witness.
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(Witness Excused)
JUDGE WELSCH:
Are there any matters that need
to be put on the record before we adjourn?

MR. BLACK:
JUDGE WELSCH:
Nothing from the Secretary.

We stand adjourned until 9:00
tomorrow morning.
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this 30th Day of November 2011, A.D.
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BY:__________________________
Norma Carlin
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----------------------------------- x
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SECRETARY OF LABOR,
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Complainant,
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-vs)
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Respondent,
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------------------------------------x
OSHRC DOCKET
NO. 10-1705
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VOLUME IV.
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Before:
Judge Ken S. Welsch
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Date:
Thursday, September 22, 2011

9:00 a.m.
Place:

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APPEARANCES:
JOHN BLACK, ESQ.
Suite 7T10
(404) 302-5435
Suite 2400
(404) 525-8622
GEORGE COE, ESQ.
JON L. MILLS, ESQ.
KAREN DYER, ESQ.
Suite 840
407-425-7118
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I N D E X
WITNESSES
Name
Groves
Topoleski
Duffus
Direct
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734
763
Cross
Redirect
708
748
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729
756
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---o0o---
EXHIBITS
Complainant's
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C-10
C-11
C-12
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Respondent's
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R-4
Recross Voir Dire
Description
Photos of Bridge
Sea World's Rules of Thumb
Duffus Opinion Report
Photo Groves and Tilikum
Marked
Admitted
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681
826
709
709
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711
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Morning Session
9:00 a.m.
JUDGE WELSCH:
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Your Honor, the
Secretary wishes to call Shana Groves.
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---o0o---
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SHANA GROVES,
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was examined and testified as follows:
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JUDGE WELSCH:
Ma'am, for the record, would you
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your address, please.
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THE WITNESS:
Shana Lea Groves, G-r-o-v-e-s,
911 Essex Place, Orlando, Florida 32806.
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JUDGE WELSCH:
Thank you.
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Your witness, Ms. Howard-Fishburne.
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---o0o---
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DIRECT EXAMINATION
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Q.
Good morning, Ms. Groves.
A.
Good morning.
Q.
How are you?
A.
Okay.
Q.
I just have a few questions for you.
You're currently employed as a senior animal
trainer?
A.
Yes.
Q.
And, what are your job responsibilities as a
10
11
senior animal trainer?

A.
My job responsibilities are to take care of
12
the animals, take care of the health and the cleanliness
13
of the area, to train the animals.
14
Q.
15
killer whales?
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A.
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When you say "animals," you're talking about
Not necessarily.
I work with eight different
species of marine mammals since I've been at Sea World.
18
Q.
Are you working at Shamu Stadium?
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A.
No, I'm not.
20
Q.
When did you leave the Shamu Stadium?
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A.
About a week and a half ago.
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Q.
Where are you currently working?
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A.
Sea Lion and Otter Stadium.
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Q.
But, you're still a senior animal trainer
25
there?
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A.
Yes, ma'am.
Q.
What animals are you working with at Sea Lion
and Otter?
A.
Sea lions, otters and walrus.
Q.
Was that a voluntary transfer?
A.
Yes.
Q.
Any particular reason why you transferred to
Sea Lion and Otter?
A.
I have decided in moving forward after the
10
incident, that I would like to move into a different
11
area.
12
13
Q.
Was that considered a promotion or was it
just a lateral transfer?
14
A.
No, we can be transferred to any area at any
16
Q.
So, you requested to be moved?
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A.
Yes, ma'am.
18
Q.
And, that was as a result of the accident?
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A.
Yes, I would say.
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Q.
While you were at Shamu Stadium -- let me
21
just back up.
22
animal trainer for about six years, or had you been at
23
Shamu Stadium for about six years?
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time.
A.
February 24, 2010, you had been a senior
I currently have been at Shamu Stadium for
about six years.
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Q.
Six years, okay.
Did you work in any other
Sea World Parks prior to working at Shamu?
A.
Not Sea World Parks, no.
Q.
So, when you started your career at Sea
World, you started at Shamu Stadium?
A.
No.
Q.
Where did you start?
A.
I started at Whale and Dolphin Stadium, and
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then I was at Sea Lion and Otter Stadium and then I was
at Shamu.
Q.
And, Whale and Dolphin is a part of Sea
World, isn't it?
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A.
Yes.
14
Q.
I'm trying to make sure I understand the
15
chronology here.
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Dolphin?
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A.
For a little less than a year.
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Q.
When did you begin at Whale and Dolphin?
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How long did you work at Whale and
What year?
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A.
That would have been in January of `02.
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Q.
So, did you transfer over to Shamu in 2003?
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A.
There were a lot of transfers back and forth
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when I first got there.
To be specific, I was at Shamu
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for about two weeks, and then I went to Whale and
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Dolphin for about four months, and then I went back to
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Shamu for about three months.
of back and forth between Shamu and Whale and Dolphin,
just based on need.
That first year was kind
I was an apprentice trainer so I pretty much
scrubbed buckets, and then I think it was August or
September of `02 I moved to Sea Lion where I stayed for
three years.
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9
10
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Q.
And, then, after working at Sea Lion and
Otter for three years, then you went over to Shamu to

serve permanently or for a good period of time?
A.
Yes, but, again, at any time, you can be
12
moved from any Stadium to any Stadium based on the needs
13
of the business.
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Q.
So, you said you stayed at Sea Lion and Otter
15
for about three years and then you went to Shamu, what,
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in `05 or `06?
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A.
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That was I believe `05, August of `05.
just going off of memory here.

Q.
Did you work at Shamu from August of `05
until a week ago?
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A.
Yes.
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Q.
Okay, great.
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I'm
When you started at Shamu
Stadium, did you go through orientation?

A.
Yes, we had -- we didn't necessarily call it
orientation.
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Q.
What was it called?
A.
I was just a new trainer.
We did a lot of --
the first couple of days there, you do a lot of reading
manuals because every area is different, and so every
area has different rules, every area is set up
differently.
just getting acquainted with the area really.
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Q.
So, we do a lot of reading of manuals and
When you say, "manual," was one of the
manuals that you had to read the standard operating

procedures for Shamu?
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A.
Yes.
12
Q.
And, you said you read that in the first
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couple of days that you started?
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A.
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down and read.
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Q.
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Yes, that's the first thing you do is you sit
Do you do that alone or was that with a group
of trainers?
A.
I believe I came in by myself.
Like, in that
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set of moves, I was the only one that moved there, so I
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would say I wasn't necessarily alone, but I was -- I
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would sit in the trainer lounge where people would come
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in and out, and I had a lot of assistance with it
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because, you know, when you're reading a new manual and
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you're in a new area, if something doesn't make sense, a
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lot of people were helping me with all that.
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Q.
As you were reviewing the manual, were you
ever tested on your knowledge of what was actually in
the manual?
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A.
Tested as in given a test and having to write
it, no.
Q.
Quizzed or questioned by senior trainers?
A.
Questioned, yes.
We would always kind of --
we went over it with one another.
something that you learned before you moved on from that
10
It was definitely
point.
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Q.
I want to show what has previously been
12
marked as C-1.
13
talking about, the SOP's?
Is this the manual that we've been
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A.
Yes, it looks like it.
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Q.
And, you said when you first started, this is
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actually what you had to sit and read through?
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A.
Oh, yes, this is it.
And, we would re-read
this every year.
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Q.
So, every year you were also required to read
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A.
Yes, ma'am.
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Q.
And, when you started at Shamu, was your
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it?
title a senior animal trainer?
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A.
Senior animal trainer, yes.
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Q.
But, prior to that time, you had no
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experience working with killer whales; no in-depth
A.
whales.
World.
World.
Killer whales, no; cetaceans, yes.
Dolphins,
I had prior experience before coming to Sea

I worked at the Living Seas at Walt Disney
Q.
What types of animals did the Living Seas
A.
They had dolphins and manatees.
10
Q.
So, during the course of your first couple of
have?
11
days working at Shamu, you were provided standard
12
operating procedures.
13
Talk?
Were you also given the Tili
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A.
Oh, yes.
15
Q.
And during that talk, you were provided
16
information regarding Tilikum's history?
17
A.
Absolutely.
18
Q.
And, Sea World's management informed you that
19
Tilikum had been involved in two prior deaths?
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A.
Yes, ma'am.
21
Q.
And, they also instructed you about how
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important it was to be safe and Tilikum; is that
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correct?
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A.
Yes, absolutely.
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Q.
And, you were provided with information
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regarding Tilikum's history and the prior deaths that he
had been involved in, correct?
A.
Yes.
Q.
And, you were told that Tilikum was
possessive of objects; is that correct?
A.
Yes.
Q.
And that you needed to be careful?
A.
Yes.
Q.
And, in fact, you were very careful when you
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worked around Tilikum?

A.
Yes, and I didn't work really around his
pools for about four years.

Q.
And, when you say, "worked around his pools,"
14
when you started working around his pools for four
15
years, were you then on one of his teams?
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A.
I was.
I was initially put on the nontactile
team; therefore, I can get engaged, etcetera.

Q.
And, at some point you become a part of
Tilikum's team?
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A.
Tactile team, yes.
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Q.
How many years was that from the time you
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actually started at Shamu?
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A.
I couldn't say specifically.
24
Q.
Do you remember providing a statement to the
25
I don't know.
OSHA compliance officer?
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A.
Yes, ma'am.
Q.
After this incident?
A.
Yes.
Q.
And, if the statement that you provided said
that was it was seven years after you had started at
Shamu, would that about correct?
A.
At Shamu?
Q.
Or at Sea World?
A.
I would say I probably have been at Sea World
10
about seven years, yes.
11
12
Q.
And, you said about four years you were on
the nontactile team?
13
A.
Three or four.
I was at Shamu.
I got to
14
Shamu about my fourth year for Sea World, I think, and
15
then I was at Shamu for another three years, so that
16
would be seven before I was put on his nontactile team.
17
I think.
18
Q.
And, you a started at Shamu in August of `05?
19
A.
Yes, ma'am.
20
Q.
And, so do you recall what year you actually
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got on his nontactile team?
22
`08?
Would that have been in
23
A.
It's a possibility.
24
Q.
Could it have been earlier?
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A.
Like probably not more than a year earlier.
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I mean, it was `05 to `07.
`08 that I was put on his nontactile team.
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4
Q.
I would say it was probably
Were you provided special training to become
a member of his tactile team?
A.
Yes.
Q.
What type of training were you provided?
A.
It was a lot of observational training.
did a lot of watching, working with his specific team
members and doing things around his pool.
10
11
Q.
Were you also required to read the special
chapter on Tilikum?
12
A.
Yes.
13
Q.
And, you were required to do that even if you
14
were not going to do water work with Tilikum, right?
15
A.
Yes.
16
Q.
And, that's a part of the safety protocol?
17
A.
Yes.
18
Q.
And, when you started initially at Shamu when
19
you were given information regarding Tilikum, you were
20
told that with Tilikum, if you fell in the water it was
21
likely you might not survive; is that correct?
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A.
Yes.
23
Q.
Were you also provided information -- were
24
25
you provided access to Tilikum's animal profile?

A.
Yes.
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Q.
Were you required to read those animal
profiles?
A.
Yes.
Q.
In being required to read those profiles, did
you do that with a supervisor, or was that just
something you did on your own?
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8
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A.
We have coaches and so I probably did it with
my coach.
Q.
But, you don't have any recollection sitting
here today whether you did it with your coach?

A.
No, not specifically.
I know that I read all
of the animal profiles for all of the whales.

Q.
Did you have to sign off?
Did you have to
14
sign any certifications saying that you had read
15
Tilikum's animal profile?
16
A.
We would sign off that we had read it, yes.
17
Q.
Is that something you had to turn in to the
18
supervisor?
19
A.
Yes, they would -- yes.
20
Q.
And, during your training when you initially
21
came to Shamu, I know you said the first couple of days
22
you were required to read the manual?
23
A.
Yes.
24
Q.
Was that just in the first couple of days?
25
When did you actually start moving to being able to
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observe the whales when you began at Shamu?
A.
It was nothing specific.
hurried.
through them, read them, ask any questions that you may
have.
everything you need to help you understand what they're
saying."
It was really just, "Here are the manuals.
And, then, it's really just getting

acquainted with the area.
You're scrubbing buckets,
10
you're cleaning showers, you're scrubbing floors and
11
setting shows.
12
animal-wise when you first get there.
13
14
15
Go
We'll take you, we'll show you, we'll do
8
9
Nothing was really
Q.
I mean, you really don't do anything
When you say "scrubbing buckets," what does
that mean?
A.
We have the animal's food in a fish bucket,
16
buckets of fish, and every time we use one, we have to
17
scrub it, clean it and put it up to dry.
18
19
Q.
And, were you responsible for filling up
those buckets or carrying those buckets?
20
A.
Yes.
21
Q.
And, when you were required to do that, where
22
would you go to get those buckets and where would you
23
bring them to?
24
A.
25
They were in the freezer, in the fish house
cooler, and we would bring them to wherever they needed
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to go.
The Stadium is huge so wherever.
Q.
Would that require you to walk on the stage
or walk across the bridges?
A.
Sometimes, yes.
Q.
And, in walking across the bridges, you would
be carrying one or two buckets?
A.
One or two.
Q.
You could have two?
A.
Yes.
10
Q.
I'm going to show you --
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MR. BLACK:
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JUDGE WELSCH:
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what we'll mark as Exhibit C-10.
Your Honor, it's Tab 28.

Okay.
I'm going to show you
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18
Q.
Ms. Groves, I've shown you what has been
19
marked as C-10, photographs.
Can you identify those
20
documents for me?
21
the Number 1243 at the bottom, left?
Do you recognize the photo that has
22
A.
Yes, I recognize the photo.
23
Q.
What is this a photo of?
24
A.
The front pool of the Shamu Stadium.
25
Q.
Let's turn to the next page, and I think the
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number there is 1244.
A.
Yes, ma'am.
Q.
And, what is this a picture of?
A.
The bridge walk over.
Q.
And, is this an area where you would have
access to?
A.
Yes, ma'am.
Q.
And, in your duties as an animal trainer.
Did you have occasion to walk across this bridge?
10
A.
Yes.
11
Q.
And, is this the bridge that you were
12
referring when you were saying "carrying the buckets"?
13
A.
Yes.
14
Q.
If you could just turn to 1245 that's on the
15
next page.
It should be anyway; the bottom left.
16
A.
Okay.
17
Q.
Can you identify what's in this photo?
18
A.
The same bridge.
19
Q.
Do you recognize the person that's walking up
20
the stairs under the bridge?
21
22
23
A.
Not from that photo, I can't tell who that
Q.
And, do you recall if the condition of this
is.
24
bridge area was like -- what's depicted in this picture,
25
was this the way the bridge looked on February 24, 2010?
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A.
I don't remember.
Q.
Do you recall whether there was a railing in
3
4
this area in February 2010?

A.
To be honest with you, I don't recall there
ever not being a railing there.
that there's not a railing there because I don't
remember that.
Q.
I'm surprised to see
And, can you turn to the next page for me.
That's 1246.
10
A.
Okay.
11
Q.
And, this is just another picture of the
12
Shamu Stadium?
13
A.
Okay.
14
Q.
Different portion; is that correct?
15
A.
Yes.
16
Q.
Thank you.
17
You can put that down.
Now, as a part of your training as an animal
18
trainer, you were instructed not to turn your back on
19
the killer whale; is that correct?
20
A.
Yes, ma'am.
21
Q.
And, the reason you were told that is because
22
23
24
25
killer whales are unpredictable, right?

A.
animal.
Q.
You are taught to never turn your back on any

It doesn't matter which animal it is.
But, specifically, when you were at Shamu,
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you were told not to turn your back on the killer
whales?
3
4
5
A.
Because that's the only animal that's there
is the killer whale.

Q.
And, the purpose for that rule is to ensure
you know where the killer whale is at all times,
correct?
A.
Yes, of course.
Q.
Because it's possible that the killer whale
10
11
could come out of the water and bump you, correct?

A.
Yes, any animal, really.
Saying from before
12
that I worked in every stadium, that's what we say in
13
all the stadiums to never turn your back on an animal.
14
15
Q.
But, specifically, on February 24, 2010, you
were working at the Shamu Stadium?
16
A.
Yes.
17
Q.
And, you worked there for several years,
18
correct?
19
A.
Yes.
20
Q.
And, as part of Sea World's training
21
protocol, you were told at this particular Stadium not
22
to turn your back on a killer whale, right?
23
A.
Right, yes.
24
Q.
And, in your training, Sea World even had a
25
specific document called the Rules of Thumb, correct?
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Do you remember that?
your protection?
3
4
A.
Giving you specific rules for
I don't know what document you're referring
to specifically.
May I approach the
witness, Your Honor?
10
JUDGE WELSCH:
11
12
Q.
13
It's Tab 4, Your Honor.
Yes.
Showing you what has been marked as Exhibit
C-11 --
14
A.
Yes.
15
Q.
-- Ms. Groves, do you recognize that
16
document?
17
A.
Yes, ma'am.
18
Q.
And the title is Rules of Thumb?
19
A.
Yes.
20
Q.
And, is this a part of your training as an
21
22
animal training?
A.
Yes, we receive this, I believe, in what we
23
call like an associate workbook, something that we would
24
as trainers put together, fun things for our associates
25
to learn and do because the associates and the
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apprentices really just scrub buckets and do kind of the
dirty work.
from, is from the associate workbook.
Q.
So, I believe that's what this document is
Right, and on the document there is a box
down to your right and it says, "Don't turn your back on
the whales," correct?
A.
Yes, ma'am.
Q.
And, that's for your protection, correct?
A.
Yes.
10
Q.
And it's also because whales are
11
unpredictable, correct?
12
A.
Yes.
13
Q.
And, the document also says, "Don't wrestle
14
around the whales," correct?
15
A.
Yes.
16
Q.
And, that's to ensure that trainers don't
17
18
19
20
fall in the water, correct?

A.
Probably.
I didn't write the document; but,
yes, I would say.

Q.
You didn't write the document, but you said
21
this is something that senior trainers provide to the
22
associates?
23
A.
Yes.
24
Q.
And, that's the new trainers, correct?
25
A.
The associate trainers?
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1
2
Q.
The associate trainers.
That's the less
experienced trainers, correct?
A.
Less experienced, yes.
Q.
And, so you're providing them something fun
for them and providing them information, correct?
A.
Correct.
Q.
So, the "don't wrestle around whales," the
purpose of that would be to ensure that you don't fall
into --
10
A.
Being careful.
11
Q.
Being careful.
12
Now, when you gave your statement to Ms.
13
Padgett, the OSHA compliance officer, you provided
14
information to her regarding your interactions with
15
Tilikum, correct?
16
A.
I believe so.
17
talked.
18
talked about.
19
Q.
20
Do you remember that?

It was a long time ago that we
So, I don't remember specifically what we
Do you remember telling Ms. Padgett that you
had witnessed Tilikum chasing after birds?
21
A.
Do I remember telling her that?
22
Q.
You don't remember that?
23
I'm showing you
your statement.
24
A.
Thank you.
25
CARLIN ASSOCIATES
Your Honor, this is not
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1
2
3
an exhibit.
Do you need a copy?
JUDGE WELSCH:
No.
Have you shown it to
Counsel?
Q.
Yes.
Can you identify this document for the
record?
A.
Q.
Is that your name at the top?
10
A.
Yes.
11
Q.
Is that your address listed?
12
A.
My previous address, yes.
13
Q.
And, the document contains five pages?
14
A.
Yes.
15
Q.
Is that your signature on the fifth page?
16
A.
Yes.
17
Q.
And, it's dated March 15, 2010?
18
A.
Yes.
19
Q.
And, you had an opportunity to review the
20
statement before you signed it, correct?
21
A.
Yes.
22
Q.
And, in fact, you even made changes to the
23
document, correct?
24
A.
Yes.
25
Q.
And, could you turn for me to Page 3 of the
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document?
A.
Okay.
Q.
I'm sorry, give me one second.
place.
I've lost my
Looking at Line 5.
A.
Okay.
Q.
And, it says, "Has seen him chase after birds
before."
A.
Yes.
Q.
And prior to that -- do you need a moment to
10
11
12
13
14
Do you recall that?
look at the document?

A.
We can move forward.
I'll let you know.
Thank you.
Q.
So, when it said, "have seen him chase after
birds," you were referring to Tilikum; is that correct?
15
A.
Probably, yes.
16
Q.
Not probably.
17
A.
Well, not probably.
Well, maybe I need to
18
read it to make sure (reviewing document.)
19
what I'm referring to here.
20
21
Q.
Yes, that's
And, prior to today, have you had an
opportunity to review this statement?
22
A.
No.
23
JUDGE WELSCH:
I guess the question I need to
24
find out, do you recall stating that to the compliance
25
officer?
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THE WITNESS:
Yes.
JUDGE WELSCH:
The other question is, as you
testified, do you recall actually seeing Tilikum chase
birds?
THE WITNESS:
Yes.
Q.
And, in fact, after you provided the
statement, you were given a copy of your statement;
isn't that correct?
10
A.
I don't remember.
11
Q.
You don't remember?
In addition to your
12
training involving Tilikum, you were told to always keep
13
your bucket in front of you; isn't that correct?
14
barrier between you and the animal?
15
A.
Yes.
16
Q.
And, that was again for your safety and
17
Keep a
protection, correct?
18
A.
Yes.
19
Q.
And, you followed that advice, didn't you?
20
A.
I wouldn't say whenever we are working with
21
animals, do we always have a bucket sitting in front of
22
us?
23
24
25
No.
Q.
But, if you had one, you would use it as a
barrier; isn't that correct?

A.
Sometimes.
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Q.
In particular with Tilikum?
A.
Sometimes.
Q.
Not all the time?
A.
Not necessarily.
Q.
And, when you worked with Tilikum, you used a
conservative approach when working with Tilikum; isn't
that correct?
A.
Always.
Q.
And, that was because of the history with
10
Tilikum; isn't that correct?
11
A.
Yes.
12
Q.
Now, are you familiar with the corporate
13
incident reports that are prepared by Sea World?
14
A.
I'm familiar with them, yes.
15
Q.
And, as a senior animal trainer, are you
16
given access to those incident reports?
17
A.
Yes.
18
Q.
And, are you required to read the incident
19
reports?
20
A.
Yes.
21
Q.
And, is it your understanding that after an
22
incident, Sea World records that incident on a corporate
23
incident form?
24
A.
Yes.
25
Q.
Prior to February 24, 2010, you had an
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incident with a killer whale; isn't that correct?
A.
Yes.
Q.
And that killer whale's name was Ikaika?
A.
Yes.
Q.
Can you spell that?
A.
I-k-a-i-k-a.
Q.
And, you were interacting with that killer
whale?
A.
Yes.
10
Q.
And, is it a female or a male?
11
A.
Male.
12
Q.
And, the killer whale actually bit down on
13
your thigh, isn't that correct, or your leg?
14
A.
Yes.
15
Q.
And, you would agree with me that that's a
16
form of aggression?
17
A.
18
Q.
Did you meet with the Sea World attorneys to
19
prepare for your testimony today?
20
A.
Yes.
21
Q.
And, how long did you prepare with the Sea
22
23
24
25
World attorneys?
A.
We've chatted at Sea World for, I don't know,
less than a half hour.

Q.
And when did that occur?
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A.
Last week sometime.
Q.
You don't remember when last week?
A.
Not specifically.
4
5
6
I don't remember the day
of the week.
Q.
Did you have to seek medical treatment after
Ikaika bit down on your leg?
A.
No.
Q.
Did you report the incident to your
supervisor?
10
A.
Yes.
11
Q.
Who was actually present when this occurred?
12
A.
Sam Davis.
13
Q.
Who is Sam Davis?
14
A.
He was my supervisor at the time.
15
Q.
What was his position?
16
A.
Supervisor of animal training at Shamu
17
Stadium.
18
Q.
19
What were you actually doing when the whale
bit down on your leg?
20
A.
It was in a show.
21
the slide-out.
22
Q.
I was dry with Ikaika at
And, what were you doing when that occurred?
23
I know you said you were at a show, you were on a
24
slide-out.
25
A.
What actually happened?

I was going into a layout -- it was a
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behavior -- the trainer lays out a slide-out and the
whale lays right next to the trainer.
3
4
Q.
When you say a layout, does that mean that
you were lying on your back?
A.
That is the behavior, yes.
Q.
And, so you were lying out on the slide-out
7
8
9
and where was the whale?

A.
layout.
He was in front of me.
I was going into the
And, the way you do that is you turn your body,
10
and you lay down next to the whale, and he did not take
11
my signal to layout.
12
Q.
So he ignored your signal?
13
A.
Yes.
14
Q.
After he bit down and your leg, what
15
16
happened?
A.
I asked him for a mouth open.
He opened his
17
mouth, and I sent him on bows which are jumps just to
18
have him go do something so I could reassess what was
19
going on.
20
Q.
Did you determine what was going on?
21
A.
At that point in time I was -- it surprised
22
me, so I was just trying to get through the segment of
23
the show, but he was a good boy for the rest of the
24
segment.
25
Q.
Did you fill out any sort of incident report
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for Sea World?
A.
Yes, ma'am.
Q.
Who did you provide that incident report to?
A.
Sam Davis and I filled it out together.
Q.
Are you familiar with the process that Sea
World uses when an incident report is completed and then
it's sent around to the various parks?
A.
No, I'm not.
Q.
But you are familiar with reviewing the
10
incident reports?
11
A.
Yes.
12
Q.
And, so in your review of the incident
13
reports, you have actually seen where the other parks
14
might comment on what occurred and what could have been
15
done better?
16
A.
I have not -- no.
17
Q.
I'm going to just show what has been
18
previously marked as C-6.
19
question.
20
any of the incidents.
I just have a general
I'm not going to ask you any details about
21
A.
Okay.
22
Q.
I just want to you to look at -- after you
23
turn to the first tab, look at the first incident
24
report?
25
A.
Just the one on top here?
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Q.
Yes, ma'am.
A.
Okay.
Q.
I know there's a lot of pieces of paper.
Actually, I'm going to tell you a page number to turn
to.
World," and then a number.
There's a number down at the bottom that says, "Sea

Do you see that on the page?
A.
Yes.
Q.
Could you just turn for me to Sea World 244?
A.
(Witness Complies).
10
Q.
And, just for the record, this is an incident
11
Okay.
report, dated March 14, 1990; do you see that?
12
A.
Yes.
13
Q.
I just want you to turn to 246, two more
14
pages after that.
15
A.
(Witness Complies).
Okay.
16
Q.
And, you see that at the top, it says,
17
"Circulation Comments," where all the other parks are
18
listed?
19
A.
Okay.
20
Q.
I guess my question earlier was, you
21
testified that you were familiar with -- or one that you
22
actually read, the incident reports, that you have
23
access to them; is that correct?
24
A.
Yes.
25
Q.
And, my question was, are you familiar with
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seeing comments that the other parks might give to Sea
World of Orlando, Florida, just giving their opinion
about the incident and what occurred?
A.
yes.
us.
7
8
11
We would read the document that they would give to
Q.
And, just so I'm clear, do you remember when
the incident occurred?
9
10
It's possible there were comments on there,
A.
Sometime in late `05 or the first half of
Q.
Do you recall that this incident report that
`06.
12
you said you completed and you said that Sam Davis also
13
completed, it was put in the aggression notebook.
14
that your testimony?
15
A.
I don't remember.
16
Q.
If you would just turn to your statement
17
that's in front of you at Page 4?
18
A.
Yes.
19
Q.
And, actually, you can just start at the
20
Is
bottom of Page 3.
21
A.
Okay.
22
Q.
Do you see that?
I guess at the bottom of
23
Page 3, you're giving an account of what happened with
24
the killer whale, and you said that happened probably
25
four years ago and there was an incident report written
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up to communicate all the details.
2
3
A.
Do you recall that?
I recall helping to write that incident
report, yes.
Q.
And, now, when you turn to Page 4 of the
document, you further mentioned that it was logged onto
the computer and other parks have access to it.
recall telling the compliance officer that?
8
9
10
A.
That's where we wrote the incident
report was on the computer.
It wasn't on paper; it was
on the computer.
11
12
Yes.
Do you
Q.
And, that it was printed out and put into the
aggression notebook.
Is that the next page?
13
A.
Yes.
14
Q.
So that others could read it?
15
A.
Yes.
16
Q.
I know I had you open up to look at the
17
incident reports.
18
World has provided to the Secretary in this case.
19
20
There are incident reports that Sea
Would it surprise you the incident report

involving Ikaika is not in that list?
21
A.
That does surprise me.
22
Q.
Were you ever told if you did anything wrong
23
in what interaction?
24
25
A.
Yes, we reassessed the decisions that I had
made.
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1
2
3
Q.
And, what were you told about the decisions
that you had made on that day?

A.
To make sure that the whale is going into the
layout behavior before I lay down in front of him, and
that I was putting myself in a very vulnerable situation
by doing that.
Q.
Prior to the incident with Ikaika, was there
a specific rule regarding layouts that actually told you
that you had to allow the whale to lay out before you
10
laid out?
11
A.
12
measure.
13
Q.
In general, it was just more of a safety
I guess my question is you're saying that
14
after the incident, Sea World told you that in the
15
future you should allow the whale to do the behavior
16
first before you laid out?
17
A.
Yes.
18
Q.
And, my question to you is, what in your
19
training prior to that incident with Ikaika would have
20
prepared you for that moment?
21
you should have allowed the whale to first layout?
22
A.
How would you have known
Through talking to my coaches, through all
23
the observational learning that we would do as we would
24
watch other trainers work with the other animals as we
25
would ask questions.
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1
2
3
Q.
So, you were basically supposed to figure it
out based on your observations?

A.
There's a lot of behaviors that the animals
do and whether or not we discussed it prior to, I'm sure
we did.
Q.
We discussed everything in great detail.

You're supposed to remember everything that
you discuss about the whales when you're in a particular
interaction?
A.
10
Q.
You testified that you were given verbal
11
instructions about how to interact with the whales,
12
correct?
13
A.
It's not an exact science.
You can't say,
14
"Here's a book, learn it, read it, memorize it."
15
not an exact science.
16
Q.
It's
So, you're not able to predict what the whale
17
is going to do in particular interactions; is that
18
correct?
19
A.
I didn't say that.
20
Q.
I know you didn't.
I guess my question is
21
you never know how a whale is going to react during an
22
interaction?
23
A.
You can predict, yes.
24
Q.
But, you can't predict with certainty; is
25
that correct?
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A.
With certainty?
Q.
With certainty.
A.
I guess you can't predict any behavior with
certainty with any animal, with any human, with
anything.
Q.
But, then, in your experience of working with
killer whales, you can't predict what the killer whale
is going to do next, right?
9
10
11
A.
I believe you can sometimes predict what a
killer whale is going to do, yes.

Q.
When I was asking you about your interaction
12
with Ikaika, you said that it wasn't aggression,
13
correct?
14
A.
I don't believe it was aggression, no.
15
Q.
But it was put in the aggression notebook;
16
You didn't consider it --
isn't that correct?
17
A.
It was written up as an incident.
18
Q.
And, it was put in the aggression notebook?
19
Isn't that what you just read into the record?
20
A.
I don't believe it was aggression.
21
Q.
But, it was placed, at least from your
22
recollection, back March of 2010 when you spoke to the
23
compliance officer, that the incident recorded was put
24
into the aggression notebook?
25
A.
Yes, that's what I put here.
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Q.
I know earlier I had asked you to look at
Exhibit C-1.
Do you have that in front of you?
the standard operating procedures.
That's
A.
Yes.
Q.
And, I would like you to turn to Sea World
976 at the bottom.
A.
Yes.
Q.
And, bullet point says "Emergency Action
Plan"; do you see that?
10
A.
Yes.
11
Q.
And, as a senior animal trainer, you train
12
how to respond to incidents with the killer whales?
13
A.
Yes.
14
Q.
And, on that page it says, "The purpose of
15
this plan is to aid trainers to effectively respond to
16
an injury," correct?
17
A.
Yes.
18
Q.
"Or emergencies in which trainers, guests or
19
nondepartment personnel fall or otherwise enter the
20
water with any animal --
21
A.
Yes.
22
Q.
"-- without authorization."
23
24
25
So, the purpose of the emergency action plan

is to protect trainers from falling into the water?
A.
Yes.
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Q.
Could you turn to 1098 of that same document?
A.
(Witness Complies).
Q.
We talked about this earlier, but this was
Okay.
the actual Tilikum section?
A.
Yes.
Q.
And, this is a whole chapter dedicated to
Tilikum, correct?
A.
Yes.
Q.
And, no other whale at Sea World has their
10
own chapter in the standard operating procedures?
11
A.
Correct.
12
Q.
And, can you turn to Page 1100.
13
A.
(Witness Complies).
14
Q.
This is similar to the -- this is also an
15
emergency plan, but it's an emergency plan specific for
16
Tilikum; is that correct?
17
subheading?
Do you see that at B, the
18
A.
Yes.
19
Q.
It says "emergency action plan, Tilikum
20
involved in rescue procedures"?
21
A.
Yes.
22
Q.
And, again, the purpose states, "The plan is
23
to aid the trainers in emergency situations in which
24
trainers, guests or nondepartment personnel fall or
25
otherwise enter the water with Tilikum"; is that
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correct?
A.
Yes.
Q.
And that's because accidents happen, correct?
A.
Correct.
Q.
And the trainer might fall?
A.
Correct.
Q.
And, the rescue procedures for Tilikum, what
is your understanding of those procedures?
A.
What specifically are you asking?
10
Q.
If a trainer falls into water with Tilikum,
11
what was the procedure?
12
February 24, 2010?
13
A.
What was the procedure on
As it says right here, you alert the alarm.
14
You grab the air, you grab the reel, and your start to
15
moving it along.
16
17
Q.
Do you know if that rescue procedure was
implemented on February
--
18
A.
Yes, it was.
19
Q.
-- on February 24, 2010?
20
A.
Yes, it was.
21
Q.
Were you a part of the rescue effort?
22
A.
Yes.
23
Q.
How did you become involved in the rescue
24
effort?
25
Shamu show?
Sorry.
Did you participate at all in the Dine With
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A.
No.
Q.
But, you had worked the Believe Show earlier?
A.
Yes.
Q.
Where were you when you discovered that there
was some emergency in the Stadium?
A.
I was in the trainer lounge.
Q.
And, how did you know that there was an
emergency?
A.
The alarm went off.
10
Q.
And, what did you do in response to that?
11
A.
I stopped and ran straight to G pool.
12
Q.
And, what did you do?
13
14
15
I guess what actions
did you take as a part of the response?

A.
I grabbed the reel, the net reel, and pulled
it to the side of the pool and pulled the net.
16
Q.
Did Tilikum respond to that procedure?
17
A.
I couldn't see him at the time.
18
Q.
What is the purpose of getting the net out?
19
20
What were you trying to do?

A.
Trying to take the animal into -- to close
21
the area down and take him into the smaller pool
22
adjacent to the pool which is the med pool.
23
Q.
You're trying a minimize the pool?
24
A.
Minimize the area, yes.
25
Q.
Were you able to do that in this instance
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when you put that net out?
A.
Yes.
Q.
So, did Tilikum respond initially?
Were you
able to move him?
A.
We were able to move him.
Q.
How long did it take before Tilikum actually
moved to the other pool?
A.
I really don't have any sense of time.
Q.
I just want to switch gears for just a
10
moment.
I know you testified earlier that you received
11
-- when you first started at Shamu, you received manuals
12
that you needed to read and familiarize yourself with
13
the protocol?
14
A.
Yes.
15
Q.
So, I know you received the Standard
16
Operating Procedures.
Were you also provided a copy or
17
required to read the animal training department manual?
18
A.
Yes.
19
Q.
And, I want to just have you look at what has
20
been marked as R-1.
21
document?
Are you familiar with this
22
A.
Yes, ma'am.
23
Q.
Could you just turn to the first page of that
24
25
document?
A.
(Witness Complies).
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Q.
And, that's just the table of contents; is
that correct?
A.
Yes.
Q.
And, this manual just -- is this just like an
HR manual dealing with calling in sick and vacation
time?
your work with killer whales, does it?
This doesn't provide any procedures related to
A.
Let me take a look at it real quick.
Q.
I know I see a position description, but it
10
lists uniforms, scheduling, sick calls.
11
like an HR manual?
12
A.
13
14
15
Q.
So it looks
Yes.
One second, Your Honor.
If we could just go back to C-1 for the next
16
couple of questions.
17
C-1 for me?
Can you turn to the last page of
I believe it's 1108?
18
A.
Yes.
19
Q.
Are you familiar with this document?
20
A.
Yes.
21
Q.
And, is this the document that you were
22
required to sign to document when you started at Shamu
23
Stadium?
24
A.
Yes.
25
Q.
I just want you to go down to (counting)
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where it says, "I realize," the seventh line?
A.
Yes.
Q.
Can you read that sentence for me, "I
4
5
realize"?
A.
"I realize that there are inherent risks in
performing my job description and agree to
communicate with my supervisor if I become
uncomfortable with or are unable to take the
calculated risk."
10
Q.
So, by signing this document, you were
11
acknowledging that you knew there were risks in working
12
with killer whales?
13
A.
Yes.
14
Q.
Because they're dangerous animals, correct?
15
A.
Yes.
16
17
18
19
20
I don't have anything
else, Your Honor.

JUDGE WELSCH:
Ms. Gunnin, how long is your
Cross-Examination?
MS. GUNNIN:
I don't think it's going to be
21
very long, but if we could take maybe a five-minute
22
break.
23
24
JUDGE WELSCH:
break.
Why don't we take our morning
We stand adjourned until 10:30.
25
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3
4
5
JUDGE WELSCH:
Ms.
Groves, I'll remind you you're still under oath.

---o0o---
CROSS-EXAMINATION
BY MS. GUNNIN:
Q.
Ms. Groves, I'm going to ask a few follow-up
10
questions to Mr. Howard-Fishburne's.
You described your
11
being on Tilikum's team, and you had progressed to being
12
on his tactile team at some point?
13
A.
Yes.
14
Q.
When would that have been?
15
A.
I don't know for sure.
16
Q.
Would it have been -- obviously, on
17
February 24th you were on his tactile team?
18
A.
Yes.
19
Q.
Do you recall -- I think you said you were on
20
his nontactile in 2008?
21
A.
Yes.
22
Q.
Can you recall in that time frame when that
23
24
25
might have occurred; the change to tactile?

A.
It was probably sometime in 2009, I would
think.
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JUDGE WELSCH:
Before we begin, Ms.
Howard-Fishburne, are you going to offer Exhibit C-11,
the Rules of Thumb?
JUDGE WELSCH:
Any objections?
MS. GUNNIN:
No objection.
JUDGE WELSCH:
8
9
Correct, Your Honor.
objection.
10
11
JUDGE WELSCH:
12
13
14
15
16
you're offering were photographs of C-10?

offer them.
Yes, Your Honor, we would
I'm sorry.
JUDGE WELSCH:
Ms. Gunnin, do you have any
objections to C-10, the photographs of that bridge area?
17
MS. GUNNIN:
18
JUDGE WELSCH:
19
I'm assuming the photographs that
No objection.
No objection?
C-10 is admitted
without objection.
20
21
marked, were admitted into evidence)
22
(Whereupon, Respondent's Exhibit R-4, was marked
23
24
BY MS. GUNNIN:
25
Q.
Ms. Groves, I've shown you an exhibit that's
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1
2
been marked R-4, and I'm going to ask if you can -JUDGE WELSCH:
Before you begin, let me see
that for a minute, please.
BY MS. GUNNIN:
Q.
Can you identify what Exhibit R-4 is?
A.
These are pictures of me and Tilikum at
7
8
9
slide-out.
MS. GUNNIN:
Do you want to take a break?
can take a break if you need to?
10
THE WITNESS:
11
BY MS. GUNNIN:
12
Q.
13
14
15
16
17
We
I'll let you know.
(Pause).
And, Ms. Groves, do you have any recollection
of when those photographs might have been taken?

A.
Definitely before February 24th, but probably
that fall before.

Q.
In those photographs, were you standing in a
correct position to be next to Tilikum?
18
A.
Yes.
19
Q.
And, what kind of safety precautions were you
20
taking to stand next to Tilikum when these photographs
21
were taken?
22
A.
We always had to be in front of his pec, his
23
pectoral flipper.
You could never stand behind because
24
you may get swept with that.
25
behind that pectoral flipper.
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You had to be in a
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position that you could step away from him quickly.
That's all I can think of right now.
3
4
Q.
And, do you remember what pool you would have
been next to when you were --
A.
G pool.
Q.
We can take those away.
MS. GUNNIN:
8
9
10
Judge, we would move for admission
of Exhibit R-4.
JUDGE WELSCH:
Any objections?
11
Honor.
12
they were produced to us.
13
JUDGE WELSCH:
14
These were produced.
We don't object, Your

They weren't listed, but
objection.
15
16
marked, were admitted into evidence)
17
BY MS. GUNNIN:
18
Q.
19
Ms. Groves, you were asked about carrying a
bucket?
20
A.
Yes.
21
Q.
And, did you receive any kind of training to
22
23
carry buckets around Shamu Stadium?

A.
There's really not much to it other than
24
carrying buckets, but when you're around Tili's pool,
25
yes, you're always extra careful with where you're
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walking with what you have in your hand.
careful with any of those things.
You're always
JUDGE WELSCH:
Which pools did you say?
THE WITNESS:
Tili's pool, any pool that he
would have access to.
BY MS. GUNNIN:
Q.
And, walking up and down the bridge with the
bucket, any special way you would carry the bucket to
ensure safety?
10
11
12
13
A.
Just one bucket in each hand or we can carry
them like this as well (demonstrating).

JUDGE WELSCH:
record, please?
Can you describe that for the
In your shoulder or over your arm?
14
THE WITNESS:
Yes, over your arm.
15
BY MS. GUNNIN:
16
Q.
And, did you practice carrying the buckets
17
before you started carrying the buckets around the
18
pools?
Or, let me ask you this.
19
20
21
Did you have prior experience carrying

buckets when you started with another
A.
I did.
--
I had experience in other stadiums
22
and whatnot.
So, I had been in the animal training
23
field for over a year before I -- I'm sorry, for about
24
six months before I initially was at Shamu, but before
25
this last period that I was at Shamu, I was in other
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areas for four years.
2
3
Q.
So, at Sea Lion and Otter Stadium, you would
carry buckets as well?
A.
Yes.
Q.
Are they similar buckets?
A.
Yes.
Q.
In your training -- Ms. Howard-Fishburne
asked you about all the information that you had to
learn to work at Shamu Stadium.
Was that difficult for
10
you to remember when you were working with the killer
11
whales?
12
13
A.
The training that I had learned to work with
-- no.
14
Q.
With regard to the incident with the whale
15
that you mentioned, do you know where he went?
16
moved anywhere from Sea World?
Was he
17
A.
Yes, he was moved from Marine Land Canada.
18
Q.
Do you recall when he was moved from Marine
20
A.
It was probably in `06.
21
Q.
And, Marine Land, is that part of the Sea
19
22
Land?
World Parks?
23
A.
24
MS. GUNNIN:
25
No, it is not.
That's all the questions I have,
Your Honor.
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JUDGE WELSCH:
Ms. Groves, tell me a little bit
about -- I understand prior to coming to Sea World, you
worked with Walt Disney?
THE WITNESS:
Yes.
JUDGE WELSCH:
Tell me a little bit about your
background before Walt Disney.
7
8
THE WITNESS:
JUDGE WELSCH:
And, you went to Walt Disney
right out of school?
11
12
I have a premed
degree in biology and chemistry from Michigan.
9
10
I was in school.
THE WITNESS:
Yes, I got an internship from
Walt Disney, and I was there for six months.
13
JUDGE WELSCH:
In what area?
14
THE WITNESS:
The Living Sea working with
15
dolphins and manatees.
16
17
JUDGE WELSCH:
You worked there for six months
on an internship?
18
THE WITNESS:
Yes.
19
JUDGE WELSCH:
Paid?
20
THE WITNESS:
Yes.
21
JUDGE WELSCH:
And, then you went to Sea World?
22
THE WITNESS:
Yes.
23
JUDGE WELSCH:
And, when you started at Sea
24
World, what was your position?
25
as?
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What did you start out
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THE WITNESS:
Apprentice animal trainer.
JUDGE WELSCH:
That was in the whales and
3
4
5
6
7
dolphins?
THE WITNESS:
I initially started at Shamu for
about two weeks.

JUDGE WELSCH:
But, I understood you spent more
time with the --
THE WITNESS:
Dolphins.
JUDGE WELSCH:
-- whales and dolphins?
10
THE WITNESS:
Yes.
11
JUDGE WELSCH:
Is that where you worked as an
12
apprentice?
13
THE WITNESS:
Yes.
14
JUDGE WELSCH:
When you went to the Sea Lion
15
16
area in 2002, what was your position at that time?

THE WITNESS:
I was there for maybe a couple of
17
weeks as an apprentice trainer, and then I was promoted
18
to associate level trainer.
19
20
JUDGE WELSCH:
And when you went to Shamu
Stadium, what did you start out as at Shamu Stadium?
21
THE WITNESS:
Senior.
22
JUDGE WELSCH:
So, it was a promotion when you
23
went from the Sea Lion and Otter area to the Shamu
24
Stadium?
25
THE WITNESS:
No, when I was at Sea Lion and
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Otter, I was promoted to associate level, and then I was
promoted to trainer level, and then I was promoted to
senior level.
So, I was a senior level at Sea Lion and Otter
Stadium, and then I was transferred to Shamu Stadium and
my level went with me.
7
8
JUDGE WELSCH:
And, you worked at Shamu Stadium
as a senior trainer until about two weeks ago?
THE WITNESS:
Yes.
10
JUDGE WELSCH:
A couple of weeks ago?
11
THE WITNESS:
Yes, and then I was promoted
12
again to what's called a Senior 1.
13
senior position.
14
15
JUDGE WELSCH:
When you went back to the Otters
and Sea Lions?
16
17
It's an upper level
THE WITNESS:
No, I've been in the Senior 1
level position for probably two years.
18
JUDGE WELSCH:
And, when you referred to the
19
incident as the reason why you moved to the Sea Lion and
20
Otter, are you referring to the incident of last year in
21
2010?
22
THE WITNESS:
Yes.
23
JUDGE WELSCH:
After that incident, did you
24
remain on Tilikum's team?
25
THE WITNESS:
Yes, I did.
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JUDGE WELSCH:
Still on the tactile team?
THE WITNESS:
Yes.
JUDGE WELSCH:
My understanding or I guess my
impression is Tilikum has two types of teams, either the
nontactile team or the tactile team; is that correct?
6
7
8
9
10
11
THE WITNESS:
He did before the incident,
correct.
JUDGE WELSCH:
That's right, there were changes
made after the incident with Tilikum.
There was no
longer really a tactile them then, was there?

THE WITNESS:
Not really.
We only do tactile
12
interactions with him when it's under a husbandry
13
procedure, so it's very specific and where he is, where
14
he's positioned, everything is very specific.
15
to give him medical treatment.
16
17
18
JUDGE WELSCH:
And, so you really became more of
a nontactile when you dealt with the Tilikum's team?

THE WITNESS:
He really only has one team now,
19
a small team.
20
it was before where we could touch him.
21
It's only
We work with him.
JUDGE WELSCH:
It's not the same as
Well, even before and I guess
22
since the incident, when you were on Tilikum's team,
23
that doesn't mean that was the only whale you dealt
24
with, killer whale you dealt with.
25
responsible for other whales?
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You also were
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THE WITNESS:
Correct.
JUDGE WELSCH:
Were you designated certain
whales that you would be working with on their team, or
are you able to work with all the whales?
understanding is there are seven whales, including
Tilikum?
My
THE WITNESS:
Correct.
JUDGE WELSCH:
Were you able to work with all
9
10
the whales or are you just designated certain whales

other than Tilikum?
11
THE WITNESS:
Both.
12
When you come into Shamu Stadium, you are put onto
13
one whale's team, you get to know that whale, and then
14
as you progress and being there, as you move forward,
15
you get another whale on your team and another whale on
16
your team.
17
whales, but not all the trainers and that changes all
18
the time.
19
So, some of the trainers work with all the
JUDGE WELSCH:
What about you, prior to the
20
incident last year, February?
21
the whales?
Were you working with all
22
THE WITNESS:
Yes.
23
JUDGE WELSCH:
Now, tell me a little bit about
24
25
the Tili Talk.
THE WITNESS:
Anybody that would come into the
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Stadium, I gave the Tili Talk to a lot of the interns
that we had coming in to the Stadium.
JUDGE WELSCH:
How long does that take?
THE WITNESS:
Five minutes, ten minutes.
JUDGE WELSCH:
Is there like that section of the
SOP?
gave the Tili Talk, what did you do?
8
9
10
Do you go over that or what do you do?
THE WITNESS:
When you
I would tell them of Tilikum's
history and how important it is to stay a safe distance

away from his pool at all times.
11
JUDGE WELSCH:
Anything else?
12
THE WITNESS:
I would answer any questions that
13
they might have.
14
the student interns, the college interns.
15
the information that I would give them.
16
I personally dealt with the interns,

So, that was
I would answer any questions that they might have,
17
tell them of his history and let -- I would let them
18
know that -- I would use myself as an example because I
19
was at Sea World for probably seven years before I could
20
even open a Tilikum gate.
21
we were.
22
JUDGE WELSCH:
So, that's how precautionary
So, you only gave the Tili Talk
23
to the college interns?
24
THE WITNESS:
Yes, pretty much.
25
JUDGE WELSCH:
And, by that, I'm assuming these
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are students in college coming to work for the summer or
on an internship?
3
4
5
6
7
8
9
THE WITNESS:
Yes, and they were allowed around
his pools only at a very far distance.

JUDGE WELSCH:
But, you were never involved with
the Tili Talks for other trainers that were coming in?
THE WITNESS:
Typically, management would give
that talk.
JUDGE WELSCH:
So, you don't know how long those
10
Tili Talks went regarding other trainers that were
11
coming in?
12
13
THE WITNESS:
Yes, anywhere from five to ten
minutes, I would say.
14
JUDGE WELSCH:
Okay.
15
THE WITNESS:
But, again, each trainer that
16
came into the area did have to read the manual and any
17
other documents that we had on Tilikum.
18
JUDGE WELSCH:
Can you tell me, other than
19
reading the SOP's that you talked about, other than
20
reading the incident reports and maybe some of the
21
animal history records, could you describe for me what
22
other kinds of training you had that prepared you to
23
work with the killer whales, other than Tilikum?
24
start with that.
25
you had?
Let's
Can you just kind of go through what
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THE WITNESS:
There's a lot of watching the
other trainers working with the whales, asking
questions, we would have group discussions.
4
5
6
JUDGE WELSCH:
What are you watching for, and
what kinds of questions would you be asking?

THE WITNESS:
Really, just watching how they
work with the whale, learning the different behaviors
that they know, learning every whale specifically
because they all are so different.
10
They're just like every person is different, every
11
whale is different too, so you learn the things that
12
they like, you learn about their relationship with the
13
other trainers.
14
JUDGE WELSCH:
And, was your training any
15
different when you went to work on the nontactile team
16
for Tilikum, or you went to the same kind of training?
17
THE WITNESS:
Yes, I mean, the training was
18
just everything you needed to know to do that job.
19
was like having a different added job when you're in the
20
Stadium.
21
JUDGE WELSCH:
Let me ask this.
It
Since you've
22
been in the other two areas, the sea lions and the
23
whales and dolphins, was the training you received for
24
the Sea Lion Stadium and the training you received for
25
the Whales and Dolphin Stadium the same type of training
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2
3
4
you received when you went to the Shamu Stadium?

THE WITNESS:
Yes, it's all pretty much the
same type of training.

JUDGE WELSCH:
Was there any concern in terms of
dealing with killer whales versus dealing with the
dolphins or the other whales or sea lions and otters?
THE WITNESS:
It would take longer with the
killer whales to be able to interact directly with them.
It wouldn't take as long when you worked with the
10
dolphins or the sea lions or the otters.
11
take as long to be able to directly interact with those
12
animals.
13
directly interact with those animals.
14
It wouldn't
It would just take a lot longer to be able to
JUDGE WELSCH:
Did you have any more sense of
15
concern for your own safety in dealing with the killer
16
whales versus the sea lions and otters, the other
17
whales, dolphins, or did you treat all wild animals as
18
wild animals?
19
THE WITNESS:
No, the killer whales were
20
definitely a step up, especially for me going in, I
21
didn't -- I hadn't worked with killer whales before when
22
I first went in there.
23
while until I was comfortable.
24
25
JUDGE WELSCH:
So, it took me personally a
I know this is going to be hard,
but can you describe how did you go about trying to get
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yourself comfortable in working with --
THE WITNESS:
I worked really closely with the
trainers that had been there for a really long time.
They would take me with them, and they would show me how
you do things, and the whales respond differently to
different people, and so I would just really go with
them and watch them.
And, I did this for -- when I got there as a
senior trainer, I think it was probably a year before I
10
actually got in the water with a whale.
So, I would say
11
every moment that I could, I would go with that trainer,
12
and it would typically be a senior trainer like Liz
13
Thomas or Dawn or Jenny.
14
I would go with them, and I would watch them and
15
watch everything they were doing, and they would point
16
out certain specific things that would happen during
17
that session, and then we would always have a discussion
18
after the session as to what happened.
19
was a learning tool and a learning opportunity.
20
JUDGE WELSCH:
And, everything
You used the term "coach" when
21
you were talking about working with these other senior
22
trainers.
23
something different?
24
25
Is that the same thing as a coach, or is that
THE WITNESS:
Same kind of thing as a coach,
yes.
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JUDGE WELSCH:
Sea World?
directly?
Is there a distinction made at
Are you assigned a coach to work with
THE WITNESS:
Yes.
JUDGE WELSCH:
So, during the time, let's say,
around February of last year, who was your specific
coach?
8
9
10
11
12
THE WITNESS:
Well, I've been a coach.
Since
I've been a Senior 1, I have been a coach to others.

JUDGE WELSCH:
coach?
As a Senior 1, you don't have a
Is that what you're saying?
THE WITNESS:
The management is basically -- I
13
have a direct manager that coaches us.
14
anything that we need to bring, we just take it to
15
management, but there is that ladder of levels.
16
17
18
19
20
JUDGE WELSCH:
If we have
In the incident you had with
Ikaika, had you worked with Ikaika before that incident?

THE WITNESS:
I had worked with him several
months before that incident.

JUDGE WELSCH:
Had you performed the same kind
21
of behavior that you were trying to do at the time that
22
he grabbed ahold of your leg?
23
THE WITNESS:
Yes, before we did anything in
24
the show, we would always practice outside the show and
25
do run-throughs or whatnot.
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JUDGE WELSCH:
So, how many times with Ikaika
would you say that you had worked with him in performing
that same behavior prior to the time when you had this
incident in late 2005, early 2006?
THE WITNESS:
Several.
It's really hard to say
how many times I would have performed that specific
behavior.
the segment, is what it's called, Far Greater.
it wasn't my first Far Greater with him.
10
11
I know that wasn't my first.
Far Greater is
I know
I had done
several, and that's a typical behavior for Far Greater.

JUDGE WELSCH:
And, I'm assuming prior to this
12
show when Ikaika grabbed ahold of your leg, he had not
13
exhibited that behavior before?
14
THE WITNESS:
Never.
15
JUDGE WELSCH:
Did you have any clue at the time
16
the incident happened as to whether or not there was
17
going to be -- was he acting properly in accordance with
18
what you were taught before that incident occurred?
19
THE WITNESS:
Yes, everything he was doing he
20
was -- he was good.
21
JUDGE WELSCH:
So, when you and Mr. Davis --
22
THE WITNESS:
Yes.
23
JUDGE WELSCH:
-- went over to prepare the
24
incident report, am I to take away from it that it's
25
your view or Mr. Davis' view it was your fault that the
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1
2
whale -THE WITNESS:
I would say I put myself in a
vulnerable position by not allowing him to go into the
layout before me.
JUDGE WELSCH:
But, you don't know whether or
not even if he had done it correctly, the incident still
would have happened?
other; is that right?
9
10
11
You don't know one way or the
THE WITNESS:
Right.
JUDGE WELSCH:
You had no clue if the whale
was --
12
THE WITNESS:
No, he was fine.
13
JUDGE WELSCH:
And, you said he was moved to
14
Marine Land Canada?
15
THE WITNESS:
Yes.
16
JUDGE WELSCH:
Do you have any knowledge as to
17
whether or not that was the result of the incident or
18
was that the result of something else?
19
THE WITNESS:
No, I would be surprised if I was
20
told it was the result of the incident.
21
surprised.
22
23
24
25
JUDGE WELSCH:
I would be
So, you don't really know why the
whale was moved to Marine Land?

THE WITNESS:
above me.
I don't know.
The moves happen
With Ikaika, he was three years old -- I
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think he was about three -- which is a young whale, and
I think he was exploring.
what he could do.
aggressive behavior, but it was an incident, so we wrote
it up so we could communicate it.
6
7
8
9
10
I think he was testing to see
That's why I say I don't think it was
But, I think personally, it's just my opinion, I

think he was exploring me.
JUDGE WELSCH:
Had there been any other
incidents with Ikaika prior to that time that you're

aware of?
11
THE WITNESS:
Not that I'm aware of.
12
JUDGE WELSCH:
How much later after the incident
13
was Ikaika moved to Marine Land, do you have any idea,
14
from the date of the incident?
15
16
17
THE WITNESS:
I would say within a year, but I
don't think these two things are connected.

JUDGE WELSCH:
Okay.
I've been meaning to ask
18
this question because I need to have an understanding.
19
In terms of the whale, I know I have the weight and I
20
think somebody yesterday talked about it, they're about
21
eight feet wide, I guess, or tall, however you want to
22
describe it, how long do whales run?
23
it looks different.
24
some understanding.
25
THE WITNESS:
I saw a video and
I just want to make sure I have
How long?
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1
2
JUDGE WELSCH:
And, the buckets that you were
carrying with fish, how much would you say they weigh?
THE WITNESS:
30 pounds.
JUDGE WELSCH:
Each bucket?
THE WITNESS:
They're different, but if the
6
7
8
9
bucket was full, it would weigh about 30 pounds.

JUDGE WELSCH:
You're kind of a small person.
Could you carry two of those buckets?

THE WITNESS:
Yes.
10
JUDGE WELSCH:
I'm not sure I could.
11
That's all the questions I have.
12
Howard-Fishburne, do you have any Redirect?
13
14
have a couple of questions.
15
JUDGE WELSCH:
Ms.
Yes, Your Honor, I just
Let me just ask before you start,
16
I don't want to dredge up any bad news or anything, but
17
the photographs that you looked at that Ms. Gunnin
18
showed you, for the record, you were very emotional
19
about seeing the photographs, yourself and Tilikum, and
20
I don't mean to pry --
21
THE WITNESS:
That's okay.
22
JUDGE WELSCH:
I'm just trying to get some sense
23
-- what about the photographs really bothered you?
24
there some way you can explain that?
25
be insensitive.
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THE WITNESS:
I can't help but get emotional.
JUDGE WELSCH:
Is it just seeing Tilikum in the
3
4
photograph?
THE WITNESS:
Well, for number one, that's
where I was when the incident occurred.
place; that's what it looked like.
That's the
JUDGE WELSCH:
With Ms. Brancheau?
THE WITNESS:
Yes.
9
10
So, you know, it just
brings, I don't know, emotion for that.

JUDGE WELSCH:
That's fine.
11
to know.
12
wanted to get some understanding.
13
14
That's all I need
I don't need to know anything else.
I'm sorry, I apologize.
I just
Do you need to take a
break?
15
THE WITNESS:
I'm good, thank you.
16
JUDGE WELSCH:
17
---o0o---
18
19
BY HOWARD-FISHBURNE:
20
Q.
You mentioned in response to some of the
21
Court's questions that as part of your training, you
22
would learn about relationships with the whales.
23
do you mean by that?
24
25
A.
Well, you get to know each whale
individually and you definitely build --
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730
1
2
JUDGE WELSCH:
Let's take a five-minute break.
We stand adjourned until 11:00.
JUDGE WELSCH:
Ms. Groves, I'll remind you you're still under
7
8
9
oath.
I just have a few
questions, Ms. Groves.
10
THE WITNESS:
Okay.
11
12
Q.
Earlier we talked about incident reports, and
13
an incident report notebook that Sea World keeps at
14
Shamu Stadium.
15
notebook at Sea Lion and Otter?
Do you also keep an incident report
16
A.
I don't know.
17
Q.
Prior to working for Shamu Stadium, you
18
worked at Sea Lion and Otter for how long?
19
A.
Three years.
20
Q.
And, do you recall during the time you worked
21
at Sea Lion and Otter what types of injuries, if any,
22
trainers may have sustained while working there?
23
A.
I worked with the otters and you could get
24
bitten by an otter.
25
JUDGE WELSCH:
I guess what she's asking,
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though, is, did it happen?
THE WITNESS:
Yes.
JUDGE WELSCH:
Were there incidents where otters
bit the trainers?
THE WITNESS:
Yes.
JUDGE WELSCH:
Were you bitten?
THE WITNESS:
Yes.
JUDGE WELSCH:
More than once?
THE WITNESS:
Yes, probably two or three
10
times.
11
12
Q.
Did you have to complete an incident report?
13
A.
We completed a report through first aid.
14
Q.
Through first aid?
15
A.
Yes.
16
Q.
But, there was no detailed incident report
17
similar to the Shamu Stadium?
18
A.
Not that I recall.
19
Q.
But, there were no serious injuries at Sea
20
Lion and Otter like a death or anything?
21
A.
22
JUDGE WELSCH:
23
Not a death.
Does that mean there were serious
injuries?
24
THE WITNESS:
Not while I've been there, no.
25
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Q.
And, the incident reports were kept for the
Shamu Stadium because of the serious injuries that were
sustained by employees; isn't that correct?
A.
I would assume so.
Q.
Because the purpose of the incident reports
are for you to be able to learn from those incidents?
A.
Correct.
Q.
We talked about the incident report that you
recall completing related to the incident with Ikaika?
10
A.
Yes.
11
Q.
And, I guess that happened back around 2006?
12
A.
Yes.
13
Q.
And, the whale has since been transferred or
14
sold to Marine Land?
15
A.
Correct.
16
Q.
But, Sea World doesn't throw away incident
17
reports when a whale leaves; do you know?
18
A.
19
20
I don't know.
I don't have any other
questions, Your Honor.
21
JUDGE WELSCH:
Ms. Gunnin, do you have any?
22
MS. GUNNIN:
No, Your Honor.
23
JUDGE WELSCH:
Is Ms. Groves excused as a
24
25
witness, Ms. Gunnin?

MS. GUNNIN:
Yes, Your Honor.
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JUDGE WELSCH:
Yes, Your Honor.
You're excused at this time
subject to being called back.
to discuss you testimony with other persons who may be
called later as witnesses in this case.
THE WITNESS:
7
8
9
10
I would instruct you not
Thank you.
(Witness Excused)
JUDGE WELSCH:
wish to call their next witness?

MR. BLACK:
The next witness, as we had
11
discussed previously, I guess the Respondent is going to
12
call a witness as part of their case in our case for
13
scheduling purposes.
14
15
16
17
MS. GUNNIN:
Mr. Rippy.
Judge, they're not going to call
So, I'm going to let Mr. Rippy go.
JUDGE WELSCH:
On the record, Mr. Rippy has
been excused as a witness?
18
MR. BLACK:
19
JUDGE WELSCH:
He has, Your Honor.

For the record, then, we're
20
going to take a break from the Secretary's case to
21
accommodate a witness who has come in from Virginia, and
22
this will be part of Sea World's case as Sea World's
23
witness.
24
MS. GUNNIN:
25
JUDGE WELSCH:
Yes, Your Honor.

With that understanding, no
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objections from the Secretary?
MR. BLACK:
JUDGE WELSCH:
4
5

Ms. Gunnin, do you wish to call
Sea World's witness?

MS. GUNNIN:
Yes, Your Honor.
---o0o---
JOHN J. TOPOLESKI,
10
JUDGE WELSCH:
Please be seated, sir.
11
Sir, for the record, would you state your full
12
name, spell your last name, and state your address for
13
the record?
14
THE WITNESS:
John Joseph Topoleski,
15
T-o-p-o-l-e-s-k-i.
16
Road, Fredericksburg, Virginia 22405.
My address is 71 Chatham Heights
17
JUDGE WELSCH:
18
MS. GUNNIN:
Your witness, Ms. Gunnin.

19
---o0o---
20
DIRECT EXAMINATION
21
BY MS. GUNNIN:
22
Q.
Mr. Topoleski, by whom are you employed?
23
A.
I'm employed by the Federal Bureau of
24
Investigation.
25
Q.
What do you do for the Federal Bureau of
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Investigation?
A.
I train the canine operation specialists.
Q.
How long have you been in that position?
A.
Approximately one month.
Q.
Where did you work prior to working for the
Federal Bureau of Investigation?
7
8
A.
approximately seven and a half years.
9
10
I worked at Sea World Orlando for
Q.
And, in your career at Sea World of Orlando,
where did you work at the Sea World Orlando Park?
11
A.
I worked in the animal training department in
12
one of four areas.
13
areas.
14
Q.
I worked in three total of the four
If you could tell the Judge, what was the
15
last area that you were working prior to leaving Sea
16
World?
17
A.
Sea Lion and Otter Stadium.
18
Q.
Prior to that, where did you work?
19
A.
Shamu Stadium.
20
Q.
And, did you work in another area of the
22
A.
Special Events.
23
Q.
And, what would have been the first area that
21
24
25
park?
you worked in at the Sea World Park in Orlando?

A.
The first thing I worked at was Special
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Events.
Right now, it's called Animal Ambassadors.
This was a special events thing.
taking animal throughout the park, interactions,
teaching guests about the animals, their habitat, their
natural environments, and the training process of Sea
World.
We were charged with
We were also charged with doing a
cross-country to other events perhaps or maybe schools
to help with education and conservation awareness of our
10
animals.
11
Q.
12
In that role, are you taking animals around
the country with you?
13
A.
Correct.
14
Q.
How did you acquire the ability to do that
15
16
job, the Animal Ambassador job?

A.
All the trainers are put through a swim test,
17
a physical fitness test to see if they're able because
18
we're all trainers.
19
trainers, we are whale and dolphin trainers, we're
20
killer whale trainers, we're all subject to be moved to
21
any other stadium, so we all have to have the same
22
physical requirements.
23
and an interview, I was selected to work at that
24
specific area of the park.
25
Q.
We're not just animal ambassador
So, after completing a swim test
Maybe if you could start with when you the
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first worked at Sea World.
If you could talk to the Judge about the training you
received.
A.
What did you do initially?
In my area, Special Events, we would learn
about the opening procedures of our specific area, we
would learn about the animals that we would work with on
the day-to-day basis.
birds of pray, small exotic animals.
about them, their food, their diet, the fundamentals of
Specifically, there was a lot of

So, we would learn
10
training with these specific animals, what their role is
11
in the park, what our role is as well, working with the
12
animals.
13
Q.
14
And, when you went to Shamu Stadium, did you
receive any additional training?
15
A.
16
correct, yes.
17
Q.
18
19
With regard to killer whales specifically,
And, if you could explain to the Judge how
did that training occur?

A.
Perhaps maybe the first week or so we would
20
have opening shifts which would basically show us how
21
to start up the day, prepare the day, the diets for the
22
whales, how we run the day, the safety equipment, how we
23
checked that every morning, getting the opening
24
procedures basically, briefing other personnel coming in
25
throughout the day, just learning the basic day-to-day
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operations of how the park or the Shamu Stadium operates
throughout the day.
Q.
Were you assigned a coach?
A.
Yes.
Q.
Do you recall who your coach was?
A.
Yes, I was assigned two coaches, Daniel
Richardville and Shana Groves and I had an assistant
coach, Michelle Schumaker.
9
10
Q.
And, I'm going to ask you to look at some
exhibits that are up here, C-1, R-1 and R-2.
11
Mr. Topoleski, I've just shown you what are
12
marked as C-1, R-1 and R-2, and I'm going to ask if
13
you've seen those documents before?
14
A.
Yes.
15
Q.
What are those?
16
A.
C-1 would be the animal training SOP,
17
standard operating procedure; R-2 is the Shamu Stadium
18
area manual; and R-1 would be the animal training
19
department manual.
20
21
Q.
And, are those documents that you would read
when you were at the Shamu Stadium?
22
A.
Correct.
23
Q.
How often would you be required to read
24
25
those?
A.
We initially had a checklist just to make
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sure that we read these documents, and we would go over
them with our coaches and whatnot, and they would also
be available for us to reference whenever we needed to
when we had a question that perhaps couldn't be answered
by another person in the area or more specific detailed
information would be in here readily available for us to
reference.
8
9
10
11
12
Q.
Prior to working with the killer whales, were
you required to read those?

A.
Not the Shamu Stadium area manual.
We did
have animal training SOP's in the department manual.

Q.
And, prior to working with the killer whales,
13
what was the process for you to learn how to work with a
14
killer whales?
15
A.
Prior to working with killer whales?
16
Q.
Right.
17
A.
Well, you were very limited on your
18
interactions; what you could do.
19
would be supervised by management or your coaches and
20
dictated by them, given your proficiency level, what you
21
could do at that time.
22
I would say that you
I moved into the area as a senior trainer, so
23
I may have had a little more opportunity to interact
24
with the whales, of course, under the supervision of my
25
coaches or management.
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So, basically, it could be starting off
working distally with the animal, getting to know the
animal, its likes, maybe its dislikes, its history,
reinforcing the animal behind the barrier maybe five
feet away, all, again, under close supervision.
6
7
Q.
Do you recall how long it was before you were
able to work closer with the killer whale?
A.
I can't give an approximate time.
Q.
What whales were you able to work with?
10
A.
My first whale working with was Kalina and
11
Katina but mainly it was Kalina.
12
Q.
13
animals?
14
A.
No.
15
Q.
So, you never did water work with any of the
16
killer whales?
17
A.
No.
18
Q.
What about Tilikum?
20
A.
I was on the nontactile team.
21
Q.
What does that mean to be on his nontactile
A.
The nontactile team means you would not do
19
22
23
Were you approved to do water work with these
Were you on Tilikum's
team?
team?
24
any hand tactile with him at all; what we call spotting.
25
You could watch an approved tactile team member.
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could work along with them, assist them if they needed
anything with interactions, but as far as being
hands-on, we were not permitted.
Q.
Tilikum?
A.
Yes.
Q.
On February 24, 2010, were you acting as the
And, were you an approved spotter for
announcer for the Dine With Shamu show?
A.
Yes.
10
Q.
And, we've actually seen a video in this
11
proceeding.
12
announced yourself as being who you are, so we've seen
13
that.
14
15
16
I know you haven't seen that, but you
Where were you standing in relation to where

Ms. Brancheau was standing?
A.
I was standing in our designated spotting
17
position.
18
has underwater tone buttons which can signal to the
19
whale underwater to ask it to do a certain behavior.
20
Usually, the person in control of the whale will ask for
21
those cues or those tones, so I was over by there.
22
We were around a tone box which is a box that
I was also by the emergency alarms so I was
23
just really in a static position so in case anybody
24
needed anything, I could communicate with them.
25
Q.
Is that the job of a spotter?
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A.
Correct.
Q.
What other things were you doing as the
spotter?
A.
Listening to the trainer if they needed
anything, observing the environment, in that case the
Dine With Shamu environment.
nearby vicinity of the pool, so making sure of the safe
environment of the whale or the trainer, making sure
nothing is thrown in the pool perhaps, letting them know
There were guests in the
10
or let the trainer know if anything does fall in the
11
pool, another set of eyes to make sure that, you know,
12
the trainer is safe or the environment is safe for the
13
animal that's working.
14
15
Q.
Was there another trainer working with
yourself and Ms. Brancheau on that day?
16
A.
Linne Schaber.
17
Q.
There were times when Ms. Brancheau went to
18
the other side of the Dine With Shamu pool.
19
spotting her when she was on the other side of the pool?
20
A.
I was an extra set of eyes.
Were you
At that point,
21
Ms. Schaber would be another approved spotter that was
22
with her and required to be with her walking around the
23
pool.
24
25
I was doing two duties.
One was being a host
for the Dine With Shamu show and also operating the tone
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and monitoring Dawn's and Linne's and, of course, the
guests in the environment making sure that everything
was as safe as it possibly could be.
Q.
On the tape that we saw, you gave an
announcement that, "this is the end of the show," and
then Ms. Brancheau continued on.
If you can just describe for the Judge what
does that mean when you're telling them it's the end of
the show?
10
A.
What does what mean to you?

It basically means we give a goodbye greeting
11
to the guests, and let them know that this concludes our
12
Dine With Shamu experience.
13
At that point the stage manager on the other
14
side that's in charge of the dining and the guest area
15
will inform the guests that this is the end of our
16
interaction, please head out towards one of our exits;
17
this concludes our show.
18
At that point the guests would generally get
19
up, gather their belongings and make their way to one of
20
the exits and leave the dining area so the staff can
21
clean the area.
22
And, normally, after that -- on that given
23
day, we would have the underwater picture at the glass.
24
And, one of our trainers would go down there and stand
25
by with the whale for a picture with one of the guests.
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JUDGE WELSCH:
That was a different experience
than the Dine With Shamu?
THE WITNESS:
Yes.
JUDGE WELSCH:
Would it be the same guests that
5
6
were at the Dine With Shamu or not necessarily?

THE WITNESS:
It could be some that the guests
may be attending the Dine With Shamu experience, and
certain guests may have scheduled it to take a picture
with the whale afterwards there at the underwater
10
viewing area.
11
BY MS. GUNNIN:
12
Q.
After the show had concluded, the interaction
13
that Ms. Brancheau was having with Tilikum, was that
14
part of the show?
15
A.
No.
16
Q.
And, were you watching her interaction that
17
she was having with Tilikum?
18
A.
Yes.
19
Q.
And, if you could describe for the Judge that
20
21
interaction?
A.
It was something that I would call a
22
relationship session.
It was the face-to-face, one-on-
23
one time, not really asking the whale for anything at
24
all, just bonding time, something that we do a lot of
25
with our animals; just something to get them near the
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whale and just interact with it, and not asking for too
much.
I remember she said she was really proud of
the interaction that we did; nothing really out of the
ordinary.
6
7
Q.
entering the pool?
8
9
And, what occurred immediately prior to her
A.
One behavior that she was doing was called a
layout mimic which basically meant she would lay on her
10
back, and the whale was trained to do that as well.
11
the whale did lay out on his back and she held on to the
12
whale's flipper.
13
So,
She had done that countless times in shows
14
before, not with the Tilikum but at the edge of the pool
15
she interacted with other whales.
16
that or right when that happened, I saw her get up to
17
her knees and put her hands on her pony tail.
18
And, right before
And, when I saw that she couldn't break free,
19
I immediately got up and hit the alarm, and at that
20
point as soon as I hit the alarm, I ran back to get some
21
air.
22
water at all.
23
at all.
But, on the way, I didn't see anything in the

I didn't see her on the edge of the pool
I didn't see the whale at all either.
24
Q.
Did you see Tilikum holding on to her hair?
25
A.
The last image I have of the two, yes.
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746
could not break free.
tail being pulled toward the water.
3
4
Q.
She had both hands on her pony
About how far away were you from Ms.
Brancheau?
A.
I would say approximately 20 feet.
Q.
And, as the spotter, that was your job to
watch her interaction?
A.
Correct, and be by the emergency tone box.
Q.
And, after you saw her holding onto her hair,
10
11
what did you do next?

A.
I immediately got up and turned around and
12
had to run or turn around to the area behind the wall.
13
I hit the alarm, and right after that, I went to go get
14
spare air as part of our emergency protocol to activate
15
the alarm, get air right away and let our net reel and
16
eventually move the whale?
17
Q.
Prior to working with Tilikum on the
18
nontactile team, had you read the SOP's that are
19
specific to Tilikum?
20
A.
Yes.
21
Q.
Were you familiar with those SOP's?
22
A.
At the time, yes.
23
MS. GUNNIN:
24
That's all the questions I have, Your Honor.
25
JUDGE WELSCH:
One moment, Judge.
(Pause)
Can you give me some sense of the
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size of the G pool?
asking you to guess.
Do you have any idea?
THE WITNESS:
I'm not
It's approximately 26 feet deep.
Lengthwise, I could not give you an exact length.
an oddly shaped pool.
circle.
It's
It's not a regular square or
JUDGE WELSCH:
Okay.
THE WITNESS:
Millions of gallons, I would
9
10
assume.
JUDGE WELSCH:
You have no idea what the
11
distance would be across the pool from where the Dine
12
With Shamu guests would sit versus I think you were
13
standing across the pool making the announcement?
14
15
16
17
THE WITNESS:
Correct.
I would say
approximately 60 to 80 feet across.

JUDGE WELSCH:
And, then, I think the bridge is
at the one end?
18
THE WITNESS:
Yes.
19
JUDGE WELSCH:
Is there another bridge at the
20
21
22
23
24
25
other end?
THE WITNESS:
There's one bridge at one end and
then there's a stone wall.

JUDGE WELSCH:
Do you know what the distance
between the bridge and wall would be?

THE WITNESS:
Approximately 110 feet.
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JUDGE WELSCH:
Thank you, sir.
Ms. Howard-Fishburne or Mr. Black?
---o0o---
CROSS-EXAMINATION
Q.
Good morning, Mr. Topoleski.
A.
Good morning.
Q.
Just so I'm clear, your testimony is that you
9
10
worked -- you began working at the Shamu Stadium in

January of `08; is that correct?
11
A.
Correct.
12
Q.
And, prior to that time, you had been at Sea
13
Lion and Otter?
14
A.
No, prior to that, I was on Special Events.
15
Q.
Special Events, okay.
16
Then you transferred
over to the Sea Lion and Otter in June of 2010?
17
A.
June of 2000-what?
18
Q.
10?
19
A.
Approximately, May, June.
20
Q.
And, you were still an animal trainer?
21
A.
Yes, ma'am.
22
Q.
Senior trainer?
23
A.
Yes, ma'am.
24
Q.
And, you stopped working for Shamu or Sea
25
World last month?
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A.
July 31st was my last day.
Q.
And, what is your title with the FBI?
A.
Forensic canine operations specialist.
That's the Lab Division evidence response team.
Q.
canines?
A.
Correct.
Q.
And, you have had prior experience working
And, I assume you're working with the
with dogs, right?
10
A.
Yes, ma'am, several years.
11
Q.
Now, you testified that you were a part of
12
Tilikum's nontactile team?
13
A.
Yes.
14
Q.
And, for the period of time that you were at
15
Shamu Stadium, you never performed water work?
16
A.
No, ma'am.
17
Q.
And, as part of your training at Shamu
18
Stadium, it was your expectation that had you stayed
19
there, at some point you would have performed the water
20
work; is that correct?
21
A.
That was my expectation, yes.
22
Q.
And, being permitted to engage in water work
23
comes with having to receive additional training?
24
A.
Correct.
25
Q.
And, the more familiar you become with Sea
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World's killer whale program, that increases the
likelihood of being able to do more complicated
activities with the killer whales; is that correct?
A.
I would say so, yes.
Q.
During your time at Shamu, while you weren't
permitted to do water work, you were permitted to feed
the killer whales behind the barriers?
A.
Correct.
Q.
And, the barriers, can you explain where they
A.
The barriers could be at pool edge, it could
10
were?
11
12
be, for example, on the front pool.
We have a six,
13
seven-foot tall glass which would be considered a
14
barrier, and we have a small barrier behind the stage as
15
well.
16
area.
We have some rock walls as well around the G pool
17
It wasn't -- I didn't have to all the time be
18
behind the barrier.
Eventually, throughout my career at
19
Shamu Stadium, there was more opportunity to be more
20
face to face.
21
behind the barrier.
But, initially, starting off, I was
22
Q.
And, that was for your safety, correct?
23
A.
Correct.
24
Q.
And, the barriers protected you from falling
25
into the pool; is that correct?
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That was one of the
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purposes?
A.
One of the purposes, sure.
Q.
Now, you testified in response to some of Ms.
Gunnin's questions, that the Dine With Shamu show had
concluded on February 24, 2010?
A.
Yes.
Q.
And, you were the narrator?
A.
Yes.
Q.
And you were also acting as a spotter?
10
A.
After Linne Schaber went downstairs to the
11
12
13
14
glass, I was her primary spotter.

Q.
So, were you the secondary spotter while Ms.
Linne Schaber was up and around in the area?

A.
Yes, I would say so, but I would also say
15
that I was the tone spotter, the person on the tone box
16
for the emergency tones.
17
18
Q.
And, you are required to be near the tone box
in case there is an emergency?
19
A.
Someone has to, correct.
20
Q.
And, this next phase of the performance that
21
occurred on February 24, 2010, this was a bonding
22
session that Ms. Brancheau was having with Tilikum?
23
A.
A relationship session, I would say, yes.
24
Q.
And, that is a typical interaction that
25
occurs after the Dine With Shamu show?
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A.
We have several options of what we can do
with our whales.
different kinds of sessions, whether it be a husbandry
session, an exercise session, a learning session, a play
time, a relate.
We break up their day using several
In this instance, she had had a great show
with the whale.
else with the whale.
face-to-face time, bonding time with her animal.
10
Q.
She didn't want to ask to do anything

She just wanted to have some
And, the guests that are at Dine With Shamu,
11
they're permitted to stick around and sort of watch as
12
they're sort of leaving the area?
13
14
15
16
A.
They're encouraged to leave; but, of course,
we won't tell them, "You have to go right now."

Q.
They're permitted to take pictures while
they're there or videotape?
17
A.
Correct.
18
Q.
Now, you mentioned that the last image of Ms.
19
Brancheau that you saw was her holding her hair; is that
20
accurate?
21
A.
Yes.
22
Q.
Did you actually see her hair go into the
23
24
25
water?
A.
She was laying away from me.
I was staring
at her, so her head was further away from me laying down
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on her back at the pool edge on the concrete ledge.
her hair was underneath her at the time, so the water
just carried it.
mouth, I assume.
5
6
Q.
So,
So, it blew right by the whale's
What did you say about it flew by the whale's
mouth?
A.
She was laying down.
JUDGE WELSCH:
He said he assumed.
10
Q.
You said Ms. Brancheau was lying down?
11
A.
Correct, to make a mimic behavior.
It wasn't
12
that she was lying down not paying attention to the
13
animal.
14
behavior which was the behavior of laying down and
15
mimicking what she was doing.
16
like this (demonstrating), the whale in turn was asked
17
to lay down as well with his ventral side up, his belly
18
side up, and she would grab onto his flipper and was
19
holding on to him, and that was the behavior.
She had control of the animal, asked for a
So, if she's laying down
20
JUDGE WELSCH:
The whale would be in the water?
21
THE WITNESS:
Correct, yes.
22
JUDGE WELSCH:
And, she would be on the
23
slide-out, the edge?
24
THE WITNESS:
Yes, sir.
25
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1
2
Q.
And, as a part of your training, this was
considered dry work?
A.
Yes.
Q.
And, this was a typical interaction of a
5
6
7
8
trainer approved to work with Tilikum?

A.
It was one option of numerous behaviors that
she had learned throughout the years.

Q.
But, it was an approved -- let me back up.

For another tactile member for Tilikum's team
10
back on February 24, 2010, it would have been permitted
11
to do that same behavior with Tilikum?
12
A.
Right.
13
Q.
When you started working at Shamu Stadium,
14
you were given a special talk regarding Tilikum; is that
15
correct?
16
A.
Correct.
17
Q.
And, that's referred to is the Tili Talk?
18
A.
Yes.
19
Q.
And, as part of the talk, the trainers
20
informed you that if you found yourself in the water
21
with Tilikum, you may not survive; isn't that correct?
22
23
A.
Yes.
That was also to let management know.
I wouldn't consider it trainer to trainer.
24
Q.
Management told you that?
25
A.
Correct.
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1
2
Q.
And, as a part of that Tili Talk, they also
informed you about Tilikum's past history?
A.
Correct.
Q.
And that he was involved in two deaths?
A.
Yes.
Q.
And that you should be extra careful working
around Tilikum; isn't that correct?
A.
Correct.
Q.
Tilikum never responded to the call-back
10
tone, did he?
11
A.
That day, no.
12
operations, he did not.
13
leading up, he did.
14
15
Q.
During the interactions prior,
I should have been clear.
During the rescue
procedures, he did not.
16
17
I'm sorry, during the rescue
You also as a part of the rescue, attempted

to slap the water; isn't that correct?
18
A.
Yes, ma'am.
19
Q.
And, Tilikum didn't respond to your slapping
20
the water, did he?
21
A.
No.
22
Q.
In fact, Tilikum didn't let Ms. Brancheau go
23
until he finally was coerced to go over to the med pool;
24
isn't that correct?
25
A.
Correct.
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1
2
Q.
So, the rescue procedures that were in place
on February 24, 2010, didn't work, did any?
A.
In that instance, I can't say that they did.
Q.
Do you recall how long Tilikum had Ms.
Brancheau?
6
7
A.
approximately 40, 45 minutes.
8
9
What I understand from the report
I don't have anything
else for this witness, Your Honor.
10
JUDGE WELSCH:
11
MS. GUNNIN:
Ms. Gunnin, any Redirect?

Yes, Your Honor.
12
---o0o---
13
14
BY MS. GUNNIN:
15
Q.
16
Mr. Topoleski, where did you get your
experience working with canines?
17
A.
I started my experience in the United States
18
Army.
19
Canine Program, up at Lackland Air Force base in Texas.
20
I was one of the top dog handlers in my class, and from
21
there on, I decided to make a career of animal training.
22
I was selected to attend the United States Army
Two years of working with dogs in the
23
military, I tried to pursue a degree or pursue a career
24
at Sea World Orlando.
25
first in psychology which I did at the University at
They suggested I get a degree
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Central Florida.
I got an internship in my junior year and
started working at Sea World.
working at Sea World in the Special Events area, that
area had adopted the canine detector program, explosive
detector dog program with no one really experienced to
help run it or help train it.
8
9
After a couple of months
I had done previous work like that in the

military, so I had done that for four years at the Sea
10
World canine program, helped that grow, to get that
11
established and it's still established today.
12
doing that and also one of my duties was being an animal
13
trainer in the Special Events area.
14
Q.
So, I was
And, when you worked with the canines at Sea
15
World, was that any different, the training protocols
16
than you had when you were with the Army?
17
A.
I wouldn't say there's much difference.
18
just had extra duties with military dogs in the Army as
19
well.
20
21
Q.
And, you still work with canines at the
Federal Bureau of Investigation?
22
A.
I do.
23
Q.
Any difference in the training protocols?
24
A.
25
Q.
What kind of training do you utilize to work
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with canines?
A.
The canines I use right now, I train English
Springer Spaniels to detect volatile compounds in the
soil.
We also work with blood hounds for human
scent tracking to find a suspect, missing children,
missing people to help the evidence response team of the
Lab Division to help build evidence, to help
investigators to come to a conclusion with some cases.
10
Q.
Do you use positive reinforcement --
11
Your Honor, I'm going to
12
object to the extent that it's beyond my Cross-
13
Examination.
14
15
16
17
MS. GUNNIN:
She asked about working with
canines.
Is this going to operant
conditioning?
18
JUDGE WELSCH:
Overruled.
19
THE WITNESS:
Can you repeat the question?
20
BY MS. GUNNIN:
21
Q.
22
Do you use positive reinforcement training in
working with canines?
23
A.
Correct.
24
Q.
After a Dine With Shamu show, can you decide
25
to do nothing with the killer whale?
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1
2
A.
Sure.
You could choose to terminate the
session until you're ready to do another session.
Q.
And, after that presentation and the Dine
With Shamu, there's nothing that would follow that as a
show?
A.
As a show?
No, not typically.
Q.
You described that Ms. Brancheau was lying on
her back, and she had Tilikum lying on his back as well.
Did you observe that behavior?
10
A.
Yes.
11
Q.
And, she was touching the end of his pectoral
12
flipper?
13
A.
Yes.
14
Q.
How big would you estimate his pectoral
15
16
flipper is?
A.
I believe his pectoral flipper is
17
approximately six feet in length, over five feet maybe
18
in width.
19
20
Q.
So, his mouth would have been a far distance
from Ms. Brancheau at that time?
21
A.
Correct.
22
Q.
Do you have an estimate of how far his mouth
23
24
25
might have been?

A.
I want to say behind you if the edge of the
desk right there, if she was holding onto his pectoral
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flipper right there, his head might be on the edge of
your desk right there.
Q.
Can you give an estimate for the record?
A.
I'll say approximately four feet.
Q.
It would be closer than his pectoral flipper?
A.
I'm assuming from where her head was to where
his head was.
Was that what you were asking?
Q.
10
11
MS. GUNNIN:
JUDGE WELSCH:
16
17
Do you want to do any follow up,
14
15
Okay, that's all the questions I
have.
12
13
Okay.
No, Your Honor.
Thank
you.
JUDGE WELSCH:
Is Mr. Topoleski excused as a
witness?
18
MS. GUNNIN:
19
20
JUDGE WELSCH:
21
22
with other persons who may be called later as witnesses
23
in this case.
24
25
Yes, Your Honor.

He's excused, Your Honor.
You're excused as a witness.
(Witness Excused)
JUDGE WELSCH:
With what, why don't we take our
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1
2
3
lunch break.
Let's be back at quarter after 1:00.
Thank you.
We're adjourned.
---o0o---
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Afternoon Session
1:15 p.m.
JUDGE WELSCH:
7
8
Your Honor, we would
call Dave Duffus.

JUDGE WELSCH:
Mr. Duffus?
---o0o---
10
DR. DAVID A. DUFFUS,
11
12
13
JUDGE WELSCH:
For the record, sir, would you
14
15
16
THE WITNESS:
My name is David Alan Duffus,
17
D-u-f-f-u-s.
My address is Department of Geography,
18
University of Victoria, Victoria British Columbia,
19
Canada.
20
JUDGE WELSCH:
21
Your witness.
22
MS. GUNNIN:
Thank you, sir.
Judge, this is the designated
23
expert of the Secretary.
24
the Daubert hearing at this time?
25
JUDGE WELSCH:
So, would you be conducting
Yes, I would.
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As I explained
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yesterday, I'm going to conduct this so, Ms.
Howard-Fishburne, just go through the preliminary
information in terms of everything you need other than
the opinion.
that he be qualified as an expert.
I'm assuming you're going to be asking
JUDGE WELSCH:
Yes, Your Honor.
After you have gone through the
preliminary information, then identify for me exactly
what areas you're offering him as an expert in, and at
10
that time, Ms. Gunnin, if you have any voir dire
11
questions, you can do it at that time and then I'll take
12
arguments.
13
MS. GUNNIN:
14
---o0o---
15
DIRECT EXAMINATION
16
17
Q.
Good afternoon, Dr. Duffus.
18
A.
Fine, thank you.
19
Q.
I'm just going to ask you a few questions
20
How are you?
about your professional background.
21
You prepared a report in this matter; is that
22
correct?
23
A.
Yes, I did.
24
Q.
And, would it be helpful for you to look at
25
your qualifications as listed in the latter portion of
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this report?
A.
I think I can recall most of it.
Q.
Okay, great.
Why don't you tell the Court
where did you attend college?
A.
I undertook my Bachelor of Science in Biology
at the University of Regina where I also undertook my
Masters of Science in the Geography Department, and I
did my doctoral studies at the University of Victoria.
9
10
Q.
you study?
11
12
A.
Q.
And, your dissertation, what particular topic
was that on?
15
16
The doctorate studies were on the use and
management of whales on the British Columbia Coast.
13
14
When you did your doctoral degree, what did
A.
We studied both killer whales and gray
whales, and we studied nascent activity of whale watch.
17
Q.
18
referring to?
19
A.
Well, my supervisor and myself.
20
Q.
And, what year did you complete your
21
And, when you said "we," who are you
doctorate degree?
22
A.
1988.
23
Q.
And, you were awarded your doctoral degree
A.
Yes.
24
25
1988?
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1
2
3
Q.
And, after being awarded your doctoral
degree, how did you begin your career?

A.
We carried on some of those studies, we
instituted some new studies on whales around Vancouver
Island, and we also extended to studies in various
locations.
7
8
9
10
11
12
13
Q.
And, when you say "whales," what particular
whales did you study?

A.
At that time, it was primarily killer whales
and gray whales.

Q.
And, what were you studying?
What about the
whale were you studying?

A.
Well, through the course of the initial years
14
of study, we came to the conclusion that we needed much
15
more ecological and behavioral research to understand
16
the foundations that the whale-watch industry was built
17
on, that is a predictable concentration of whales.
18
19
20
Q.
And, so when you did this observation, can
you explain to the Court how you went about doing that?
A.
Well, it's a pretty typical scientific means.
21
We used in the beginning largely observational
22
experiments where we would develop rigorous observation
23
programs to try and understand, first of all, where the
24
whales were and then the explanation of why they were
25
there.
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1
2
Q.
And, you did this -- how close did you
actually get to the killer whales?
A.
Do you mean physically?
Q.
Physically, yes.
A.
As a product of working in a small boat with
usually large numbers of killer whales around, sometimes
it was extremely close, closer than we would want.
JUDGE WELSCH:
By closer than you want?
THE WITNESS:
Sometimes killer whales will
10
approach your boat while you're working, and I think
11
perhaps much the same way as Mr. Tompkins was describing
12
it, they would come and have a look over I guess.
13
generally as a rule try to stay a certain distance away
14
in the engagement of the work.
15
JUDGE WELSCH:
16
17
Q.
18
19
20
21
22
23
We
Okay, thank you.
And, you did this field study for about six
years?
A.
I did close field studies of killer whales
for six years yes.

Q.
And, then, after you completed this field
study, where did you begin work?

A.
When I took my permanent appointment at the
24
University of Victoria, we expanded our work in terms of
25
the number of species and in terms of the types of
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studies and in terms of the location where we undertook
the studies.
Q.
And, the permanent appointment that you
obtained at the University of Victoria, what appointment
was that?
A.
It began as an appointment at the level of
assistant professor, and I was able to develop and
implement my whale research laboratory which still goes
on today.
10
11
JUDGE WELSCH:
When did you start as an
assistant professor?
12
THE WITNESS:
13
14
Q.
15
1991.
Now, you mentioned you have a whale research
laboratory?
16
A.
Yes.
17
Q.
Can you explain to the Court what that is?
18
A.
It's primarily a laboratory shared by myself
19
and my graduate students, and over the past years, we
20
have developed about 25 graduate level research
21
programs.
22
undergraduate teaching.
23
and visitors from other places commonly come and
24
undertake studies.
25
Q.
We also use it as a foundation for

It's also a site where guests
And, you mentioned that you started as an
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assistant professor.
assistant professor?
3
4
5
6
7
A.
No.
Are you currently still an
In the usual scheme of events, I was
promoted to associate professor with tenure in 1996.

Q.
And, as an associate professor, what types of
courses do you teach?

A.
I've had the pleasure of teaching 26
different courses at the university level.
My primary
focus now is on junior level biogeography which is a
10
fundamental biological science course for geographers, I
11
teach research design to the undergraduates and to the
12
graduate students, I teach marine mammalogy.
13
my formal undergraduate courses.
14
15
16
Q.
Those are
In the marine mammalogy course, what topics
do you cover in that course?

A.
Well, the week before I came up, I started
17
into the subject of phylogeny and evolution using the
18
paleontological rectory.
19
be doing basic biology of marine mammals.
20
ecology of marine mammals takes up to somewhere up to
21
about half the course, and we also lecture and discuss
22
extensively on interaction between humans and marine
23
mammals.
24
Q.
25
When I return next week, I'll

Biology an
When you reference marine mammals, that
includes the killer whales?
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A.
Yes, it does.
It's cetaceans.
polar bear.
Excuse me, I should be clear.
We don't study pinnipeds, sea otters or
JUDGE WELSCH:
Cetaceans, what does that mean?
THE WITNESS:
Whales, dolphins and porpoises.
Q.
And, in your marine mammalogy course, how
much time do you actually spend discussing killer whales
and dolphins?
10
A.
Because of the location, it's a very active
11
killer whale area, they are quite popular with the
12
students.
13
Q.
When you say "location," you mean?
14
A.
Victoria.
They're an almost daily occurrence
15
in Victoria area waters.
16
exemplars.
17
so, for example, when we talk about evolution, killer
18
whales represent an interesting fact of evolution
19
because they are considerably larger than the remaining
20
members of their family.
21
dolphin family, and that size issue has an evolutionary
22
component.
23
Killer whales specifically are
The course is a systematic science course
They're part of the oceanic
And, of course, when we get into the human
24
domain, there's quite a bit of interest in killer whales
25
in their role as a subject of whale watching, as a
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1
2
subject of captivity and display.

Q.
Now, you mentioned earlier that you are a
part of the geography program at the University of
Victoria?
A.
Yes.
Q.
Can you explain how your study of whales is
7
8
9
connected to geography?
A.
planning.
Not fully.
Perhaps some of it is due to bad
Actually, the geography department is a good
10
place because fully one half of geography is systematic
11
natural science, and that's where I fit in, but I also
12
enjoy the scholarly and intellectual traditions of
13
geography in that it allows us to look further afield
14
and it gives us access to callings with different skill
15
sets that help us bring together integrated studies.
16
17
Q.
You also mentioned in your report that you
served as an adjunct in zoology?
18
A.
Yes, I did.
19
Q.
Can you explain that a little bit?
20
A.
I was asked by a faculty member at the
21
University of Guelph, which is in Ontario, Central
22
Canada, to participate in some of their work as an
23
adjunct in zoology, and those studies were on marine
24
conservation and ecology.
25
Q.
Did you teach any courses, or were you like
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1
2
an advisor to students?
A.
How did that work?
It was primarily an advisory role
particularly with a fairly large doctoral study that was
going on at the time.
Q.
In addition to your teaching
responsibilities, have you also written papers on the
topic of killer whales?
8
9
10
A.
Yes, it's a natural outcome of the work we
undertake.
We've published papers, participated in
numerous conferences, delivered many conference papers.
11
I've also participated in other student
12
studies in a supporting role.
13
perhaps a decade, that's where my most day-to-day
14
contact with killer whales came about.
15
16
17
Q.
And, in fact, over
That's overseeing the studies of the graduate
students?
A.
That's working with my one-time assistant and
18
perhaps has now considerably exceeded me, Dr. Robert
19
Barrett.
20
Q.
21
publications.
22
Ocean Wild Life:
23
the Management of Killer Whales on Canada's Pacific
24
Coast."
25
A.
And, I see listed on here a list of

You wrote a paper entitled, "Managing
A Case Study of Recreational Use in
Can you tell us a little bit about that?

Yes, I can.
The fundamentals are as we have
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a few sites on the British Columbia Coast where killer
whales seasonally form quite predictable aggregation.
And in doing so, they form the nucleus of the whale
watching industry.
So, what we try to demonstrate in that study
are two basic components.
ecological component and behavioral component, and then
there's the social structure in terms of the development
of an industry, the maturation of an industry, and the
10
outcome of this whole event which we look for in terms
11
of perhaps some of the same things that Sea World does
12
in terms of public education and knowledge.
13
14
Q.
There is the biological and
So, you were studying the whale watching
industry; is that clear?
15
A.
We did.
16
Q.
Is whale watching a typical activity in
17
18
British Columbia?
A.
Yes, it is.
It grew very significantly as a
19
component of tourism in British Columbia.
20
started studying it, there were two boats involved.
21
There are considerably more now.
22
Q.
When we
You also have listed a paper that you wrote,
23
"Killer Whales, Whale Watching and Management."
24
that just an update of your original paper?
25
A.
Was
No, that's an interesting paper in that one
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of the things that is often brought out in whale
watching is the balance between benefit and cost, and
one of the costs that is brought up commonly is, are the
killer whales being disturbed by the activity?
that disturbing, are they being displaced and perhaps
does this have longer-term negative effects?
Through
So, in this particular paper, my colleague
and I took the scientific studies that were going on at
the time and we gave them a fairly thorough going over
10
in terms of were they good science papers?
11
well structured?
12
Were they
Were the data well analyzed?
And, if you read the paper, you will find we
13
were not convinced.
14
that up because with a new student right now, I'm
15
instituting another look.
16
17
18
19
20
21
22
Q.
It's interesting that you bring
Of whether the whales are actually disturbed
during -A.
Whether the research has advanced and is now
convincing.
Q.
What did the research, I guess, reveal
initially, if anything?
A.
Well, some of my colleagues think I'm a
23
little too skeptical, but I remain unconvinced by the
24
studies.
25
Q.
You remain unconvinced about the studies'
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reliability?
A.
Or that they demonstrate whale disturbance.
Q.
So, you're working now on a new study with a
4
5
graduate student?
A.
What we're going to do is we're going to
summarize -- in the past 15 years, we're going to
summarize the research.
8
9
10
Q.
papers.
Additionally, you also have a whole lot of

I'm just trying to go over some that actually
deal with killer whales.
11
There's a paper written I guess in 2002
12
entitled, "Geostatistical Analysis of Interactions
13
between Killer Whales and Recreational Whale Watching
14
Boats," and I guess that was published in Applied
15
Geography?
16
A.
Yes.
17
Q.
Could you tell us a little bit about that?
18
A.
Well, that's an example of where a student
19
came to join us from another university and collected
20
data and the sampling we had been collecting and applied
21
different techniques to the analysis of the data to try
22
to analyze whether or not the whales moved more
23
demonstrably away from whale watching boats or not.
24
25
Q.
And, I guess, what was the result or outcome
of that research?
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1
2
A.
Well, my own opinion is it's a little
wishy-washy.
Q.
A.
What it means to me is the activities are not
very tightly determined.
My principal feeling is that
killer whales are not terribly disturbed by whale
watching boats based on what I've seen.
possibility that disturbance can occur in a number of
ways.
I entertain the
And, under certain conditions, as other witnesses
10
have pointed out, there's a lot of context with killer
11
whales, and that's true for whales in the wild or
12
captvity so under certain conditions whales may be
13
disturbed and under others, they may not be.
14
15
Q.
I see you've also other papers involving
whales other than killer whales; is that correct?
16
A.
Yes.
17
Q.
And, you wrote a paper back in 2008 involving
18
a humpback whale?
19
A.
Yes.
20
Q.
What is a humpback whale?
21
A.
A humpback whale is one of the baleen whales,
22
as opposed to the killer whale which is a toothed whale.
23
It's a cosmopolitan species, very colorful in terms of
24
its aerial behavior.
25
an example of the kind of studies we carry out,
That was a study -- I mean, that's
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behavioral studies that I'm willing to carry out because
it's about maternal behavior and my role -- that was one
of my graduate students -- was to keep real strong
metrological control over the study by creating
measurable phenomena, and by collecting enough of these
measurable phenomena which generally has -- this was a
maternal behavior study, the distance between the cows
and calves and to collect enough data to get a good
statistical sample so that our answer has some rigor.
10
Q.
I know the title of the article was, "Mother-
11
Offspring Association in the Humpback Whale."
What
12
behavioral observations did you -- I guess, what
13
conclusions did you draw after having these
14
observations?
15
A.
Well, the humpback aspect is not so
16
important.
Any mother-calf relationship can be one of
17
two kinds.
The young can be what's called a follower or
18
it can be a higher.
19
highly mobile animals, cetaceans are generally
20
followers, but there's always a tradeoff in that the
21
mother has to continue feeding, and when the mother
22
feeds, the calf is momentarily at varying levels of time
23
deserted.
24
energy and protecting the young, and this happens in all
25
species.
Of course, in this case, with
So, there's always a balance between getting
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So, that's the background.
In this case, we
found a really nice continuum of as the calf grew
towards weaning, it began diving longer and longer with
the mother.
Q.
You also have listed in your report a
professional activity that you were involved in, and
there are a number of them, but I notice one where you
were an invited participant of the "Governor's Forum:
Private Forum for the Board of Governors of the
10
Vancouver Public Aquarium," and that was in January of
11
1994.
12
Can you tell us a little bit about that?

A.
Well, the Vancouver Public Aquarium at that
13
time displayed killer whales, and they were under a
14
great deal of public pressure to divest themselves of
15
the killer whale displays, and there was a great deal of
16
demonstration and fairly strong emotions on both sides
17
of the case, and I was lucky enough that the Director of
18
the Aquarium thought my opinions were balanced, and he
19
asked me to participate in that process where they were
20
discussing the pros and cons of maintaining their killer
21
whale display.
22
Q.
23
24
25
So, it was just a discussion.
There were no
conclusions drawn there?

A.
Eventually, there were conclusions and the
Vancouver Public Aquarium did divest themselves of
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killer whales.
Q.
You also have listed, just highlighting some
of the activities, you were an organizer of a symposium
in the 11th Annual Meeting of the Society for
Conservation Biology.
that?
A.
Can you talk a little bit about
Yes, it was a trick in that we wanted to
bring together a number of marine mammal researchers and
talk about applying our science to conservation.
So,
10
what I did was I convinced the entire Conservation
11
Biology Society to have their meeting in Victoria, and
12
under the guise of that, I was able to invite perhaps 20
13
to 25 scientists to come and present papers on their
14
work and how they fit their science whether it be
15
behavior ecology or population biology into
16
conservation.
17
Q.
You had to do all the work?
18
A.
Yes.
19
Q.
You also have listed you were an invited
It was a clever ruse, but it backfired.
20
participant of the Marine Mammal Experts Group Workshop
21
back in 2008.
22
A.
Is that similar?
What was that?
If you look up and down that list, you'll see
23
that's one of those occasions where an agency who in
24
that case was a government agency that was charged with
25
a particular aspect of environmental management will
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bring together a group of people and will talk about
what the state of research is, what do we know and where
are the gaps.
Q.
I'm sorry, go ahead.
A.
They're a part of normal professional
6
7
8
There's lots invitations like that.
development in the sciences.

Q.
Is it fair to say that you have spoken across
the world on the issue of marine mammalogy?
A.
Yes.
10
Q.
You also have listed several publications
11
where you are a reviewer, and I note for the Court you
12
were a reviewer for Marine Ecology Progress Series,
13
Marine Mammal Science.
14
15
16
Could you just explain to the Judge what your

function is there?
A.
Again, being a referee for a scientific
17
journal is part of professional development.
18
will send you an article as a referee if they believe
19
you have expertise in a particular area.
20
you an article, and you're charged with basically giving
21
the article a thumbs up or a thumbs down or somewhere in
22
between where you ask for a certain set of changes,
23
edits, alterations.
24
25
Q.
A journal
They'll send
What are you looking for when you are
reviewing the different articles?
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A.
Well, I'm pretty sticky.
I look for a
clearly stated hypothesis.
transparent methods because that's the key to scientific
communication.
analysis of data, good interpretation of the analysis,
and then I like to see a discussion start with a
discussion of the results followed by setting those
results in a bar context.
9
10
Q.
I look for clear and
I look for good quality data, good
And, you don't receive compensation for those
reviews, do you?
11
A.
No, ma'am, we don't.
12
Q.
That's all part of the professional growth?
13
A.
It is and, of course, when you submit papers,
14
15
16
someone else does it for you.

Q.
And, I see you also are a reviewer for the
Canadian Journal of Fisheries and Aquatic Sciences?
17
A.
Yes.
18
Q.
As well as the Journal of Zoology?
19
A.
Yes.
20
Q.
And, you have also authored a number of
21
conference papers; is that correct?
22
A.
Oh, yes.
23
Q.
I see here listed, you have a paper on a
24
"Comparative Study of Cetacean Conservation:
25
Issues from Two Case Studies" that was presented to the
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781
Society of Conservation, Biology in Victoria, British
Columbia.
time ago?
A.
Do you remember that presentation?
A long
Yes, it was some time ago, but one of the
areas of interest that one of the students brought out
and that I continue to follow along with has to do with
institutional arrangements and structures for marine
mammals.
We have talked about it in a number of
10
conservation biology groups with the marine mammal
11
science groups.
12
those institutional structures use fundamental science
13
to manage, and the comparative aspect is really good
14
because then you get to compare how different nations
15
and how different international groups have developed,
16
not only developed but also implemented their management
17
strategies.
18
19
Q.
And, the primary reason is because
And, when you say management strategies,
you're referencing marine mammals?
20
A.
Yes.
21
Q.
You've participated in a whole lot of
22
conferences; is that correct?
23
speak on marine mammals?
24
25
A.
Are you invited a lot to
A good number --
I've gotten a reasonable number of
invitations.
Of course, one of the reasons that that's
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so high is that I consider that an important part of the
educational process for my graduate students, and I
actually get pretty demanding that they get out there
early in their careers and start presenting their
material and be able to field the questions.
6
7
Q.
Have you ever testified as an expert at a
trial?
A.
No, I have not.
Q.
I notice in your report you served as a
10
foreman on a coroner's jury?
11
A.
Yes, I did.
12
Q.
Can you tell the Court a little bit about
13
your experience as a foreman?
14
A.
The coroner's jury in the Province of British
15
Columbia is an expert jury.
16
case of the coroner's inquest into the death of Keltie
17
Byrne who was the trainer killed in Sea Land of the
18
Victoria.
19
This was, of course, the
The Crown Counsel for the coroner somehow got
20
my name.
21
whales, and I had done some other work on the social
22
domain, and the Crown Counsel requested that I join the
23
jury.
24
25
I was in the middle of field studies on killer
Once the jury met, they had, I guess, the bad

luck and poor judgement to ask me to be the foreperson.
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Q.
What did you do as the foreperson?
A.
We sat as the coroner's jury, and I believe
we sat for five sitting days rather than the two that
was originally planned, and we sat through the
presentation that began with the medical examiner's
report and then witnesses were presented by the Crown
Counsel.
8
9
There were intervenors from the aquarium

owner, and there were intervenors from the Workers
10
Compensation Board which is an equivalent type of
11
organization to OSHA, as far as I understand OSHA, and
12
then we were also able to call witnesses to make the
13
story more complete.
14
first death that we knew of, human death, at the hands
15
of a killer whale.
16
JUDGE WELSCH:
17
coroner's jury?
18
the purpose?
19
And, at that time, that was the
What was the purpose of the
What were you looking into?
THE WITNESS:
What was
Your Honor, the fundamental
20
purpose was to decide what the category of the cause of
21
death was, and then we were secondarily charged with
22
discovering what were contributing issues and make
23
recommendations as to how this could be avoided in the
24
future.
25
JUDGE WELSCH:
Thank you.
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Q.
In this case, you reviewed a number of
documents; is that correct?
A.
Yes, we did.
Q.
And, can you tell me what you have reviewed
in order to prepare your opinion?
Don't give your
opinion, but can you tell the Court what information you
reviewed?
A.
In this case today?
10
Q.
In this case.
11
A.
I was supplied with a fairly large quantity
12
of documentation, somewhere between 2- and 3,000 pages
13
of materials supplied by Sea World, many of which are in
14
evidence here, I think all of which are in evidence.
15
was supplied with the OSHA citations.
16
Q.
So you did receive the OSHA file?
17
A.
Yes, I did.
18
Q.
And, you received discovery documents that
19
Sea World provided to the Secretary of Labor?
20
A.
Yes, as well as videotapes and depositions.
21
Q.
What depositions did you review?
22
A.
Mr. Topoleski, Ms. Flaherty Clark, Ms. Mary
23
Craig Thomas, Mr. Tompkins who spoke yesterday, Linne
24
Schaber, who was on the stand up here, and Fredy
25
Herrara.
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Q.
And, contained in the documents that the
Secretary of Labor received from Sea World, did you have
an opportunity to review Sea World's Standard Operating
Procedures?
A.
Yes, I did.
Q.
Did you review all of the training materials
that were provided?
A.
Yes, I did.
Q.
Is there any additional information that you
10
11
reviewed in forming your opinion?

A.
Yes, I did.
Upon reading material and as I
12
got into it, I realized I had to review material and I
13
wanted to supplement material, so I went to some
14
scientific papers and I also went back to some
15
fundamental text books to remind myself and also to
16
update myself to make sure that my understanding was
17
sound.
18
Q.
And, when you say you reviewed some
19
scientific papers, what scientific papers did you review
20
to aid you in forming an opinion in this case?
21
A.
I looked the papers by Robin Baird.
I wanted
22
to remind myself of a point he made to me earlier about
23
spacial memory in killer whales.
24
of the old material and luckily I still had some of this
25
in my files because I was quite interested at the time,
CARLIN ASSOCIATES
I went back into some
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particularly the understanding of American psychological
pioneers that I saw Mr. Tompkins refer to in one of his
publications, B. F. Skinner, and some of the controversy
that followed.
was clear on all the terms that had to do with a
training regimen.
Q.
And, I also wanted to make sure that I
When you say you reviewed scientific papers
by B. F. Skinner, do you remember the names of the
articles?
10
A.
No.
11
Q.
Was it relating to operant conditioning?
12
A.
Skinner is the father of the school called
13
radical behavior, and, of course, Skinner had a lot to
14
say about conditioning.
15
primary developers.
16
from the Russian scientist Pavlov, whom everybody kind
17
of colloquially knows about Pavlov's dog.
18
In fact, he was one of the
He actually carried the work on
Skinner brought this up, and the reason I
19
think even from my undergraduate days stuck in my head
20
is that he's a type of controversial figure.
21
Controversies in science are great learning points.
22
Q.
Included in the information that you reviewed
23
that the Secretary of Labor provided you, did you review
24
incident reports?
25
A.
Yes, I reviewed the incident reports.
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Q.
That Sea World provided?
A.
Yes.
Q.
And did you review the animal profiles?
A.
Yes, I did.
Q.
And, I know you mentioned that you reviewed
some videos.
Did you review the videos that were
presented in Court thus far?
A.
Yes, I did.
Q.
Did you review any additional videos?
10
A.
Yes.
11
Q.
What videos?
12
A.
There was a video supplied that I believe was
13
taken of the show earlier in the day, and it was an
14
interesting video because it had kind of two
15
simultaneous channels in that the show was coming out
16
one --
17
18
MS. GUNNIN:
Judge, I think he's going beyond
qualifications to opinion.
19
20
JUDGE WELSCH:
21
please.
22
that you looked at.
Reserve the opinion for later,
I think that's sufficient to describe the video
23
24
Q.
25
Okay, that's fine.
Did you also conduct a site visit in this
case?
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A.
Yes, I did.
Q.
Did that occur in June of 2011?
A.
Yes, it did.
Q.
And, what was your site visit comprised of?
5
6
What did you do on the site visit?

A.
Sea World gave us the courtesy of a visit to
the back area to look at the pond or the pools, the
medical pool, the intervening pool and what was then
under construction the pool where the Dine With Shamu
10
11
12
show was.
Q.
And, during your time that you visited for
the site visit, did you also go to a show?
13
A.
I attended two shows, yes.
14
Q.
Dr. Duffus, without providing any opinion to
15
the Court, could you explain to the Court in what way
16
you think your qualifications qualify you to issue an
17
opinion in this case?
18
A.
Well, I think I have a reasonably good
19
background in science and research design, and that's
20
where my opinion is focused.
21
background and I've taught statistics at the
22
undergraduate and graduate level and I also have taught
23
risk analysis.
24
Q.
And, that's based in marine mammal science?
25
A.
It's broader than marine mammal science.
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Your Honor, at this time
we would move to offer Dr. David Duffus as an expert in
the area of marine animal science.
JUDGE WELSCH:
Our focus for the citations deals with an alleged
That seems pretty broad.
violation of 5(a)(1).
JUDGE WELSCH:
9
10
11
Correct, Your Honor.
What opinion or what type of an
opinion are you asking him?
Are you just talking about
generally whales?
More specifically to
12
killer whales and the nature of killer whales, Your
13
Honor, and his expertise and professional and
14
educational background as to marine mammal science.
15
JUDGE WELSCH:
I guess I'm confused.
In what
16
respect?
17
including killer whales as various topics from the
18
company.
19
talked about behavior.
20
I assume that this study of marine mammals,
I think Ms. Clark identified herself -- she
So, are you talking about asking him to offer
21
opinions or asking him to offer opinions about the
22
behavior of a whale?
23
of killer whales?
24
ocean compared to whales in Sea World Park, or whales at
25
Sea World Park compared to whales in an aquarium?
Are you talking about the raising
Are you talking about whales in the
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guess I'm just somewhat confused in terms of the offer
as an expert.
Your Honor, we're
offering Dr. Duffus as an expert to testify regarding
the nature of killer whales because one of the issues in
this case is that Sea World has represented that you can
train the predatory nature out of the killer whale, and
Dr. Duffus is going to be offered to testify regarding
the nature of a killer whale and their predatory nature,
10
and that training alone does not change a killer whale's
11
nature, despite the killer whale being in captivity;
12
that a killer whale in captivity or a killer whale in
13
the wild is still a killer whale.
14
JUDGE WELSCH:
So, the offer by the Secretary
15
of Dr. Duffus as an expert is as to the nature of a
16
killer whale?
17
As to the nature of the
18
killer whale and whether you can train that predatory
19
nature out of the killer whale.
20
And, Dr. Duffus is going to be offered to testify
21
regarding Sea World's contention about whether or not
22
that predatory nature can be gone, whether or not based
23
on the interaction or the frequency the trainers have
24
with the killer whale, does that change somehow that
25
predatory nature?
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Just simply because you interact with a killer
whale 100, 1,000, a million times, does that change the
killer whale's nature, the biology of that?
JUDGE WELSCH:
I understand.
I guess from what
I've heard in this case, I'm not sure that Sea World
would take the position that they're trying to change
the nature of the killer whale.
8
9
They are attempting to understand the nature in

terms of the way they want to interact with the killer
10
whale.
I'm not sure Sea World is in -- and maybe I'll
11
save these questions for Ms. Gunnin when she has a
12
chance.
13
From what I'm understanding, the testimony thus
14
far by the witnesses for Sea World, I'm not sure they
15
would say that they're trying to train the inherent
16
nature of the killer whale out of them.
17
other things here yesterday.
18
We talked about
And, I don't think the
19
testimony would come out as they are trying to change
20
the nature, but in the testimony and talking about the
21
predictability of whether or not there is going to be
22
another incident and how you can predict whale behavior,
23
I think that goes toward the nature of the killer whale,
24
and that's why we're offering Dr. Duffus to talk about
25
whether or not a killer whale's nature can be changed,
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and whether or not Sea World even in its 40-year
interaction with killer whales can truly predict whale
behavior.
JUDGE WELSCH:
So, if I understand, really what
you're offering him as an expert in is the nature of a
killer whale in terms of determining the predictability
of behavior?
JUDGE WELSCH:
10
11
12
Yes, Your Honor.
Is that a fair statement?
As it affects safety,
Your Honor.
JUDGE WELSCH:
So, to make sure I'm clear, the
13
offer that the Secretary is making with regard to Dr.
14
Duffus is as an expert in the nature of the killer whale
15
in terms of the predictability of behavior, in terms of
16
the predictability of behavior as it affects safety?
17
18
JUDGE WELSCH:
19
20
JUDGE WELSCH:
21
22
25
Is that the representation?

Yes, Your Honor.
Ms. Gunnin, do you have any voir
dire questions?
MS. GUNNIN:
Yes, Your Honor, I do.
23
24
Yes, Your Honor.
---o0o--VOIR DIRE EXAMINATION

BY MS. GUNNIN:
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Q.
Good afternoon, Dr. Duffus.
A.
Good afternoon.
Q.
We had occasion to meet once or twice before.
We met at the site visit that you conducted at Sea World
of Orlando in June, and we also met at your deposition
in August of this year; is that correct?
A.
Yes, it is.
Q.
And, do you recall testifying in your
deposition?
10
A.
Reasonably well, yes.
11
Q.
Do you recall testifying about whether you
12
had any experience in training killer whales?
13
A.
Yes.
14
Q.
And, do you have any experience training
15
killer whales?
16
A.
No.
17
Q.
Do you recall testifying about how close in
18
proximity you come to killer whales when you're in your
19
boat watching killer whales?
20
A.
Yes.
21
Q.
Do you recall your answer?
22
A.
Sometimes very close.
23
Q.
You don't recall saying that you make sure
24
25
not to come within 100 meters?

A.
Not by my actions.
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I try to maintain 100
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meters unless it's a permitted research activity.
Q.
What kind of research activity?
A.
Permitted.
Where we have a permit to
approach more closely.
Q.
How close would that be?
A.
In some of the studies, the whales would be
7
8
9
within ten meters, five meters perhaps sometimes.

Q.
And, you weren't trying to train those killer
whales?
10
A.
No, we were not.
11
Q.
Were you interacting with the killer whales?
12
A.
No, we were not.
13
Q.
Have you conducted any studies about
14
interacting with killer whales?
15
A.
Yes.
16
Q.
Have you conducted any studies about
17
interacting with killer whales in captivity?
18
A.
No.
19
Q.
Have you conducted any studies about killer
20
whales in captivity at all?
21
A.
Not the whales themselves, no.
22
Q.
In your classroom when you talk about killer
23
whales, what percentage of the time do you estimate you
24
talk about killer whales?
25
A.
In marine mammalogy class, I have a hard time
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putting a percentage on it.
class like mine where there's a lot of interchange with
students, they will often guide the conversation.
community class that I teach to marine mammal
naturalists, killer whales take up about 50 percent of
the time.
Q.
It can vary because in a
Do you recall testifying that in your
classroom you talk about killer whales less than
ten percent?
10
11
12
13
14
15
16
17
A.
In a
In a marine mammalogy class, it would be
about ten percent.

Q.
And, in that class, are you talking about how
to train a killer whale?

A.
No.
We do talk about captivity; not
training.
Q.
And, you talk about how captivity such as
killer whales at Sea World's parks are trained?
18
A.
Yes.
19
Q.
And, do you talk about how they're trained?
20
A.
Yes.
21
Q.
Do you have experience training the killer
22
23
whales?
A.
The underlying scientific formulation of
24
operant conditioning is a general scientific principle.
25
So, it can be known in many contexts by many people.
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Q.
Well, do you recall me asking you if you were
forming a basis about whether killer whales can be
trained at all?
A.
Are you asking me what I said to you?
Q.
Do you recall that question?
A.
I'm trying.
Q.
Do you recall your response being,
8
9
10
"Interesting question.
Can they be trained
with certainty, higher level certainty?

question.
Good
I don't know the answer."
11
A.
Yes.
12
Q.
So, you don't know if killer whales can be
13
trained?
14
A.
I don't challenge that they can be trained
15
with a level of certainty.
16
answer suggested.
17
trained, it's level of certainty with which they can be
18
trained.
19
Q.
20
I think that's what my
It's not whether or not they're
I believe that's what I said.

And, do you recall me asking about whether
you had any experience with safety at zoos?
21
A.
Yes.
22
Q.
And, do you have any experience with safety
23
24
25
at a zoo setting?
A.
My experience with safety has primarily to do
with my role in the Keltie Byrne case.
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1
2
Q.
I'm asking you specifically safety experience
related to interaction with animals in a zoo setting?
A.
No.
Q.
Do you have any safety experience related to
interactions with marine mammals in an aquarium setting?
A.
The Byrne case.
Q.
Do you recall when I asked you those back in
August, I asked:
9
10
"Do you have experience with animals in a

marine setting or in an aquarium setting?"
11
12
And, you said, "no."

A.
13
14
That's a different question, isn't it?

Would you repeat that?
Q.
Do you have safety experience related to
15
interaction with animals in a marine setting or in an
16
aquarium setting?
17
18
19
A.
Just what I've learned in these cases.
probably said little.

Q.
Now, do you recall responding to the question
20
about whether or not you should take a risk to work with
21
killer whales, you said, "What I said there is exactly
22
what I said here --"
23
24
25
Your Honor, could we get
the page number?

MS. GUNNIN:
127.
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BY MS. GUNNIN:
Q.
Thank you.
"There is uncertainty.
You cannot
effectively calculate it and you cannot abate or
ameliorate the risk used to do it."
I asked you:
"How would that be done?"
Adn, you responded:
"Well, you guys are the
experts, you've got all the materials, you've got
all the history, and a lot of creativity, Sea
10
World does, so I suggest they go to work."
11
Do you recall answering that way?
12
Your Honor, I just want
13
to object to the extent that Ms. Gunnin read part of Dr.
14
Duffus' answer.
15
16
She didn't provide the full context.
JUDGE WELSCH:
You will been given a chance to
go back if you need to.
17
BY MS. GUNNIN:
18
Q.
Do you recall answering that?
19
A.
Yes.
20
Q.
So, when I asked about how you would abate
21
certain conditions, you said that Sea World was the
22
expert, correct?
23
A.
24
MS. GUNNIN:
25
Yes.
Judge, that's all the questions I
have.
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1
2
Your Honor, I would like
to read the full question and answer.
JUDGE WELSCH:
Okay, go ahead.
Q.
Dr. Duffus, Ms. Gunnin just read you a
portion of an answer.
Do you remember when you had your
deposition a couple of weeks ago?
A.
Yes.
Q.
And, I'm reading from Page 127.
10
11
The question
was:
"Because you're really saying don't interact
12
with the killer whales because why take the risk?
13
If you have one out of a million chances it's
14
going to go wrong, don't take the risk?"
15
And then your response was:
16
"I, for instance, object to the one in a
17
million.
18
probability.
19
a bunch of different ways.
20
important.
21
said here is that there was uncertainty.
22
cannot effectively calculate it, and if you can
23
abate or ameliorate the risk, you should do it?"
24
Is that your full answer to the question?
25
I don't believe that's a simple

We can reconstitute probability in
I don't think that's
What I said there is exactly what I
JUDGE WELSCH:
Have you shown him his
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deposition?
2
3
Do you recall that
question and answer?
THE WITNESS:
Honor.
answer.
I do.
That's all I have, Your
I just wanted to read the full question and
JUDGE WELSCH:
Let me ask you a few questions.
You understand the Secretary is offering you as --
10
and I went over it with Ms. Howard-Fishburne -- they're
11
offering you as an expert in terms of the nature of the
12
killer whale in terms of predictability of the killer
13
whale's behavior, I guess as it affects safety; do you
14
understand that?
15
THE WITNESS:
Yes, I do, Your Honor.
16
JUDGE WELSCH:
Going back to an earlier question
17
that Ms. Howard-Fishburne asked you, what in your
18
background do you think gives you the experience,
19
education or skill to testify to that expertise that I
20
have identified; what they're offering you is an expert
21
in?
22
THE WITNESS:
I think, sir, as a foundation I
23
have spent in a number of contexts considerable time
24
with wild killer whale.
25
captive killer whale are essentially the same thing.
A wild killer whale and a
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1
2
These are not domestic animals.

So, one of the things that strikes me about killer
whales is variability, and this I have seen in my own
studies.
JUDGE WELSCH:
I don't want to go into the
opinions.
I'm going to start getting objections from
everyone.
I'm really asking in terms of what kinds of
studies -- let's be a little more specific -- what
studies or teaching or background that you've had that
10
you might be able to answer the questions to give your
11
opinions regarding this subject matter?
12
understand what I'm asking?
13
14
15
THE WITNESS:
Do you
Yes, Your Honor, I do.
Studies
of animal behaviors and the inherent uncertainty.

JUDGE WELSCH:
The animal behavior and inherent
16
uncertainty, is that part of that doctorate's degree
17
that you did, the studies that you did for the
18
doctorate's degree, part of the studies since you've
19
become assistant professor and then full professor,
20
tenured professor?
21
talking about?
Is that all part of what you're
22
THE WITNESS:
Yes, it is.
23
JUDGE WELSCH:
And, the studies, can you
24
describe what kinds of studies are you talking about?
25
Is it basically observational?
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THE WITNESS:
Yes, it is.
JUDGE WELSCH:
Is it observational based upon
the sea, in the ocean?
THE WITNESS:
Yes.
JUDGE WELSCH:
Is any of it based upon
observations of killer whales in park or aquarium
situations?
THE WITNESS:
No.
JUDGE WELSCH:
So, killer whales in the wild is
10
pretty much what you've observed?
11
THE WITNESS:
Yes.
12
JUDGE WELSCH:
Were any of your studies focused
13
on studying and detecting various behavioral aspects of
14
the killer whale?
15
THE WITNESS:
Yes.
16
JUDGE WELSCH:
How?
17
THE WITNESS:
If I may use a colloquial phrase,
18
Your Honor, the studies are mushy.
19
sense, that means --
20
21
22
In a scientific
JUDGE WELSCH:
That's not a real scientific
THE WITNESS:
No, it's not.
term.
I like to use it,
23
though.
When I was listening to Mr. Tompkins yesterday,
24
a lot of similarities, but the behaviors are contextual
25
in that they're not strongly determined.
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JUDGE WELSCH:
I don't want to go back to the
opinion.
you use in your observation/studies of killer whales?
What kind of methodology were you using?
I want to focus on is there a methodology that
THE WITNESS:
Your Honor, we used standard
behavioral methodology which requires us setting up
predetermined classes of behavior, linking those
theories and then recording the frequency of those
behaviors either singly or in consequence with each
10
11
other.
It's called an ethogram.
JUDGE WELSCH:
And, this methodology was what
12
you applied when you were making the observations of the
13
whales in the wild?
14
THE WITNESS:
Yes, sir.
15
JUDGE WELSCH:
How many hours would you say you
16
spent observing killer whales in the wild?
17
any sense?
Do you have
18
THE WITNESS:
It's thousands.
19
JUDGE WELSCH:
Do you make any recordings of
20
your observations?
21
THE WITNESS:
22
23
24
25
Yes, all the data, various kinds
of data is always recorded.

JUDGE WELSCH:
This operant behavior, am I
pronouncing that correctly?

THE WITNESS:
Operant conditioning.
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JUDGE WELSCH:
Operant conditioning.
I think
you indicated that was a recognized methodology -- I
don't know what you call it.
THE WITNESS:
Method.
JUDGE WELSCH:
Would you agree with that?
THE WITNESS:
Yes.
JUDGE WELSCH:
Have you applied that operant
8
9
conditioning in terms of your methodology?

THE WITNESS:
In a tangential way in that one
10
of the things we're interested in determining is killer
11
whales response to boats.
12
happening that links to operant conditioning is that
13
they may become used to them, either their physical
14
presence or their sound presence over time, and that's
15
kind of a conditioning.
16
conditioning, but it's got some aspects that are quite
17
similar.
18
19
JUDGE WELSCH:
One of the things that may be
It's not applied like operant
In your teaching, do you
recognize operant conditioning as a scientific method?
20
THE WITNESS:
I believe so.
21
JUDGE WELSCH:
And just for the uneducated like
22
me, can you give me something I can understand as to
23
what is meant by operant behavior or conditioning?
24
25
THE WITNESS:
Operant conditioning is where an
animal responds to a stimulus according to some -- it's
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1
2
implemented by the act of reinforcement.

JUDGE WELSCH:
But, in terms of your
methodology, you don't usually use this except in a
tangential way?
THE WITNESS:
Right.
JUDGE WELSCH:
What is the methodology that you
have been applying?
8
9
10
11
THE WITNESS:
Our methods are standard
behavioral observational experiences.

JUDGE WELSCH:
You called it something.
You had
to spell it for the Court Reporter.
12
THE WITNESS:
The tool was an ethogram.
13
JUDGE WELSCH:
Can you describe what an ethogram
14
15
is or what that means?

THE WITNESS:
Certainly, it's a vitally
16
important instrument in that the researcher must before
17
undertaking the study create a exhaustive and
18
non-overlapping set of behaviors so that you have in
19
front of you -- I've done this both with primates and
20
with whales -- you have in front of you a list of
21
behaviors that are likely to occur, and your study --
22
they will be pointed at your study.
23
For instance, if you are studying maternal
24
behavior and that list has to be simple and
25
straightforward, then what you merely do is you in some
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way, either through time or frequency of occurrence, you
measure how often that behavior happens and very
frequently you'll look at combinations of behavior.
4
5
6
So what it does is it supplies some rigor to your

just watching.
JUDGE WELSCH:
Have you applied that
observational methodology or tangentially the operant
conditioning to whales in a captive situation, whether
it be in an aquarium, a Sea World complex type
10
situation?
Have you applied that to those whales?
11
THE WITNESS:
No.
12
JUDGE WELSCH:
I guess the question I need to
13
ask, then, in terms of your giving an opinion, your
14
opinions are based primarily upon whales in the wild.
15
How do I relate to whales in captivity in terms of your
16
methodology?
17
THE WITNESS:
Your Honor, the strength of the
18
relationship has to do with the nature of scientific
19
principles.
20
in whatever the situation, the scientific principle
21
remains the same.
22
generalizable so the same kind of events, different
23
species or different settings, if it's underlain by a
24
scientific principle, would have constancy, a very
25
strong constancy.
Wherever it's applied to whatever species
A scientific theory is supposed to be
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JUDGE WELSCH:
So from your sense, the
behaviors that whales would exhibit in the wild would be
the same behaviors that whales would exhibit in a
captive situation?
THE WITNESS:
It was interesting refreshing
myself at the Sea World show.
trainers do with them are quite common behaviors in the
wild.
the jumping, pec slaps, tail slaps are all quite common
10
11
12
The things that the
The stimulus may be different, but the behaviors
in the wild.
JUDGE WELSCH:
Does that open any further
questions from either side before I take argument?
13
MS. GUNNIN:
14
15
additional questions, Your Honor.
16
JUDGE WELSCH:
17
BY MS. GUNNIN:
18
Q.
It does for me, Your Honor.

I don't have any
Ms. Gunnin?
Dr. Duffus, back in your deposition in
19
August, I asked you about captivity and whether or not
20
you had conducted any studies about behavior of killer
21
whales in captivity.
22
Do you recall me asking you that?
23
A.
Yes.
24
Q.
Have you conducted any studies about behavior
25
of killer whales in captivity?
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A.
No.
Q.
And, I also asked you if there were any
studies about killer whales being in captivity altering
the behavior.
Do you recall me asking you that question?
A.
I'm sorry, ma'am, I do not recall it.
Q.
Do you have an opinion about that?
A.
Could you repeat it, please?
Q.
Yes, whether or not killer whales being in
10
captivity alters their behavior in some way?
11
A.
I don't know.
12
MS. GUNNIN:
13
JUDGE WELSCH:
Ms. Gunnin, the Secretary has
14
offered Dr. Duffus as an expert.
15
objections?
16
17
MS. GUNNIN:
Do you have any
Yes, Your Honor, we do have an
objection.
18
JUDGE WELSCH:
Would you state your objection?
19
MS. GUNNIN:
With all due respect to Dr.
20
Duffus and his qualifications as a professor, we don't
21
dispute those, we don't think he's qualified to answer
22
what he has been proffered as an expert on, which is the
23
predictable behavior of killer whales and how it affects
24
safety.
25
He does not have any experience with any kind of
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studies of marine mammals in captivity, he does not have
any experience with the training of killer whales, he
does not have experience with operant conditioning and
killer whales, and we would object to his qualifications
as an expert.
It is a very different thing to observe killer
whales in the wild from 100 meters or ten meters away
versus actually interacting with killer whales, and to
provide an opinion about whether or not there can be
10
safe protocols in place for training killer whales is
11
certainly not a subject that Dr. Duffus has rendered any
12
opinions or conducted any studies on or has actual
13
experience doing.
14
of him as an expert.
So, we would object to the proffering
15
JUDGE WELSCH:
Back up one second.
16
You don't dispute his qualifications, or do you,
17
in terms of his studies involving the behaviors of
18
killer whales in the wild.
19
studies of behaviors of killer whales in captivity?
20
MS. GUNNIN:
You dispute it in terms of
Yes, Your Honor, because Sea World
21
is not involved with killer whales in the wild.
22
are in captivity.
23
JUDGE WELSCH:
Theirs
But, you don't dispute the
24
premise that he's qualified to at least talk about the
25
behaviors of killer whales in the wild?
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MS. GUNNIN:
I wouldn't dispute that, Your
Honor.
on killer whales in the wild because that's not an issue
in this case.
5
6
However, he's not being proffered as an expert
JUDGE WELSCH:
captivity.
MS. GUNNIN:
JUDGE WELSCH:
You're disputing it in terms of
Yes, Your Honor.

I'm just trying to get you to
agree with me.
10
Ms. Howard-Fishburne, do you have any response?
11
What I have to look at is, you know the Supreme
12
Court requires under Daubert, there are basically three
13
criteria that as the gatekeeper in terms of allowing Dr.
14
Duffus to testify, I have to be convinced that his
15
background, which would include education, experience,
16
skill and training meets the proffer that you made in
17
terms of offering him as an expert.
18
conclude whether or not Dr. Duffus's opinions are
19
reliable, and I have to consider whether or not they're
20
relevant to this proceeding.
21
22
23
24
25
I have to also
So, could you address those areas for me in terms

of how I should accept Dr. Duffus?
Can I just have a
moment?
JUDGE WELSCH:
Yes.
CARLIN ASSOCIATES
Do you want to take a
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quick break?
JUDGE WELSCH:
That would be good.
We're adjourned for five minutes.
JUDGE WELSCH:
Dr. Duffus, I'll remind you you're still under
oath.
10
Your Honor, in response
11
to Respondent's motion, Your Honor, the Secretary
12
submits that Dr. Duffus has 25 years of marine mammal
13
experience, Dr. Duffus has studied killer whales while
14
in the wild and not in captivity.
15
It's Dr. Duffus'
professional and educational
16
opinion that a killer whale from the wild and a killer
17
whale in captivity, their nature is no different.
18
I believe that based on his educational background
19
that has been presented that he meets those
20
qualifications and once he meets those qualifications,
21
Your Honor, I believe that it's then an issue of
22
credibility and weight as to the testimony that Dr.
23
Duffus will give, and despite the fact that Dr. Duffus
24
has not observed killer whales or done a study on killer
25
whales in captivity, that is no reason to exclude his
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1
2
testimony.
Dr. Duffus will give testimony, as we said
earlier, talking about the nature of a killer whale and
how it affects safety, essentially, expounding on the
questions that you were asking Dr. Duffus.
Dr. Duffus was essentially critiquing whether or
not Sea World's operant conditioning program keeps their
trainers safe.
JUDGE WELSCH:
Let me ask you, Ms.
10
Howard-Fishburne, the methodology that Dr. Duffus uses
11
is not the operant behavior he said he's used
12
tangentially.
13
I don't know if he's in a position to really
14
critique the operant conditioning methodology, or
15
whatever you call it, the method used by Sea World, and
16
I want to ask one other thing in terms of as it affects
17
safety because I didn't really explore this with Dr.
18
Duffus and I didn't really explore it with you, but I
19
think Ms. Gunnin raised it.
20
Are you intending to be asking opinions of Dr.
21
Duffus regarding changes in Sea World's protocol of how
22
the trainers are to interact with the whales in terms of
23
the safety to the trainers?
24
going to be asking him about, or just talking about the
25
unpredictability of whales?
CARLIN ASSOCIATES
Is that part of what you're
(216) 226-8157
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Do you understand what -- Mr. Black is kind of
looking at me.
not.
I'm not sure whether he understood or
MR. BLACK:
JUDGE WELSCH:
I'm sorry, Your Honor.

Do you understand what I'm
asking?
JUDGE WELSCH:
Yes, Your Honor.
There are two issues.
There
are a lot of issues in this case, but in terms of Dr.
10
Duffus -- and we're talking about how it affects safety
11
-- are the opinions -- and I don't know what these
12
opinions are, but the opinions that you're going to be
13
asking Dr. Duffus about, are they about the
14
unpredictability of killer whale behavior in terms of
15
that?
Is that part of it?
16
17
JUDGE WELSCH:
Yes, Your Honor.
Are you intending to ask Dr.
18
Duffus about giving opinions about physical changes that
19
Sea World might need to implement in terms of the
20
trainers' interactions with killer whales?
21
Your Honor, only as it
22
affects safety, I think both of those questions are
23
intertwined.
24
based on Sea World's training, I mean, they're training
25
their trainers to attempt to predict how the whale is
The predictability of the animals and
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1
2
going to behave which is affecting their safety.

JUDGE WELSCH:
I understand that, but to me,
that goes back to whether or not you can really train
killer whales that maybe by instinct it's unpredictable
behavior.
Dr. Duffus' role in that.
I can understand that, and I can understand
I guess what I was getting at is the other aspect
of a 5(a)(1) allegation is feasible means of abatement,
and that's why I was asking, are you asking Dr. Duffus
10
to express opinions or an opinion about feasible means
11
of abatement?
12
Yes, Your Honor.
We
13
would be asking him for his opinion as it relates to Sea
14
World's safety program.
15
have a witness that's going to testify regarding
16
abatement.
17
JUDGE WELSCH:
It's not the main part.
Then educate me.
We
What in Dr.
18
Duffus's background or resume gives him that kind of
19
skill to be able to give an opinion that I need to pay
20
attention to?
21
22
JUDGE WELSCH:
23
about, the second aspect.
24
first one enough.
25
being offered as an expert.
Yes.
So far as abatement?
That's what I'm talking
We have talked about the
Everybody has an opinion, but he's
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So, I'm just asking you, you didn't explore too
much with Dr. Duffus in terms of his background for that
opinion about feasible abatement methods, and you're
saying that you're going to be asking Dr. Duffus to give
an opinion about that.
background that gives him that opinion.
Tell me what is in his
Gives him that opinion?
All the years of experience of observing killer whales
in the wild in addition to his experience of being the
10
foreman on the Keltie Byrne coroner's inquest where he
11
actually had the duty along with others to review the
12
death of Keltie Byrne to make recommendations regarding
13
how that aquarium could improve its safety program and
14
how they could make the trainers safe.
15
JUDGE WELSCH:
Wait a minute.
We didn't go
16
too much into that coroner's inquest, but the bottom
17
line was the whale was removed.
18
correctly, they removed the whale.
19
Secretary's recommendation for abatement for Sea World
20
is not that they have to remove all the whales.
21
22
23
If I remember
Certainly, the
No, Your Honor.
I mean,
that was -JUDGE WELSCH:
That's what I understood from
24
that inquest.
The bottom line was that the aquarium
25
ended up -- did I misunderstand?
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1
2
I think so.
I don't
think that's --
JUDGE WELSCH:
Did I misunderstand that?
THE WITNESS:
There wasn't a recommendation in
the coroner's finding that they divest themselves.
was their own decision.
about safety.
8
9
JUDGE WELSCH:
That
We made several recommendations
They made recommendations for
whatever reason, which I don't know, and I'm sure Dr.
10
Duffus doesn't know, instead of going along with the
11
recommendations, they removed the killer whales.
12
13
I'll go back to the question.
Sea World to get rid of the killer whales?
14
15
JUDGE WELSCH:
No, Your Honor.
Okay, he was a part of a jury
16
that made recommendations.
17
of those were actually implemented.
18
OSHA is not asking
You can't show me that any
Your Honor, I think a
19
little after the coroner's inquest, the aquarium sort of
20
got out of the business, so I'm not particularly clear,
21
right.
22
I don't know.
JUDGE WELSCH:
I'm just going to the issue of
23
you're trying to elicit opinion.
24
accept Dr. Duffus as an expert in this area of feasible
25
abatement.
CARLIN ASSOCIATES
You're asking me to
(216) 226-8157
817
Correct.
He also has
experience, as he talked about, when he participated in
the conference regarding the Vancouver Aquarium
discussing again safety as well.
talked about earlier.
JUDGE WELSCH:
That was something he
Let me ask you, Dr. Duffus, what
in your background gives you the qualifications to
render an opinion about feasible means of abating safety
hazards involving killer whales in captivity?
Let me
10
just strike killer whales in captivity and let me just
11
say killer whales in the wild.
12
I'm assuming the boats going out to do the
13
observations, I don't know if the people in the boats
14
doing the whale observations, there was any concern
15
about their safety or not in dealing with the killer
16
whales in the ocean -- let me just do it a little bit
17
broader.
18
What in your background gives you the
19
qualifications to testify about safety measures that
20
should be taken in terms of interacting with killer
21
whales in the wild?
22
THE WITNESS:
The foundation is my experience
23
with whales.
24
logic which are an inherent part of scholarship.
25
The instruments are critical thinking and
JUDGE WELSCH:
The way I phrased it, do you
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1
2
view yourself is an expert in that area?

THE WITNESS:
Your Honor, I seldom use the term
expert because I feel I'm always learning, but I do have
experience that I believe bears directly on the issue.
JUDGE WELSCH:
Do you have personal experience
versus reading other maybe studies or reports?
kind of experience are you talking about?
8
9
Your Honor, could I ask
him a couple of questions?
10
JUDGE WELSCH:
11
12
so I apologize, Your Honor.
13
What
JUDGE WELSCH:
Not while I'm asking questions.

He's kind of stumbling
You don't understand the role.
14
I get to interrupt you, but I'm not sure you get to
15
interrupt me.
16
THE WITNESS:
My research results, my training
17
and my personal experience and try to use that as a
18
foundation to correctly analyze problems.
19
just problem solving.
20
21
22
23
JUDGE WELSCH:
Science is
Anything further, Ms.
Howard-Fishburne?
Could I ask a couple of
questions?
24
JUDGE WELSCH:
Yes.
25
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1
2
Q.
Dr. Duffus, you supervise graduate students
in your whale research lab?
A.
I do.
Q.
And, as a part of that activity, those
students actually go out and observe killer whales; is
that correct?
A.
Yes.
Q.
And, as a part of the process of supervising
those students, do you have to comply with certain
10
safety procedures related to your observations of the
11
whales?
12
A.
Yes.
13
Q.
And are those safety procedures communicated
14
to those students?
15
A.
Yes.
16
Q.
And, what safety procedures are followed?
17
A.
First of all, we're working in a vessel, a
18
hull.
19
the coast guard through a regular process.
20
Oceans of Canada regulate approach distance and
21
experience and common sense add, I think, the final
22
notch in keeping students safe.
23
Vessels of our nature are controlled rigidly by
Q.
Fisheries in
Do the students have specific rules as to how
24
close they can get to the killer whales that are out in
25
the ocean?
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A.
Yes, we follow the guidelines as proposed by
fisheries in oceans.
permit for close approach in a number of years, but if
we did, we would.
We have not had need to seek a
But, my students have to go through fairly
rigorous training.
season with me in terms of boating safety and boating
around whales and follow the regulations and any permit
regulations that might be.
10
Q.
They have to spend at least a full
And, if the whales get too close to the
11
students in the boats, are there any procedures that
12
have been implemented to keep the students safe?
13
A.
Well, what they do in close contact with
14
whales is they take the boats out of gear and shut them
15
down and wait for the whales to leave if they're
16
subjects of a data collection machine.
17
18
JUDGE WELSCH:
That's it, Your Honor.
Are you the one that sets up
19
these safety rules, or is that something that's by
20
Canada or the boating industry or whatever?
21
understand what I'm asking you?
22
THE WITNESS:
Do you
We have to follow rules that are
23
set up by institutions as well as my students have to
24
follow my rules.
25
JUDGE WELSCH:
You set up specific safety rules
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for your students to follow when they're doing these
whale observations?
THE WITNESS:
Absolutely.
JUDGE WELSCH:
What kinds of safety rules do you
5
6
set up?
THE WITNESS:
In terms of how close to
approach, when to shut off, when to leave.
operating the boat around whales has to be done with
extreme care.
10
Any behavior
I have other people's children out there,
and I'm extremely cautious.
11
JUDGE WELSCH:
12
Under Daubert, I have been charged with the
13
gatekeeper role in terms of determining whether or not
14
Dr. Duffus is recognized by this Court as an expert in
15
the area that the Secretary has identified, that being
16
the nature of killer whales in terms of predictability
17
of behavior as it relates to safety, and I think,
18
second, as to safety protocols in dealing with killer
19
whales.
20
the Secretary to be offering Dr. Duffus as an expert.
21
Thank you, sir.
Those are the areas in which I've understood
As I said, under Daubert, I'm supposed to look to
22
assure myself that he's qualified to make or to render
23
an opinion in those two areas.
24
25
With regard to the first area, the nature of

killer whales, I do feel that certainly Dr. Duffus is
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qualified to talk about the nature of killer whales in
terms for their predictability of behavior.
Now, certainly, his qualifications tend to go more
towards killer whales in the wild, which I recognize,
and I understand that the situation that I have before
me really deals with killer whales in captivity.
I think, goes more to weight.
8
9
That,
I'm not sure that I can draw a relationship

between captivity versus in the wild, but in terms of
10
Dr. Duffus' qualifications, I'm going to accept that
11
he's qualified to address that.
12
In terms of the safety precautions or safety
13
measures to be taken, there again, based on what he has
14
just testified to, I will accept him as qualified in
15
that area based upon his experience dealing with his
16
students in terms of dealing with killer whales in the
17
wild.
18
The next element I'm supposed to deal with is the
19
issue of reliability.
In other words, I'm finding that
20
Dr. Duffus is certainly qualified to render an opinion
21
in terms of those two areas.
22
reliability, back to the first element, the nature of
23
the killer whales, I think Dr. Duffus has established a
24
certain methodology that's been recognized by the
25
scientific industry in terms of giving reliability to
CARLIN ASSOCIATES
In terms of the
(216) 226-8157
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the opinion that he might render in this case.
In terms
of the safety precautions, means or measures, for the
purpose of this proceeding, I will accept that his
opinions are reliable based upon, I think he said, the
thousands of hours of observations, and I assume most of
those were in boats in dealing with safety.
Now, whether or not we can relate safety in boats
versus safety in the handling of killer whales in close
contact either in the water working with the killer
10
whales or on the sides working with killer whales, that
11
kind of interaction is different.
12
again, it goes more to what weight I will give Dr.
13
Duffus' opinion.
But, I think, there
14
Now, the final element is relevance, and,
15
certainly, if the opinions that he would be rendering
16
would be relevant to the issues of 5(a)(1) which is
17
before me.
18
So, that's accepted.
Anyway, the bottom line, I'm going to accept Dr.
19
Duffus as an expert in the two areas that I have
20
identified, based upon his qualifications, based upon
21
the reliability and based upon the relevance of the
22
issues, but I'm advising Counsel that what weight I'm
23
going to give those opinions, I don't know at this
24
juncture.
25
There are certain areas you're going have to
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establish and primarily how in the wild relates to in
captivity, and in the wild safety precautions relate to
the operation at Sea World in terms of Sea World's
interactions by the animal trainers with the killer
whales that they are interacting with, whether it be in
the water or on land or dry work.
will accept Dr. Duffus.
8
9
But, for this case, I
Okay, Ms. Howard-Fishburne, let's proceed on.
Howard-Fishburne, do you need to take a break again, or
10
can we go ahead and start?
11
going to deal with on your opinion?
12
sense?
13
14
Ms.
Do you know how long we're
Do you have some
Less than an hour, Your
Honor.
15
JUDGE WELSCH:
Because I would like to at least
16
get the Direct Examination for Dr. Duffus done tonight.
17
I will advise since everyone is here and I don't know
18
how things are going for tomorrow, I think tomorrow we
19
have been assigned to Courtroom 4B.
20
can move your material tonight after we adjourn the
21
hearing, and the Court Reporter can move her equipment
22
up this evening into the Courtroom B and we can use
23
that.
24
25
For Counsel, you
Also, when we end this proceeding this evening,

I'm to be talking to both Counsel in terms of how much
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longer it appears for everyone else.
going to have to reconvene this hearing after tomorrow.
We will have to come back for some other days.
changed?
MS. GUNNIN:
JUDGE WELSCH:
My sense is we're
Has that
No, Your Honor.

So, I'm going to be talking to
Counsel about what we plan for tomorrow, how much we're
going to spend tomorrow because I don't want to break a
witness in the middle and come back, but for me
10
personally, I cannot come back next week.
11
to be sometime based on the Counsel's schedule and my
12
schedule sometime later in October, November.
13
need Counsel to look at their calendars because I want
14
to come back as early as possible to finish this
15
hearing.
16
17
We're adjourned for ten minutes.
It will have
But I
Be back at 20
after four.
18
19
20
JUDGE WELSCH:
21
Dr. Duffus, I remind you you're still under oath.
22
MS. GUNNIN:
I would just like to state our
23
objection to Dr. Duffus' qualifications as an expert in
24
this case.
25
JUDGE WELSCH:
That's fine and I will state on
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the record, Sea World filed prior to this hearing, a
motion to exclude Dr. Duffus' testimony, and so for the
record, that motion is denied.
You may proceed.
Q.
Okay?
Good afternoon again, Dr. Duffus, we're going
to talk a little bit about the opinions that you've
rendered in this case.
opinion in this case; is that correct?
You have issued a written
10
A.
Yes, it is.
11
Q.
And, the question you were asked to review
12
was whether it is safe for aquarium workers to work in
13
the pools or near the edge of the pools; is that
14
correct?
15
16
MS. GUNNIN:
use of leading questions of their expert witness.
17
JUDGE WELSCH:
18
19
Sustained.
Your Honor, may I
approach?
20
JUDGE WELSCH:
21
22
23
24
Q.
25
Yes.
Dr. Duffus, can you identify the document
that's been marked as C-12?
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1
2
A.
Yes, it is the report I supplied to the OSHA
office.
JUDGE WELSCH:
I'm sorry?
THE WITNESS:
The opinion I supplied in
response to the request.
JUDGE WELSCH:
I want to make sure one thing is
clear on the record.
resume that's at the end of this document?
9
10
11
12
THE WITNESS:
Your curriculum vitae or your
A very abbreviated version, sir.
Yes, Your Honor, a
summary of his background starts at Page 19.

JUDGE WELSCH:
Ms. Howard-Fishburne, I always
13
find it very helpful, particularly when you're dealing
14
with an expert that you provide a copy of the resume or
15
curriculum vitae be attached as an exhibit.
16
do that in this case, but I notice in part the report
17
there is a part of it, as Dr. Duffus says, a very
18
abbreviated version of his resume.
19
20
21
22
You didn't
The parties exchanged
curriculum vitaes.
JUDGE WELSCH:
before me.
The parties' exchange is not
You're asking me to make a decision.
23
Go ahead, you may proceed.
24
25
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1
2
Q.
Is this the written report that you provided
to the Secretary?
A.
Yes, it is.
Q.
You were asked to look at a specific question
related to killer whales and trainers?
A.
Yes.
Q.
What was that question?
A.
The question I was asked --
Q.
If you would turn to Page 2.
10
MS. GUNNIN:
Judge, does the witness not have
11
an independent memory and he's refreshing his memory or
12
is he simply going to read his report?
13
JUDGE WELSCH:
Dr. Duffus, the question is,
14
what were you asked or what opinions or what area or
15
opinions were you asked to render?
16
THE WITNESS:
The question stated is it safe
17
for trainers to work in the pools or near the pool
18
ledges with killer whales.
19
20
Q.
And, as a part of looking at that question,
21
you looked at the various documents that we discussed
22
earlier?
23
A.
Yes, I did.
24
Q.
And, as a part of your review, did you
25
consider the different performances that the Sea World
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trainers engaged in?
A.
Yes, I did.
Q.
And, you reviewed videos of those
performances?
A.
Yes, I did.
Q.
And, you also reviewed -- did you review
animal profiles separately?
A.
Yes, I did.
Q.
And, you reviewed the incident reports?
10
A.
Yes.
11
Q.
And, as a part of your opinion, did you
12
consider the issue regarding the predictability of
13
killer whales?
14
A.
Yes.
15
Q.
Can you tell us what opinion you drew as it
16
relates to the predictability of killer whales behavior
17
at Sea World?
18
A.
My opinion is that there is a certain level
19
of predictability that training procedures do provide
20
predictable outcomes.
21
Q.
And, those training procedures you're
22
referring to, you're talking about Sea World's Standard
23
Operating Procedures?
24
A.
Yes.
25
Q.
Do they provide predictability with
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certainty?
A.
I don't believe so.
Q.
Can you tell the Court why you reached that
4
5
conclusion?
A.
The reason I draw that conclusion is that
there is a natural level of uncertainty inherent in any
animal's behavior, and that goes to wild and domestic
under any kind of regime.
and we've seen examples.
10
Q.
There is always uncertainty
When you say there's always uncertainty with
11
animals, specifically the killer whales, you were
12
reviewing the behavior of a killer whales; is that
13
correct?
14
A.
Yes.
15
Q.
In your experience in observing killer whales
16
in the wild, is that how you were able to draw your
17
conclusion with regard to the predictability of killer
18
whales in captivity?
19
20
MS. GUNNIN:
continuation of the leading questions.
21
JUDGE WELSCH:
22
23
24
Q.
25
Rephrase your question.

Sure, Your Honor.
We were talking about predictability, and you
drew certain conclusions regarding predictability; is
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that correct?
A.
Yes.
Q.
And, can you explain to the Court your
4
5
experience in observing killer whales in the wild?

A.
Killer whales in the wild demonstrate a wide
repertoire of visible behaviors that occur under a
variety of stimuli.
predictable than others.
Some of the them seem to be more
In long term systematic studies that I
10
hypothesize were stimulus in response that was
11
continually befuddled by the uncertainty.
12
Q.
And, when you observed killer whales in the
13
wild, what kinds of behaviors or activities did you
14
actually see killer whales engage in?
15
A.
Some of the particular things we studied were
16
swimming speed, directionality, inter-animal spacing in
17
pods and a variety of aerial behaviors, including
18
reaches, pectoral flipper slaps, fluke or tail slaps,
19
social interaction or visible physical interactions
20
between animals.
21
22
Q.
And, you reviewed videos related to this
case; is that correct?
23
A.
Yes, I did.
24
Q.
And, did you observe some of the same
25
behaviors in the video that you reviewed?
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A.
Yes, I did.
Q.
Did you observe some of the same behaviors
that you just discussed when you went on your site visit
as well?
A.
Yes, I did.
Q.
You testified that you reviewed the incident
reports; is that correct?
A.
Yes, I did.
Q.
And, you reviewed incident reports from -- do
10
11
12
13
14
15
you recall what years they were?

A.
I believe the earliest was 1988.
I could be
wrong, but I think the final one was 2009.

Q.
After reviewing those incident reports, what
did you discover from them?

A.
The incident reports report a variety of
16
interactions where it appears that the whale didn't
17
respond in the way the trainer expected them to.
18
19
20
Q.
Why did you draw the conclusion that the
whale didn't respond in the way the trainer expected?

A.
Well, it seems to me the incident that
21
resulted in the trainers and staff thought the incident
22
was important enough to report it.
23
24
25
Q.
Did you review the incident report relating
to the Ken Peters incident?

A.
Yes, I did.
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Q.
And, you also saw the video?
A.
Yes, I did.
Q.
And, when you reviewed the incident report
relating to that incident, what did you conclude about
that?
A.
It didn't appear there was a clear or clearly
interpretive precursor by the on-lookers and that the
start of the negative interaction was unexpected.
9
10
Q.
Had you ever seen that type of behavior of a
killer whale in the wild?
11
A.
Yes.
12
Q.
And, what about -- can you explain that a
13
little?
14
to you appeared similar to what you reviewed in the Ken
15
Peters incident?
16
Like, what about your observations in the wild
A.
For quite some time, I've worked with my
17
younger colleague who was studying the predatory
18
behavior of transient killer whales, and I've seen them
19
do much the same thing on several occasions where
20
they'll take a seal or a porpoise, hold it under water
21
and apparently release it because the animal reappears.
22
23
24
25
Q.
You also reviewed the video related to the
Dawn Brancheau incident; is that correct?

A.
I reviewed the same video that was shown
here, yes.
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Q.
And, in your experience of observing killer
whales in the wild, did you ever experience similar
situations?
A.
In the Dine With Shamu show, certainly the
behaviors are quite consistent with killer whale
behavior in the wild up to the end of that video, I have
never seen people interact like Ms. Brancheau was
interacting with the whale at the end with the jumps and
the leaps, but the surface behaviors are quite common.
10
11
12
Q.
When you say the jumps and the leaps, when
are they quite common?

A.
That's an interesting question that part of
13
when I say the research befuddled me or when I use the
14
term was mushy, is they do that under a number of
15
circumstances.
16
earlier -- precursive behavior on the surface where an
17
animal will continue to slap a part of its body seem to
18
occur in our database as frequently, for instance, with
19
boats as without boats.
20
that after years of seeing them as, if I can borrow a
21
term from yesterday's testimony, quite contextual.
22
can be caused potentially, I would guess, by a number of
23
stimuli.
24
Q.
25
Originally -- and there was a comment
I tend to treat a behavior like
It
Do you have any -- in your years of
experience of observing killer whales in the wild, do
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you have any -- does your experience tell you or give
you any information regarding why the killer whale is
behaving in a particular manner?
A.
Aside from highly directed behavior which
particularly means obtaining pray.
have always found extremely difficult.
7
8
Q.
The why questions I
And, why have you found them extremely
difficult?
A.
I tend to follow most killer whale
10
biologists.
11
whales are always seeking food, and in doing so, they
12
using their variety of sensory systems, and an
13
environment that is largely opaque to us.
14
I know in my interpretation that killer
So, they could be responding to stimuli, they
15
could be seeing fish, they could be picking up fish in
16
their sonar, they could be seeing reflections of fish at
17
quite a distance, and they could alter their behavior,
18
or they could try and alter their group's behavior if
19
there is a social component according to stimuli I can't
20
see.
21
Q.
Is there any scientific information regarding
22
knowing what a killer whale is thinking or why a killer
23
whale behaves in a particular manner?
24
25
A.
That's interpretable.
I distance myself from
any interpretation that causes us to interpret the
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whales' internal mental processes.
opaque to science.
I think that's an
Q.
Can you explain that a little?
A.
Sure.
You can't get in the mind of a killer
whale.
is a response to a stimulus, but my experience with
killer whales says that how they see stimulus, how they
hear, how they feel it is quite likely very different
than our interpretation.
10
11
You may see stimulus response which you believe
So, what goes on in a killer
whale's mind is difficult scientifically.

Q.
Do you disagree -- you talked about earlier
12
when the Judge asked you some questions about operant
13
conditioning.
14
A.
Can you just explain again what is that?
Operant conditioning is when you supply a
15
stimulus and you expect a response.
Do you wish me to
16
expound?
17
Q.
Yes.
18
A.
The operant conditioning, the primary
19
currency of the conditioning is food.
20
animals need food, whether they're in the wild or in a
21
captive state.
22
beyond food, and things can get complicated, but that's
23
the general sequence is you offer a food reward when the
24
behavior is successful.
25
Q.
Fundamentally,
Some forms of operant conditioning go
So, you're not testifying that operant
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1
2
3
4
conditioning doesn't work, are you?

A.
Oh, no.
Operant conditioning does work in
many, many cases.

Q.
And, from your review of the documents and
videos in this case, how does Sea World use operant
conditioning?
A.
From my review of the documents and from site
visits and from being a visitor at Sea World and other
aquariums, when it comes to a show where they're
10
producing behaviors for an audience, the primary
11
reinforcer is food, and they do use some different
12
reinforcers as well.
13
14
15
Q.
What other reinforcers do they use; do you
recall?
A.
From reading the literature, they believe
16
that certain kinds of contact are secondary reinforcers
17
that reward the animal for performing, and they also use
18
an idea called least reinforcing stimulus and
19
reinforcement schedules which are actually terms that B.
20
F. Skinner himself, the mid-century psychologist brought
21
to the fore, and these are ideas that Sea World and I
22
think most aquariums and, in fact, in most cities with
23
captive animals, they don't use negative reinforcement
24
anymore which was the removal of food or some other
25
negative activity or that they presumed that the animal
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would interpret as negative that that's completely out
the window and has been for some time.
positive reinforcement and the short end of the stick,
they have what they call their least reinforcing
stimulus which is an idea that you give the animal
nothing and that they interpret the nothing.
Q.
So, it's always
To give them nothing, is that to encourage
the positive behavior so they ignore the negative
behavior?
10
11
A.
Is that your understanding?

My understanding is it almost resets the
clock.
12
Q.
For the next behavior?
13
A.
Yes.
14
Q.
A part of Sea World's training program is
15
predictability of frequency of interactions.
16
Did you render an opinion regarding whether
17
the Sea World trainers are able to predict behavior,
18
based on the frequency of their interactions with killer
19
whales?
20
A.
I did form an opinion, but it's not terribly
21
clearcut in terms of what that probability distribution
22
is.
23
the frequency of a favorable response, and there is no
24
particular level or metric unless you were to go on and
25
study and create a frequency distribution, but it
Skinner himself said that reinforcement increases
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increases the frequency of good responses, and I gather
that's what the repeat training when they train a whale
up for a certain behavior, they try to increase the
frequency to a level where it's reliable enough to go in
shows.
Q.
And, you've heard testimony where Sea World
talked about the fact that they have had over a million
interactions with the killer whales?
A.
Yes, I did.
10
Q.
And, that they have only had just a few
11
incidents.
12
Do you have any opinion regarding whether the
13
frequency of the contact with the killer whales and the
14
trainers, whether that reduces the risk to the trainers;
15
say the risk of harm to the trainers?
16
17
18
A.
Are you speaking of the concept of
de-sensing?
Q.
The concept that if the trainers are
19
constantly interacting with the killer whales, then it's
20
less likely that there's going to be an incident?
21
A.
So, if the whales are familiar with the
22
trainers, it reduces the likelihood of them doing
23
something negative to them?
24
Q.
25
to know?
Or that they would be able to read the whale
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A.
Certainly, the predictability would rise.
Q.
So the predictability would increase?
A.
Would increase, yes.
Q.
Do you have any opinion regarding -- is this
5
6
a fool-proof program?
A.
I guess that's where I diverge from that
particular viewpoint.
brings predictability up to a certain level, but I guess
the incident reports are the examples where the
10
It increases the frequency -- it
prediction didn't quite work.
11
Several times during testimony, we've talked
12
about precursors, and precursors are a tool for
13
prediction.
14
that at one point that behavior generally leads to
15
another behavior.
Behaviors are in a sequential string, and
16
In a lot of the incident reports, you see --
17
and I guess this is arguable -- you see that precursors
18
weren't quite visible or didn't occur.
19
Q.
And, when you're saying -- I hear your
20
response, but I guess my question is the fact that Sea
21
World has this program which sort of -- they're
22
explaining the fact that they're able to predict what
23
the whale is going to do based on these prior
24
experiences, what is your opinion regarding that?
25
A.
My opinion is that there's always going to be
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an uncertainty.
2
3
Q.
Is that because we can't predict what the
whale is going to do?
A.
That's the level at which you can predict it.
Q.
Based on your training and experience, have
you been able to predict whale behavior with certainty?
A.
No.
Q.
What is your opinion regarding Sea World has
killer whales at their facility that's been testified
10
to, and the animal trainers are training the killer
11
whales, and I guess my question, Dr. Duffus, is a killer
12
whale is a dangerous animal; you would agree?
13
A.
It certainly can be, yes.
14
Q.
Do they ever stop being a dangerous animal?
15
A.
The fundamental nature of an animal is a
16
product of evolution.
17
animal.
18
ones that make the animal successful.
19
Long time periods create an
Behaviors that are maintained in an animal are
Through time, behaviors become ingrained in
20
the animal and that becomes what we call instinct.
21
animals have a suite of instincts and, of course,
22
they're tied to survival.
23
24
25
Q.
And, what instincts does the killer whale
A.
Well, killer whales are in most instances
have?
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So,
842
what we call an apex predator.
the food chain.
that, their mobility from a regulation size, so their
behavior is that of an apex predator also.
more selective.
whales through evolutionary time and through day-to-day
life is their need to fulfill their food requirements.
8
9
10
Q.
They're at the top of
All their physical biology speaks to
They can be
One of the things that drives killer
What is your opinion regarding whether
training can diminish the predatory nature of a killer

whale?
11
A.
Interesting question.
Considering that as
12
witnesses have pointed out in this box, that they do
13
have many, many successful encounters with a potentially
14
dangerous predator.
They can diminish day-to-day
15
predatory activity.
How much of that is because of
16
satiation which is the whale is full.
17
18
Q.
When you say the whale is full, what do you
A.
Because it's fed.
mean?
19
20
food.
21
the nature of a predator.
22
Predatory behavior gets
If they have food, they may not seek it.
Q.
That's
Sea World's training program and their
23
procedures are based solely on their observations of the
24
killer whale.
25
observe and interact with the killer whale at Sea World?
Is that your understanding; that they
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1
2
3
A.
That's what it looks like, and that's how it
was described in Court, yes.

Q.
Is it scientifically reliable to base
conclusions regarding the killer whale on just
interactions between the killer whales and the trainers?
A.
That's an interesting question because in
science we respond to two types of concluding
mechanisms.
gobble-de-gook, but if you base your conclusion only on
I don't want to make this philosophical
10
your observations, you can't extend that conclusion
11
beyond your observations.
12
thousand cases and your conclusion is based only on the
13
internal thousand cases, you cannot make a logical
14
inference about 1,001.
15
it's a problem.
16
is when you have a theory that describes the underlying
17
process.
18
That is, if you see a
That's inductive thinking and
Deductive thinking, on the other hand,
You make a hypothesis and then you test it.

The problem with induction is if your
19
understanding is based purely on observations, all it
20
takes is one contrary observation, then you have to toss
21
your process out.
22
Q.
So, do you agree with the premise that if Sea
23
World has observed a behavior of a killer whale a
24
thousand times and they want to then say they should
25
know what the 1001st time is going to be, do you agree
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with that premise to the extent that Sea World is simply
basing their conclusions on observations?
A.
significantly.
Q.
6
7
8
It leaves you open to an error fairly
When you say it leaves you open to an error,
what do you mean by that?

A.
Well, it's classically called a fallacy of
induction.
Let me rely on my experience here.

People say that something happens and they
10
have never seen it before.
11
Court.
12
Keltie Byrne matter.
13
never seen that before.
We've heard that in this
We've heard that in coroner's inquest into the
14
It was said in both places, "We've

We didn't expect it."
That causes me a great deal of difficulty
15
because we're dealing with a large predatory animal, and
16
because of the way you have constructed your
17
interpretation of it, you don't expect it to behave like
18
a predator.
19
Q.
I'm not sure that's wise.
When you say you've heard it in both
20
situations, can you explain?
21
was the other situation you're referring to.
22
A.
You mentioned Keltie Byrne
Well, the reason we're here today.
I don't
23
think anyone projected or expected, predicted what
24
happened to Ms. Brancheau.
25
Q.
When you say "anyone," you're talking about
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Sea World; that they didn't predict that?
A.
Yes.
Q.
What is your understanding of what occurred
They didn't as far as I know.
on February 24, 2010?
A.
Well, I've heard the evidence.
The behaviors
that have been described throughout all the material
supplied to me before this hearing, looked like a large
predatory animal for whatever reason -- and I don't
interpret the reason at all -- undertook a behavior.
10
Externally, it doesn't look too different from the kinds
11
of behaviors that we see that ended in the catastrophic
12
conclusion, whether there's -- whatever stimulus
13
occurred, the facts are that's what the whale did.
14
15
16
Q.
What is your understanding of what the whale
A.
That it pulled Ms. Brancheau into the water,
did?
17
pulled her under, released her and then recovered her
18
and through some process, which is a little hard to tell
19
from the medical examiner's report.
20
doctor and, frankly, I find those things extremely heart
21
rendering to read, she died.
22
Q.
I am not a medical
So, when Sea World says that they did not
23
predict that Tilikum would engage in such a behavior,
24
what is your opinion of that?
25
A.
Reading through all the Tilikum material, I
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get a feeling of cross purposes.
in a set of regulations and a special chapter discussing
Tilikum, and they're very clear about not interacting
with Tilikum under certain conditions that they believe
are the danger zone.
event with Ms. Brancheau strikes a dissident chord with
me because she was in a position where she was within
easy reach of the whale.
I mean, Sea World put
But, the conditions before the
So, I can't match these two things up.
10
know about Tilikum's history with Keltie Byrne, and I
11
sat through the hearing and heard it.
12
killer whales undertake this behavior with a variety of
13
wild pray.
14
So, I'm at a loss.
I have seen other
I'm at a loss in two
15
ways.
16
somebody even said he was a good boy.
17
trainable.
18
everybody knew not to test him, not to get into the
19
water with him.
20
know Tilikum did not return objects.
21
was possessive.
22
reading through the material, that's what caught me.
23
That here is an animal who has created an act so he's
24
opened up the world of possibilities.
25
Everybody else has said Tilikum is -- I think

"He's very
We've never seen anything like this."
Yet,
There was a statement made that they
Interesting term.
I think the term
Whenever I was
Remember, when this event happened with
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Keltie Byrne, I don't think there is a reliable record
in history of a killer whale killing a human, and
everybody was aghast.
that was the last thing in the world they expected.
That surprised me, but that was people's opinion.
here we are again this many years later, and everybody
is saying the same thing, "we didn't expect it."
8
9
Q.
We had witnesses come and say
And,
When you say, "this many years later," the
Keltie Byrne incident, what year did that occur?
10
A.
1991, I believe.
11
Q.
And, you also mentioned that it surprised
12
you.
Who surprised you?
You just said "they."
13
A.
Witnesses, trainers, aquarium staff.
14
Q.
And, that was from Sea Land?
15
A.
Yes.
16
Q.
In your opinion after looking at the history
17
of Tilikum, his animal profile and what you knew about
18
Tilikum, did his behavior on February 24, 2010, seem to
19
be special just to Tilikum?
20
is, is that something you would expect from any killer
21
whale?
22
A.
I think what I'm getting at
It's a difficult question and I address in my
23
report.
Is Tilikum a sufficiently special case, or is
24
he an exemplar of the broad range of possibilities for
25
any killer whale?
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The testimony in reading the incident reports
makes me quite anxious about suggesting that Tilikum is
the only player when it comes to potential human death.
So far, he is.
are likely idiosyncratic individual to the whale, but
now we have Keto, a different type of situation, and we
have a small handful of other situations.
argue that these are rare and that successful
interactions outnumber unsuccessful ones.
There are some elements of Tilikum that
And, I don't
10
What worries me and from my viewpoint if I
11
were a risk analyst, the difficulty, the injuries are
12
rare.
13
whales and the nature of their aquatic environment and
14
humans, the potential for an incredibly severe
15
catastrophe tells you that the risk is higher than the
16
mere probability of the negative versus positive event.
17
If it only happens once in a million, but if
18
in that millionth time, the outcome is a catastrophe, I
19
think it goes beyond the probability issue.
20
Unfortunately, because of the nature of killer
Q.
So, is it your opinion that the events of
21
February 24, 2010, were foreseeable or should have been
22
based on Tilikum's history?
23
A.
I believe that if people knew about Tilikum's
24
history, that they could certainly predict the
25
possibilities.
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1
2
Q.
Is that because Tilikum had already been
involved in prior deaths?
A.
Precisely.
Q.
You reviewed the citation in this case; is
that correct?
A.
Yes, I did.
Q.
And, what was your understanding regarding
8
9
what OSHA cited Sea World for?

A.
The way it read, it said that it was a
10
willful act, and that I believe it's limited -- you may
11
have to correct me -- that it had to do with performance
12
and a failure.
13
Q.
I'm sorry, you said a failure?
14
A.
A failure of the training regime or the
15
failure all any kind of regime to protect Ms. Brancheau
16
under normal working conditions.
17
18
19
Q.
And, part of that failure was Ms. Brancheau
working in close proximity to Tilikum?

A.
That again caused me some consternation
20
because I read -- Sea World courteously supplied all
21
their regulations and all their rules about Tilikum, and
22
as far as I could tell, what she was doing was not in
23
violation of those rules, or if it was, none of the
24
people who observed it considered it to be unusual.
25
So, I don't hazard a guess at which it is.
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just see the simple fact that Ms. Brancheau was in close
enough proximity for Tilikum to seize her.
3
4
5
6
Q.
What is your opinion regarding animal
trainers working in close proximity with killer whales?

A.
I believe that the uncertainty element of
killer whale behavior creates a hazard.
Q.
And, what do you base your opinion on?
A.
We have seen negative interactions.
Q.
When you observe killer whales in the wild,
10
do you have close contact with the whales?
11
A.
Do you mean close physical contact?
12
Q.
Close physical contact.
13
A.
We're in proximity but, no.
14
Q.
Do you permit the students to get close
15
enough to touch the whales?
16
A.
Oh, no.
17
Q.
Why do you not allow your students to come in
18
19
close proximity with a killer whale?

A.
Killer whales are a large predator.
Killer
20
whales in our area, a good proportion of our sightings
21
are those which take marine mammals.
22
hunting predator which means there's quite a lengthy
23
coordination amongst individuals in the group that is a
24
kind of interpretation of social predators.
25
They're a group
I would not myself nor would I allow my
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students to be in close proximity to wild killer whales
where they could be seized.
Q.
Based you your experience with killer whales
and your observations of killer whales, is there any --
does the likelihood of the killer whale attempting to
attack a person change if the killer whale is in
captivity?
8
9
A.
I don't know.
I would hazard a guess as to
whether the conditions of the captivity would cause it.
10
The fundamental fact with captivity is the proximity.
11
I'm not going to get into any aspect of behavior or the
12
behavioral change or the nature of killer whales in
13
captivity being different.
14
is simple proximity.
15
16
When you say, "simple proximity," what do you
A.
If you're close to a killer whale, they can
potentially inflict harm.
19
20
Q.
mean?
17
18
The fact of the matter is it
Q.
And, that's whether they're in a captive
environment or in the wild?
21
A.
In a captive environment, we have examples of
22
it.
I can't think of a situation in the wild where we
23
have examples, but maybe I'm just practical.
24
would be complete folly to put yourself in close
25
proximity to wild killer whales where they could seize
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I think it
852
1
2
you or knock you into the water.

Q.
You have heard a lot of testimony regarding
aggression.
February 24, 2010, what did you determine Tilikum's
behavior to be?
A.
Based on your review of the incident on
If I could back up for a minute, I see there
are differing opinions on the definition of aggression.
From any viewpoint, aggression is a natural component of
predatory behavior.
I don't suggest anything to do with
10
precursors or mental state of the animal.
11
the fast movement, the seizing of pray, or other items,
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I guess.
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but to me, aggression is what allows a predator to do
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business.
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Aggression is
I don't have too much experience with that,
They are naturally aggressive organisms.

I think the aggression that people are
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talking about in the incident reports appears to have a
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narrower definition than that.
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Q.
Do you agree with the definition?
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A.
No.
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Q.
So, did you conclude whether Tilikum engaged
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in aggression on February 24th?

A.
From what I know of it, it certainly appears
to be aggression, yes.
Q.
And, that aggression you observed with
Tilikum, is that similar aggression that you observed in
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killer whales in the wild?
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A.
On the surface.
The outward appearance of
behavior is not dissimilar.
Q.
In reviewing Sea World, I think you called it
training, but the training on protocols, did you draw a
conclusion regarding whether it's safe for trainers to
be in close proximity to killer whales?
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A.
In my opinion and it's highly conservative.
I believe that it's safer to not be in proximity.
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believe that the guarantee of safety is strong behind a
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barrier or some other mechanism.
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Q.
You said that your opinion is conservative.
What did you mean by that?
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A.
In going through and listening to the
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testimony and going through all the documentation, other
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people interpret it to be a safe activity to be in close
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contact with killer whales.
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Q.
What is your opinion regarding whether Sea
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World could have avoided the incident on February 24,
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2010?
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A.
I guess simply stated if Ms. Brancheau was
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not available in proximity to be taken into the water,
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it would have not have happened.
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Q.
You mentioned veterinarian care and husbandry
care in your opinion.
Can you explain what, if any,
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opinion you gave in your opinion regarding veterinarian
care?
A.
Being that that wasn't part of the original
scope, I understand Sea World's position that they need
to employ close contact to undertake husbandry
activities for the health of the individual animals for
processes that allow them to reproduce killer whales and
possibly for transportation purposes.
things that Sea World does.
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Those are common
I think that suggests that those things could
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be done with -- this is what other Counsel brought up a
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few minutes ago, this could be done by a number of ways
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by Sea World to change the conditions of contact with
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animals under husbandry care.
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Q.
Did you render an opinion -- what was your
opinion regarding Sea World's water work program?

A.
The water work program puts trainers in close
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proximity to whales under a variety of conditions.
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There is an inherent risk.
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Q.
Is there in your opinion any safe way to
perform water work as Sea World defines water work?
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A.
Absolutely safe?
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Q.
A couple more questions, Dr. Duffus.
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No.
Do you have an opinion regarding how the

proximity of the trainers with the killer whales affects
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Sea World's training?
A.
Well, we have been hearing the argument that
their training regime is a regime that involves close
proximity contact, lots of what they call physical
reinforcement.
As the witness was describing this morning, a
thing called face time and contact with the pectoral
flipper.
close contact.
I think the regime as they've used it mandates
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Q.
What is your opinion regarding that close
11
contact?
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A.
It's got risk.
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Q.
And why do you say that?
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A.
We've seen the result.
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this room today.
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was.
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up with a catastrophe.
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That's why we're in
There was a risk, however small it
The risk was exploited by the whale, and we ended
Q.
That's an undeniable fact.
And, the risks that we were just discussing,
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those risks apply to Tilikum as well as the other whales
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at Sea World?
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A.
That's a difficult question, and to be fair,
22
we have only seen it with Tilikum.
Can we isolate
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Tilikum as an individual organism from the remainder of
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killer whales and the remainder of killer whales in
25
captivity.
It's a hard question to know for sure.
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answer will have a high degree of uncertainty, but the
reason that the whole set of events concerns me are the
admittedly small but also potentially very dangerous
events that cause injury.
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Q.
Is the fact that you said the risk is small a
reason not to address the risk?

A.
I guess that goes to the issue of
amelioration as abatement.
accept?
How much risk do you want to
This is something that is not up to me, but you
10
have to look at what the cost and benefits of risk
11
amelioration is.
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careful, given the potential outcome of not being
13
extremely careful?
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What does it cost to be extremely
Let's say that you keep trainers absolutely
15
and unequivocally out of the reach of the whales.
16
There's still a small risk that somebody would fall and
17
tumble in the direction.
18
hypothetical scenario, but the risk would be set aside.
19
And, why do you set risks aside?
20
entertain the cost and because the potential of not
21
doing so is a catastrophe.
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a question that I guess Sea World will ask and has been
23
asking itself.
24
and the whales distant enough so that the chance of a
25
repeat of this is reduced or non-existent.
Granted that's a small
Because you can
The logic is clear.
This is
What is the cost of keeping the trainers
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I don't have any other questions, Your Honor.
JUDGE WELSCH:
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Ms. Gunnin, do you have some
sense of your Cross-Examination?

MS. GUNNIN:
It's going to be for much longer
than the time we have left.
hour to an hour and a half.
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Thank you.
JUDGE WELSCH:
I would estimate maybe an
But we will be able to finish Dr.
Duffus tomorrow?
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MS. GUNNIN:
Yes, Your Honor.
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JUDGE WELSCH:
Do you want to begin your
12
examination and then stop at around 5:00, or would you
13
rather complete it?
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MS. GUNNIN:
15
and finish at one time.
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No, Judge, I would prefer to start
JUDGE WELSCH:

Thank you.
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---o0o---
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(Whereupon, the proceedings
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this 16th Day of December 2011, A.D.
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BY:__________________________
Norma Carlin
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----------------------------------- x
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SECRETARY OF LABOR,
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Complainant,
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-vs)
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Respondent,
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------------------------------------x
OSHRC DOCKET
NO. 10-1705
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VOLUME V.
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Before:
Judge Ken S. Welsch
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Date:
Friday, September 23, 2011

9:00 a.m.
Place:

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APPEARANCES:
JOHN BLACK, ESQ.
Suite 7T10
(404) 302-5435
Suite 2400
(404) 525-8622
GEORGE COE, ESQ.
JON L. MILLS, ESQ.
KAREN DYER, ESQ.
Suite 840
407-425-7118
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I N D E X
WITNESSES
Name
Duffus
Grove
Direct
Con't) 862
917
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864
938
Redirect
Recross
899
967
909
-
---o0o---
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Cross
EXHIBITS
Complainant's
Description
Marked
Admitted
C-13
Duffus CV
C-12
Respondent's
863
-
864
864
R-5
940
971
AZA Standards
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Morning Session
9:00 a.m.
JUDGE WELSCH:
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Sir, I'll remind you you're still under oath.

may be seated.
Before we start the Cross-Examination, Ms.
Howard-Fishburne?
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---o0o---
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DR. DAVID A. DUFFUS,
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having been previously duly sworn,
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continued his examination as follows:
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---o0o---
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Q.
Dr. Duffus, good morning.
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A.
Good morning.
22
Q.
Yesterday, I asked you a lot of questions
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You
regarding your background.

When you were hired by the Secretary of
Labor, did you provide a curriculum vitae?
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A.
I did.
Your Honor, we're going
to mark his CV as C-13.
Q.
Dr. Duffus, can you identify the document
that I've provided to you?
look at it.
Is that your CV?
Take a
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A.
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JUDGE WELSCH:
Is that your complete CV?
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THE WITNESS:
Yes, it is.
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14
Q.
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Yes, it is.
Which includes your education and
professional background?
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A.
Yes, it does.
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Your Honor, at this
18
time, the Secretary would move to admit Exhibit C-13 as
19
well as C-12 which was Dr. Duffus' expert report.
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JUDGE WELSCH:
Ms. Gunnin, does Sea World have
any objections to C-13, the CV?

MS. GUNNIN:
We have no objection to C-13, Your
Honor.
JUDGE WELSCH:
objection.
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JUDGE WELSCH:
MS. GUNNIN:
The report?
Judge, we would continue our
objection to this witness being qualified as an expert
and, thus, we object to the expert report.
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JUDGE WELSCH:
C-12.
I'm going to go ahead and admit
C-12 is admitted.
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JUDGE WELSCH:
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Ms. Gunnin, do you wish to
Cross-Examine?
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---o0o---
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CROSS-EXAMINATION
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BY MS. GUNNIN:
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Q.
Good morning, Dr. Duffus.
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A.
Good morning.
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Q.
Yesterday, you told the Judge that operant
19
conditioning is a recognized scientific methodology for
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training animals, correct?
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A.
Did we use the right term, "methodology" or
"method"?
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Q.
That's a scientific method.
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A.
Certainly, there is a difference, and method
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Is that better?
is the word I would use.
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Q.
A.
I wouldn't disagree.
Q.
Can you explain to the Judge how you would
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5
train a killer whale, using operant conditioning?

A.
Operant conditioning, there is more than one
type of operant conditioning.
that's been described here by Sea World is operant
conditioning where the animal is asked to do a behavior
and then given a positive reward.
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11
Q.
The type that's employed
And, Dr. Duffus, do you have any experience
doing that?
12
A.
Rewarding killer whales?
13
Q.
Training killer whales using operant
14
conditioning?
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A.
No, I do not.
16
Q.
And, in the wild, you don't use any kind of
17
operant conditioning when you're doing your
18
observations, do you?
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A.
The primary purpose in a study is not to
20
influence the behavior if you're after natural
21
behaviors.
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Q.
And, in fact, when you were being deposed,
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you gave the example of Jane Goodall and her work with
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chimpanzees?
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A.
Yes.
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Q.
And, you discussed her manner of working with
the chimpanzees had influenced their behavior, correct?
A.
Yes.
Q.
So, if you have a killer whale in captivity
and you're feeding the killer whale and you're having
close contact with the killer whale, wouldn't that
influence the behavior of the killer whale?
A.
Yes.
Q.
So, you don't really know that a killer
10
whale's behavior in the wild would be similar.
11
the logical conclusion would be that if the killer whale
12
was maintained in captivity because of feeding and
13
caring for the killer whale, its behavior would change,
14
correct?
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A.
Some parts may.
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Q.
You don't know which parts may and which
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In fact,
Some may not.
parts may not, correct?
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A.
I don't believe anyone does.
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Q.
And, you personally haven't conducted any
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kind of study that would indicate one way or another
21
what behaviors would change; what behaviors would remain
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the same, correct?
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A.
Neither have I carried one out nor read one.
24
Q.
When you're observing killer whales in the
25
wild, what behaviors do you observe?
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A.
They have a very wide range of behaviors.
You observe swimming and diving at different speeds.
They dive at different depths, they vocalize, they
undertake visible behaviors above the surface.
wide variety.
Q.
A very
And, since you're not interacting with the
killer whales in the wild, and you're not doing so
intentionally, then you don't know what effect even in
the wild having contact would do to the killer whales,
10
correct?
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A.
Correct.
12
Q.
During your deposition, we also talked about
13
the difference in killer whales.
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not the same, correct?
All killer whales are
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A.
Correct.
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Q.
There are transient killer whales and
17
resident killer whales, correct?
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A.
Correct.
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Q.
What is the difference between the two?
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A.
At this point in time, we consider their
21
differences to be behavioral, ecological, and there may
22
be others that we have yet to discover.
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Q.
And, when you say that they are behaviorally
different, how are they behaviorally different?

A.
I think research has established fairly well
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that they entertain different group sizes, different
swimming speeds, they have different predatory habits.
Q.
And, in fact, the transient killer whales are
the killer whales that you were suggesting hunt seals,
correct?
A.
They do hunt seals, yes.
Q.
And, the resident killer whales actually
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don't hunt seals.

A.
They eat fish, correct?
That's an interesting point.
The observation
10
of killer whales in the wild has got biases that have
11
been recognized in the scientific community.
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comes to killer whales, if I may quote, "never say
13
never," but as a general term, we haven't seen too many
14
wild examples of where a resident type killer whale is
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feeding on marine mammals.
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Q.
When it
And, in your observation, it's the resident
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killer whale pod in the Pacific Northwest that you
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specifically observe, correct?
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A.
I have worked with and participated and
worked with both residents and transients.

Q.
And, again, that would be in the Pacific
Northwest area?
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A.
Yes.
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Q.
And, do you have knowledge about where the
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killer whales that are housed at Sea World came from?
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And, of course, that would exclude the ones that were
born in captivity but the ones that were actually
acquired.
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A.
I know that there are Icelandic
whales and I believe there are Pacific whales in there.
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Somewhat.
Q.
And, Tilikum specifically, he was an Islandic
whale that was part of a resident pod of whales?
A.
I believe so, yes.
Q.
And, have you ever observed the behavior of
10
an Icelandic killer whale?
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A.
Never had the pleasure of being in Iceland.
12
Q.
So, yesterday, when you were describing the
13
similarities of the Ken Peters incident and talking
14
about how that would be similar to something you would
15
see in the wild with a killer whale, that would be
16
something you would see from a transient killer whale,
17
correct?
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A.
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killer whales.
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Q.
The examples I have seen were transient
And, you don't know of any resident killer
21
whales that would engage in that type of behavior in the
22
wild?
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A.
Do you mean the resident pod as described
from the Pacific Northwest?

Q.
Yes.
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A.
No, I don't.
Q.
You also gave the opinion that aggression is
likely instinctual?
A.
I did.
Q.
And aggression, I think you actually said
that is how a killer whale does business.
A.
I did.
Q.
Am I quoting you correctly?
A.
Yes.
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Q.
And, you base that on the predatory nature of
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seeking food, correct?
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A.
I do.
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Q.
So, if the killer whale is satiated, then
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would that mean that that would not lead them to
15
aggressive behavior because they wouldn't need to be
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predatory?
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A.
A murky area.
It may or may not.
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Q.
But, you don't know, then, if a killer whale
19
is adequately fed, if it would, in fact, engage in
20
predatory aggressive behavior?
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A.
I don't think you know either way.
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Q.
Well, from a logical standpoint, if the basis
23
of your opinion is that they're aggressive because they
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have a predatory nature to seek food, if that's your
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opinion on that side, if you took the food out of the
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equation and they, in fact, didn't need to seek food,
wouldn't the opposite be true?
A.
In a scientific sense, things are not that
black and white.
interplay between instinct and learning is a gray area
for many, many species, even for humans.
Q.
to make?
A.
They are not that cut and dried.
The
Well, wouldn't it be a reasonable hypothesis
Instinct slides deep.
They may be written
10
into the animal in the actual physical nature of their
11
nervous system.
12
changed is highly questionable.
13
Q.
Whether and to what level they may be
And, yet, you would agree that when you cited
14
the example of Jane Goodall and wild chimpanzees, that
15
she had changed their behavior pattern because of
16
feeding them and living closely with them, correct?
17
A.
My reading of the work on chimpanzees is that
18
a good deal of activity in the development of their
19
social behavior and their food-seeking behavior has to
20
do with the act of searching for food as individuals and
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as groups.
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If you supply the food, you forego certain
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behaviors that may influence hierarchal social behavior,
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it may influence the growth rate satiation and perhaps
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other social behaviors.
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Q.
And, in the wild, because you don't do that
with the killer whales you observe, you don't know what
effect that would have in the wild much less in
captivity, correct?
A.
As I say, there are unknowns.
Q.
Now, you have seen the video a couple of
times, I believe now, maybe more than than that, that
was shown earlier this week to the Court, and this was
the video of the February 24th interaction with Ms.
10
Brancheau and Tilikum, correct?
You've seen that video?
11
A.
I have.
12
Q.
And, there's a place in that video where Ms.
13
Brancheau takes a fish, and she throws it into the pool
14
and then Tilikum brings her back the uneaten fish,
15
correct?
16
A.
Correct.
17
Q.
How do you explain that he's bringing back
18
the uneaten fish if your opinion is that they're
19
predators, they are aggressive, they're always seeking
20
food?
21
Why would the killer whale bring the fish back?

A.
I would expect because he's been conditioned
22
by a bigger reward later.
23
mentioned that he doesn't always bring the food back in
24
previous testimony in the Court.
25
I believe also someone else
So, it's a fascinating behavior; but,
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ultimately, the animal is rewarded?
Q.
How do you know he's ultimately rewarded?
A.
Well, in that video he was given fish
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5
afterwards.
Q.
So, you're saying that you know that the
killer whale knows it's going to get additional fish
later and that's why it would bring one fish back?
8
9
A.
I don't hazard a guess at what the whale
knows or doesn't know, but if operant conditioning is
10
such a powerful training tool, then it seems to me
11
logical if he can be trained to do other behaviors, he
12
can be trained, using the same technique to return a
13
fish for a bigger reward later.
14
Q.
So, he would have been trained to forego an
15
instinctive behavior of seeking food to be rewarded
16
later?
17
18
19
A.
If the reward later fulfills the instinctive
need, then it, in fact, isn't violating an instinct.

Q.
That would be a lot of complex thought going
20
on for the killer whale that it would be aware that, "I
21
can give this piece of fish up because I know I'm going
22
to get a lot more fish later."
23
complex thought process, wouldn't it?
24
25
A.
That would be a pretty
Predators display anticipatory behavior in
terms of how they interact with their environment.
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killer whales undertake complex behaviors?
do.
Yes, they
The process behind them, I don't know what it is.

Q.
Have you ever had an experience in the wild
of observing a killer whale taking a piece of fish and
giving it up?
A.
I have seen them release pray items.
Q.
When you say pray items, isn't that the
transient killer whales that have taken a seal and then
released the seal?
10
A.
I have seen them take birds and release
11
birds, and I have seen them release live animals and
12
pieces of animals.
13
14
Q.
And, that would be the transient killer
whales?
15
A.
Yes.
16
Q.
So, you don't know if that would be a
17
behavior that would be instinctive to a resident killer
18
whale?
19
20
21
A.
I think at the some level, all killer whales
have commonality.
Q.
In terms of behavior, though -- I mean,
22
you're proffered as an expert here for behavior -- how
23
would you know if the behavior between a transient
24
killer whale and a resident killer whale could be
25
identical in that if you haven't done any kinds of
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studies or made any observations?
A.
On some level with science we expect
generality, and we find that predators, the predatory
nature of an animal at some level across the species is
unified.
Q.
That's not something you can be certain of?
A.
Right.
Q.
Have you ever observed other types of
8
9
I didn't suggest I would be certain
of.
10
behaviors in the wild other than what you have already
11
testified to?
12
diving.
13
the wild?
14
You have talked about swimming and
Any other behaviors that you have observed in
A.
I've observed numerous behaviors in the wild.
15
I wouldn't suggest it's the complete repertoire.
16
observed predatory behavior in a variety of species,
17
I've observed swimming behavior, group behavior,
18
behavior of adults, calves, all manner of what we call
19
aerial behaviors.
20
21
22
Q.
I've
And, if you could describe an aerial behavior
that you have observed in the wild?

A.
An aerial behavior could be a full or partial
23
jump, it could be tail slaps, it could be pectoral
24
slaps.
25
behaviors as what they call percussive behaviors,
Those are sometimes a lot of different aquatic
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partial jumps, raising their head out of the water;
those sorts of things.
Q.
In the wild, have you ever observed the
behavior that you see at Sea World of the killer whales
nodding their head in reaction to the trainer?
A.
Well, we don't see too many trainers in the
wild, but nodding their head?
specifically seeing them do that.
9
10
Q.
I can't recall
Have you ever observed humans having close
interaction with killer whales in the wild?
11
A.
Yes.
12
Q.
And, what kind of close interactions were
13
14
15
16
17
they having?
A.
I watched people offering food items to a
wild killer whale.

Q.
Have you ever seen a human touch the killer
whale in the wild?
18
A.
Directly touch?
19
Q.
So, you don't know what influence that might
20
No.
have on a killer whale in the wild or in captivity?
21
A.
No, I do not.
22
Q.
But, it is possible that could influence
23
their behavior, correct?
24
A.
It is possible.
25
Q.
What is your experience with these precursors
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or precursive behavior in the wild?
A.
I find the whole concept interesting, and it
speaks to sequential behaviors that follow a pattern.
don't disagree that there are patterns, and it seems to
me that such a thing as precursive behavior exists.
I'm trying to think if I've ever observed a
sequential behavior in the wild that I would stake a
high probability on.
one.
10
11
Q.
I can't right offhand think of
And, you've seen the shows at Sea World more
than one time, correct?
12
A.
I sure have.
13
Q.
And, in seeing the shows, it would appear
14
that the killer whales are following a sequence of
15
behaviors at the direction of the trainer, correct?
16
A.
It does appear so, yes.
17
Q.
Not something that they naturally do in the
19
A.
Not that I have seen that, obviously.
20
Q.
Yesterday, you testified that the frequency
18
wild?
21
of contact with the killer whale would reduce the risk
22
to the trainers because the predictability rises with
23
more contact, correct?
24
A.
Yes.
25
Q.
You talked a little bit about the Sea Land
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case that you were a part of and that was in 1991?
A.
It was.
Q.
And, that actually involved more than just
Tilikum, correct?
A.
It did.
Q.
There were two other killer whales in the sea
pen with him, correct?
A.
There was.
Q.
And, the sea pen that the killer whales were
10
housed in at Sea Land is much different than the pools
11
that they're housed in at Sea World, correct?
12
A.
They are.
13
Q.
A sea pen is actually a confined area, but
14
it's still in the ocean, correct?
15
A.
Yes.
16
Q.
And, the trainers at Sea Land did not enter
17
18
19
the water with any of those killer whales, correct?

A.
Not at the time.
They had historically but
not with these whales.
20
Q.
21
testifying to?
22
A.
Yes.
23
Q.
And, in the past, they had entered the water
24
25
So, at the time of 1991 is what you're

They did not?
with their killer whales?

A.
That was the testimony given, yes.
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Q.
Have you ever observed that yourself?
A.
No, I haven't.
Q.
And, after the Sea Land incident, the jury
made several recommendations to Sea Land, the Workers
Compensation Board, I believe Emergency Medical
Services.
none of those recommendations had a requirement of not
entering the water with the killer whales, correct?
9
10
11
12
13
A.
And, in the recommendations made to Sea Land,
Since they didn't enter the water, it
probably didn't arise.

Q.
There was no recommendation to not be within
close proximity of the killer whales, correct?

A.
I'm trying to recall.
I mean, we were
14
concerned.
15
recommendations, without them in front of me, I cannot
16
say for sure.
17
Q.
18
We did discuss it, but in the
Would it be helpful to look at the
recommendations?
19
A.
Yes.
20
MS. GUNNIN:
Judge, could we have like
21
five minutes to locate those?
22
witness to recall that, but could I have five minutes to
23
find the document?
24
25
JUDGE WELSCH:
five minutes.
I had expected the
We stand adjourned for
So, we'll be back at ten minutes til.
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We're adjourned.
4
5
JUDGE WELSCH:
Your witness.
BY MS. GUNNIN:
Q.
document.
Dr. Duffus, I handed you during the break a

Is that a document that will refresh your
10
memory about the recommendations that were made by the
11
jury inquest into the Keltie Byrne incident?
12
A.
It will.
13
Q.
And, I believe before the break, I had asked
14
you if there were any recommendations to not be in close
15
proximity to the killer whales.
16
17
JUDGE WELSCH:
looking at?
Have you seen the document he's
Do you want to come up here and look at it?
18
THE WITNESS:
19
JUDGE WELSCH:
Are you finished reviewing it?
20
THE WITNESS:
Yes, sir.
21
BY MS. GUNNIN:
22
Q.
After your review of that report, did you
23
find anywhere in that report a recommendation not to be
24
in close proximity to the killer whales?
25
A.
No, I did not see one.
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Q.
And, in fact, didn't you give the opinion
that when reviewing the recommendations that the inquest
jury made to Sea Land in reviewing Sea World protocol,
you found it remarkable that they were following the
recommendations of that Sea Land inquest, correct?
A.
Yes, ma'am.
It is remarkable how their safety
considerations here seem to be in common use in Sea
World.
10
Q.
And, you also looked at the AZA accreditation
11
standard when we were in deposition.
12
doing that?
Do you recall
13
A.
Yes, ma'am.
14
Q.
And, you also expressed your opinion that Sea
15
World was an accredited institution as part of AZA,
16
correct?
17
A.
Yes.
18
Q.
And, that they were following the
19
recommendations of AZA with regard to keeping their
20
killer whales?
21
A.
I would not dispute that.
22
Q.
And, what do you understand the AZA to be?
23
A.
I believe it's an industry association
24
25
involving zoos and aquariums.

Q.
And, it's an accrediting institution so if
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you don't follow their recommendations, you would lose
the accreditation, right?
A.
That sounds likely.
Q.
You used the term "sufficient certainty"
frequently yesterday.
A.
What does that term mean?
Well, sufficient certainty is in common use
in science because frequently the results of our tests
are compared to a probability function; that is, in
given settings you want to be certain to a degree that
10
is suitable.
11
Q.
Okay, you said a lot, but if you're wanting
12
it to be certain to a degree that is suitable and you're
13
saying sufficient certainty, how would one quantify
14
that?
15
acting with sufficient certainty?
16
How would you know whether you are actually
A.
We frequently decide on the suitable level of
17
uncertainty depending on the nature of the outcome and,
18
in fact, what is the cost of making an error.
19
20
21
22
Q.
And, are you using that term equivalent to a
workplace must be risk free?

A.
I guess in a workplace, they should make
every attempt to reduce the risks.
23
Q.
Reduce the risks, but absolutely risk free?
24
A.
The logic of risk analysis says it depends on
25
the potential outcome of making a mistake.
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Q.
And, are you familiar with the Occupational
Safety and Health Act that is enforced in the United
States?
A.
Not in detail, no.
Q.
So, you wouldn't know whether the
requirements of the Act mandates an absolutely risk-free
workplace?
8
9
10
A.
I do not know what probability standard the
Act uses for risks.

Q.
Because you're talking about scientific risk
11
analysis, not risk analysis as applied in an
12
Occupational Safety and Health case?
13
A.
I believe it's the same process.
14
Q.
How do you know it's the same process?
15
A.
Risk analysis is an idea or concept where you
16
can compare the probability of a negative outcome and
17
the effects of a negative outcome that's used in
18
science, it's used in business.
19
Q.
But, you're not here speaking as an expert
20
about whether or not it would apply under the
21
Occupational Safety and Health Act?
22
A.
Specifically, no.
23
Q.
Are you able to quantify the term,
24
"sufficient certainty," as it would relate to a
25
percentage?
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A.
Again, different applications, we will use a
different percentage.
For example, if I may, in a
social science outcome perhaps.
where making a mistake is not as important.
example, some of my colleagues in the social part of
geography may study shopping behavior.
95 percent certainty standard in their statistical
analysis because if you make a mistake shopping, you can
always return it.
A human social behavior

For
They may use a
In the natural sciences, we
10
frequently use a 99 percent probability in our
11
statistical analysis.
12
much higher ones.
13
14
Q.
In medical systems, they will use
So, it would depend on the setting; it would
depend on the industry?
15
A.
And, it depends on the effect of the outcome.
16
Q.
And, you have never done a risk analysis with
17
a statistical determination with regard to working in
18
close proximity with killer whales, have you?
19
A.
No, I have not.
20
Q.
You also gave the opinion yesterday -- and
21
you said this a couple of times -- that it was a rare
22
event that Sea World was having incidents with their
23
killer whales occur.
Would you agree with that?
24
A.
Based on the evidence we have presented, yes.
25
Q.
How would you quantify what "rare" means?
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A.
Perhaps I was using the term colloquially
that what other witnesses say is, in fact, the case.
The number of negative events is a small proportion of
total number of events.
assume rarity.
Q.
And, what is your conclusion as to why there
are such rare occurrences?
8
9
That is, I guess, where I would
A.
I believe that by and large the training has
a reasonably high level of success.
10
Q.
And, you have offered the opinion that any
11
animal that has the ability to learn is going to adapt
12
specifically to surroundings, correct?
13
14
15
A.
To some extent, the extent of which I do not
Q.
Do you have an opinion about how it would be
know.
16
feasible for Sea World to continue to interact with its
17
killer whales in the water?
18
A.
And assure safety?
19
Q.
Yes.
20
A.
I don't.
21
Q.
And, when I asked you in your deposition
22
about that issue of how they could maintain doing what
23
they're doing and working closely with them, you said,
24
"If you just get the people on your side to just write
25
me a contract, I would love to engage in the
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idealization of what might be done," correct?
A.
I'm pretty sarcastic, aren't I?
Q.
You further said, "But, I mean that
sincerely," and you said, "Sea World does have a lot of
expertise"?
A.
I could be referring to my salary there but
we will leave that aside, but I do believe Sea World has
expertise.
Q.
I certainly don't deny that.

You also stated in your deposition with
10
regard to Tilikum that, "He's the only whale to have his
11
own chapter.
12
referencing the hazards of working with Tilikum.
They were not disregarding it,"
13
A.
That is true.
14
Q.
And, you testified yesterday what Sea World
15
didn't predict what would happen to Ms. Brancheau?
16
A.
As far as I know, they did not.
17
Q.
So, with that conclusion, wouldn't it be true
18
that Sea World was not disregarding the safety of the
19
trainers working with Tilikum or the other killer
20
whales?
21
A.
Do you mean completely disregarding?
22
Q.
I'm saying they weren't disregarding the
23
safety.
There were protocols in place, correct?
24
you reviewed those protocols, and you actually offered
25
an opinion that you were surprised at the number of
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887
protocols, pleasantly surprised at the number of
protocols?
A.
That is true.
Q.
So, they were not disregarding the safety of
the trainers?
A.
MS. GUNNIN:
(Pause).
They were not.

One minute, Your Honor.
Thank
you, Dr. Duffus.
10
THE WITNESS:
Thank you.
11
JUDGE WELSCH:
Let me ask just a few questions.
12
What is the distinction between behavior, or can you
13
distinguish between behavior and instinct?
14
THE WITNESS:
Instinct is the foundation for
15
behaviors.
16
use the colloquial term, "hard wired."
17
to, for example, if you put your hand on a hot plate,
18
you don't have to enter into a state of cognition of
19
thinking, "Oh, my, that's hot.
20
You instantly remove your hand because there is a loop
21
in the nervous system that says we already know what hot
22
is about.
23
So, instinct as the underlying program, we

That's analogous
I'll remove my hand."
Get it off.
So, instinct is the program by which things become
24
an instantaneous or almost universal response.
25
Behaviors are built on instinct and learning.
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JUDGE WELSCH:
That was my next question because
you also talked about learning.
of learning?
THE WITNESS:
Yes, sir.
What is your definition
Learning speaks to a
mode of interaction.
consider two types of transmission.
one is cultural.
transmission of information is learning.
9
10
In the sciences where I work, we

One is genetic and
So, anything that lies in the cultural
JUDGE WELSCH:
And the killer whales on which
you've made observations, they are located where?
11
THE WITNESS:
In the Pacific Northwest.
12
JUDGE WELSCH:
What are the traditional areas, I
13
14
guess, where killer whales can be found?

THE WITNESS:
Killer whales are actually a
15
cosmopolitan species found in every ocean in the world
16
from the Antarctic ice shelves to the Arctic ice
17
shelves.
18
JUDGE WELSCH:
Do you have any knowledge as to
19
whether or not there are distinctions between killer
20
whales found in the Pacific Northwest and killer whales
21
found in some other locations?
22
THE WITNESS:
Yes, sir, there are distinctions,
23
and the distinctions we see involve ecology; that is,
24
their interaction with food in different areas of the
25
ocean.
They focus primarily on different foods and, in
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fact, even in very close areas of the ocean they focus
on different types of food.
That dictates a great deal of other potential
differences in terms of group size, in terms of body
size, so they do have quite localized adaptations to a
variety of settings.
7
8
9
10
JUDGE WELSCH:
And, in response to Ms. Gunnin's
question, you talked about transient and resident.

Can you define that for me?
THE WITNESS:
In the Pacific Northwest, the
11
long-term studies point to separation of groups between
12
animals that are residents that hunt in larger group
13
sizes and are quite localized to areas where we have
14
consistent fish runs, and they feed as far as we know,
15
primarily possibly -- that's still a questionable area
16
-- on fish.
17
18
19
Transients, smaller group size, bigger ranges,

larger pray, particularly marine mammals.
JUDGE WELSCH:
As uneducated as I am, is there a
20
way to tell by looking at a whale whether or not it's a
21
transient or a resident whale?
22
THE WITNESS:
Experienced field workers can
23
tell quite readily.
They have a distinction in their
24
outward appearance; whereas, that's not 100 percent.
25
They swim generally at different speeds.
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In fact, in
890
the Pacific Northwest, every individual whale is known
and they are known to be from a resident or a transient
group.
JUDGE WELSCH:
Since you said you've been to Sea
World, do you have any knowledge as to the type of whale
of the seven that are found at Sea World?
THE WITNESS:
I specifically know that Tilikum
is from Iceland.
Iceland, and Iceland had seen a variety of hunting
10
He was imported to Canada from
techniques.
11
Honestly, sir, I don't put a great deal of stock
12
in the permanence or necessarily wide spread nature of
13
these types.
14
JUDGE WELSCH:
You're losing me a little bit.
15
THE WITNESS:
I'm a little skeptical.
16
JUDGE WELSCH:
You seem to be saying there's a
17
distinction between the transient and the resident
18
killer whales, and you say there's a way to distinguish
19
them by observation.
20
distinguish between a transient killer whale and a
21
resident killer whale.
22
At least the trained person could
I was asking you the killer whales that Sea World
23
has, are they considered transient or resident killer
24
whales, or is it a mixture of both or could you tell
25
when you were there?
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THE WITNESS:
No, I could not.
JUDGE WELSCH:
In the Pacific Northwest, have
you worked with both types of killer whales?
THE WITNESS:
Yes, I have.
JUDGE WELSCH:
Transient and resident?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Other than being able to
physically maybe tell the differences, is there
something in the way they interact with themselves or
10
with other people, are there any differences in their
11
behaviors?
12
THE WITNESS:
Their group size and swimming
13
speed very frequently there is a difference.
14
resident forms interestingly pray on smaller pray, but
15
they have a larger group size because we believe the
16
effort it takes to coroner a school of fish, for
17
example, requires cooperation or a group feeding for the
18
residents.
19
The
The transients frequently travel in smaller
20
groups, generally two to seven around our area, and they
21
feed on larger pray.
22
differences are not always consistent, but as a general
23
rule, transients swim faster and in smaller groups.
24
25
And, the swimming speed
And, I myself and my colleagues, we undertook a

study of the actual visual aspects to see if what we
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were seeing with our eyes made statistical sense.
Unfortunately, it didn't.
JUDGE WELSCH:
In this courtroom, I have heard
the terms and you have used of them.
"predator," I've heard "aggressive" and I've heard
"exploratory."
7
8
9
10
I've heard
Is that kind of language that you use in your

work?
Do those mean something to you?

THE WITNESS:
Yes, it certainly does.
JUDGE WELSCH:
What is the difference between --
11
can you tell in terms of the animals when killer whale's
12
behavior essentially between something that's acting as
13
a predator versus acting with aggressive behavior or
14
acting as exploratory behavior?
15
THE WITNESS:
All of that would depend upon the
16
situation you're observing.
I listened quite closely to
17
previous witnesses talk about mouthing behavior and
18
considering it as exploratory behavior.
19
interesting and certainly not inconsistent.
That's quite
20
But, my view of the killer whales in the wild --
21
JUDGE WELSCH:
I'm sorry, I don't mean to stop
22
you, but I'm not quite sure when you say, "I've heard
23
and it was quite interesting and not surprising," or
24
something like that, I'm not sure what that means.
25
THE WITNESS:
It means that their
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interpretation of killer whales exploring by using their
mouths sounds reasonable, and I have seen killer whales
explore with their mouths in the wild.
JUDGE WELSCH:
behavior?
means but --
How would you define a
I think I have a sense of what exploratory
THE WITNESS:
Mouthing things, grabbing things
with their mouths and/or opening their mouths and
experiencing things.
10
JUDGE WELSCH:
So, something like the incident
11
that happened last year with Ms. Brancheau, that could
12
be aggressive or it could be exploratory; is that what
13
you're saying?
14
15
16
THE WITNESS:
Or a combination.
It could have
started with an exploratory and ended in another way.

JUDGE WELSCH:
Is there any way to tell the
17
difference between when it's exploratory and when it's
18
aggressive?
19
THE WITNESS:
Unfortunately, I would guess the
20
best way to be sure of that or reasonably sure would be
21
by the outcome.
22
JUDGE WELSCH:
I guess I didn't understand
23
yesterday the connection between the autopsy that you
24
did, I think it was back in 1991 involving Keltie Byrne,
25
that has what you said, and that didn't really involve
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Tilikum?
THE WITNESS:
It did.
JUDGE WELSCH:
When Tilikum was at Sea Land?
THE WITNESS:
Yes.
JUDGE WELSCH:
So, you were involved with that
jury on the coroner's jury?
THE WITNESS:
Yes, I was.
JUDGE WELSCH:
And, I don't want you to go
through all of them unless you need to look at it, but
10
can you tell me what were the recommendations of the
11
coroner's jury that you were on?
12
THE WITNESS:
We made recommendations to four
13
agencies, the Workers Compensation Board, which a rough
14
equivalent to OSHA, Workers Safety Government
15
Institution, we made recommendations to them about their
16
inspection and reporting procedures.
17
fragmented.
18
aquarium about the physical nature and emergency
19
procedures at the aquarium itself.
20
recommendations to the Fisheries and Oceans Canada which
21
is the regulator about keeping tighter track of the
22
regulations over animals in captivity, and we made
23
recommendations to emergency room physicians because
24
some of our jury thought that they were not well
25
prepared for cold water emergency incidents.
We found them
We made recommendations to the owner of the
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JUDGE WELSCH:
Going back to the aquarium
recommendations, were they specific with regard to
physical?
emergency procedures.
I think you said the physical as well as
In terms of the physical dealing with the aquarium
recommendations, can you tell me what those
recommendations were?
8
9
THE WITNESS:
They all related to either safety
or to emergency procedures to distribution of emergency
10
alarms to the presence of a net that could separate or
11
isolate individual whales to safety lines to floatation
12
devices.
13
JUDGE WELSCH:
14
the emergency procedures.
15
were there specific recommendations that the jury made
16
with regard to the aquarium and the physical or do you
17
consider what you have identified to be both physical
18
and emergency procedures?
19
20
21
22
THE WITNESS:
Those to me seem to go more to

In terms of the physical,
Most of our physical
recommendations were to the emergency procedures.

JUDGE WELSCH:
And, this situation involving
Keltie Byrne, what was he doing?
23
THE WITNESS:
She?
24
JUDGE WELSCH:
She.
25
THE WITNESS:
She was an assistant trainer.
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She slipped, although the inside matting -- it's quite a
small aquarium, and there's inside the rail where only
trainers and staff are allowed, and outside the rail
where visitors watched.
She slipped on a mat.
She was wearing the
recommended footwear, the mat is a nonslip mat, she
slipped and fell into the pond.
remove herself, she was grabbed by a whale that
witnesses could not positively identify which whale that
10
11
When she attempted to
was at the time when she was grabbed.

At that point, she vocalized, she was pulled into
12
the water, and at some point in the ensuing short period
13
of time, Tilikum grabbed her, and what ensued over the
14
next approximately hour and a half was unsuccessful
15
attempts to retrieve Ms. Byrne from the whale and
16
unsuccessful attempts to divert the whale's attention.
17
At some point during the episode, Tilikum took Ms.
18
Byrne to the bottom or we presume to the bottom,
19
underwater and released her.
20
undetermined length of time during this.
21
screaming, and witnesses weren't exactly sure whether
22
she appeared to be in shock or possibly dead.
23
She was alive for an

She stopped
Eventually, the whale was isolated back into a
24
very small holding pen, and her body was subsequently
25
recovered by a net.
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JUDGE WELSCH:
The animal trainers involved in
that incident, were they doing the same kinds of things
at Sea Land as the animal trainers at Sea World?
THE WITNESS:
Your Honor, I don't specifically
recall if they used hand slaps.
distract the animal.
attempted to distract the animal and they attempted to
use the net.
JUDGE WELSCH:
They did try to
I can't be positive.
They
No, what I meant was in terms of
10
the interactions with the animal trainer that was
11
involved in the incident, because you said there were
12
animal trainers that could go on the other side of the
13
gate or whatever.
14
same way as Sea World in Orlando?
15
the animal trainers were doing these interactions and
16
doing performances?
Was Sea Land set up, I guess, the

Was it set up where
17
THE WITNESS:
Yes.
18
JUDGE WELSCH:
And, so in response to Ms.
19
Gunnin's questions in terms of the recommendations that
20
you said that the coroner's jury made to Sea Land that
21
you found that were implemented by Sea World, were those
22
the ones you just talked about regarding your
23
recommendations to the aquarium?
24
25
THE WITNESS:
Yes, Your Honor.
The
recommendations that we have in there, although they
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weren't made, and I have no knowledge of Sea World's
ever seeing that document, a lot of emergency procedures
we recommended in there are in common use at Sea World.
4
5
6
JUDGE WELSCH:
AZA?
What does that stand for?

THE WITNESS:
Zoos and Aquariums.
JUDGE WELSCH:
9
10
11
12
13
14
And, then you talked about the
I believe it's the Association of
Are there published
recommendations in terms of animal behavior or whatever

from the AZA?
THE WITNESS:
Their accreditation standards are
public, yes, sir.

JUDGE WELSCH:
Thank you, sir.
That's all the
questions I have.
15
Ms. Howard-Fishburne, do you have any Redirect?
16
17
Could I have just a five-minute recess?
18
JUDGE WELSCH:
Yes, Your Honor.
It's 10:30 now.
So, it might be
19
a good time to start off with a ten-minute break.
20
know Counsel for Sea World needs to make a phone call.
21
So, we stand adjourned until 20 of.
22
23
24
JUDGE WELSCH:
25
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Ms. Howard-Fishburne, your witness.
---o0o---
Q.
Hello again, Dr. Duffus.

You spoke earlier about operant conditioning,
and you mentioned the terms "method" and "methodology"
and you seemed to make a distinction.
10
Could you explain to the Court what is the
11
difference between what operant conditioning is and
12
method or methodology?
13
A.
Methodology refers to the underlying
14
philosophy behind the method, and it's actually a
15
philosophical item.
16
techniques you use to accomplish something.
17
Q.
Method is the actual set of
And, the method of operant conditioning that
18
Sea World uses to train its trainers, do you have an
19
opinion about whether that method has been effective in
20
protecting trainers?
21
22
23
A.
Could you clarify that for me?
Do you.
mean -Q.
Whether the method what Sea World has used
24
has been sufficient to protect the trainers interacting
25
with killer whales?
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A.
Not in every case.
Q.
What do you mean by that?
A.
Well, the reason we're here today is because
4
5
there was an accident with a trainer.

Q.
Can you explain that further?
What is your
opinion regarding the accident that occurred and the
method of operant conditioning technique that Sea World
is using?
9
10
A.
Any method of training isn't going to dictate
all occasions of whale behavior.
11
Q.
Is that because whales aren't predictable?
12
A.
Whales have an aspect of unpredictability.
13
Q.
You talked about transient and resident
14
killer whales.
15
the Sea World documentation that you reviewed, was there
16
any reference or distinction made regarding whether Sea
17
World's killer whales were resident or transient?
18
A.
In the documentation that you reviewed,
They mentioned the origin of the animals.
19
You have to understand that resident and transients are
20
a distinction that arises out of the Pacific Northwest,
21
and it's used in other places in a more general sense.
22
We have whales, for instance, that are being
23
studied in Norway that entertain something different.
24
We have whales in Antarctica that behave somewhat
25
differently.
That distinction is particularly most well
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entrenched in the Pacific Northwest where the animals
have been subject to long-term field studies.
So, whether that distinction holds over
larger areas or are localized scenarios is not well
defined.
Q.
In your opinion the fact that a whale is a
transient or a resident killer whale, does that affect
whether they have a predatory nature?
A.
No.
10
Q.
In your review of Sea World's safety
11
protocols and the incident reports and animal profiles,
12
were you able to determine whether Sea World actually
13
had both transient and resident killer whales?
14
you mentioned that they noted the origin, but does that
15
origin identify whether they're resident or transient?
I know
16
A.
I do not recall so.
17
Q.
There was a good deal of discussion regarding
18
the Keltie Byrne jury inquest that you were involved in.
19
What was the relevance of your review to this case?
20
What was the relevance of your review in the Keltie
21
Byrne matter?
22
A.
The relevance is that in 1991, there was an
23
accident with a trainer and a killer whale, and I
24
participated in the analysis of that event as far as we
25
could and tried to support the coroner in making a
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decision, in making recommendations.
In that inquest, I had the unfortunate
circumstance to have to read the medical examiner's
report about a young University of Victoria student.
When I read over the papers about this one, I found
myself reading another medical examiner's report about a
trainer and a killer whale.
8
9
Are they relevant to each other?

they exact duplicates?
No.
Yes.
Are
I am struck by the
10
similarities.
11
Q.
What similarities were you struck by?
12
A.
The outcome.
I mean, I have listened.
13
hope I did a good job of reading Sea World's
14
documentation, and I have listened to their trainers and
15
I share some understanding of how they feel.
16
they, obviously, like killer whales.
17
whales too.
I mean,
I like killer
I've spent a lot of time working with them.
18
In 1991 when I went to the coroner's jury and
19
the medical examiner threw photographs in front of me of
20
the bite marks of the killer whale, it had a significant
21
effect on me.
22
in this case what that effect was, and that human
23
dimension has nothing to do with my expertise as a
24
scientist.
25
I forgot until I started getting involved
The similarity you can draw are 20 years
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apart, and I'm reading the same sort of thing in a
medical examiner's report.
an expert, I would not assess them to have anywhere near
the level of sophistication, understanding or the wealth
of experience that Sea World does.
a colloquial term, Your Honor, it was the wild west.
Nobody really knew a heck of a lot about what was going
on.
reading the same outcome in one event.
10
Sea Land of the Pacific, as
It was, if I may use
20 years later a lot has been done; yet, I'm
Q.
Were you surprised that the killer whale
11
Tilikum was still interacting with killer whale trainers
12
20 years later?
13
A.
I don't think I was surprised as I got into
14
it.
My surprise arose when I saw the video of the Dine
15
With Shamu and particularly at the end of that video and
16
the proximity of the whale and Ms. Brancheau.
17
surprise me.
That did
18
Q.
What about the proximity surprised you?
19
A.
I don't want to second guess an experienced
20
trainer, but I would not, given my experience with
21
killer whales and my experience with these inquests,
22
experience with killer whales primarily in the wild, I
23
would not be that close to Tilikum, no way on earth.
24
Q.
25
Tilikum?
What if it was a killer whale other than

Does your opinion change?
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A.
Maybe I'm inexperienced, maybe I'm overly
cautious, but I have a great deal of respect in that in
my lab I have a skull of one of those and I've seen the
teeth close up.
I would not do it.
Q.
And why wouldn't you do it?
A.
I have a great deal of respect with the
fundamental nature of large predators.
it on purpose.
Q.
10
11
12
13
14
I would not do
And, when you say the fundamental nature of
large predators, could you explain?

A.
My experience with large predators is they
kill things, not indiscriminately.

Q.
You also in response to some of Ms. Gunnin's
questions talked about the Tilikum protocols?
15
A.
Yes.
16
Q.
Did the Tilikum protocols provide sufficient
17
safety for the killer whale trainers?
18
A.
Not under every condition.
19
Q.
Explain what you mean.
20
A.
If the interactions with Tilikum was
21
sufficient under all conditions, we would not be here
22
today.
23
JUDGE WELSCH:
Could you be a little more
24
specific?
Could you identify for me what specific
25
protocols in dealing with Tilikum that you think are
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problematic?
The specific protocols that --
THE WITNESS:
Specifically, if you put yourself
in close enough proximity to Tilikum that he could pull
you in the water.
JUDGE WELSCH:
What do you mean by "close enough
proximity"?
you talking about more than five feet or more than ten
feet?
Are you talking about at arm's reach?
Are
What are talking about?

THE WITNESS:
That would depend on what the
10
side of the pool is like.
11
killer whale can rise out of the water and seize pray or
12
any item off the side to a certain extent.
13
Under normal conditions, a
So, it depends on what the exact configuration is,
14
but if you were perhaps five to eight feet away, there
15
would be absolutely no opportunity with that intervening
16
space of dry land or a raised --
17
JUDGE WELSCH:
Let me ask you, are you saying
18
that they should keep the trainers five to eight feet
19
away, or are you saying more than that?
20
21
THE WITNESS:
I'm saying either that or a
raised barrier.
22
JUDGE WELSCH:
23
24
Q.
25
Raised barrier.
And, you heard testimony over the course of
the week that it was okay for a trainer to work -- prior
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to February 24, 2010, that it was an approved Sea World
interaction that an animal trainer could work with
Tilikum at the pool's edge.
regarding that procedure that Sea World permitted?
What is your opinion
A.
Being at the edge of the pool has a risk.
Q.
And what risk does it have?
A.
Tilikum or any other killer whale is able to
grasp you.
9
10
Q.
Tilikum, she was close enough to touch Tilikum?
11
12
And, in the videos of Ms. Brancheau and
A.
That was the testimony and that's what the
videos show, yes.
13
Q.
And, she actually touched him; isn't that
15
A.
Apparently, yes.
16
Q.
And, what is your opinion regarding having
14
true?
17
killer whale animal trainers being allowed to touch
18
killer whales during interactions?
19
A.
It has a measure of risk.
20
Q.
Would you explain?
21
A.
As was attested to, killer whales are a large
22
predator.
23
behavior that can and has endangered trainers.
24
25
Q.
As we've seen examples of, they do undertake
You also gave testimony regarding animal
trainers engaging in water work with other than Tilikum,
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of course, prior to February 24, 2010.
Do you have an opinion regarding whether it's
safe for trainers to engage in water work with the
killer whales other than Tilikum?
A.
It has a risk.
Q.
Can you explain?
A.
Well, if you read through the incident
reports, killer whales can cause harm to trainers and
have on occasion.
10
out the risk.
11
Q.
Therefore, you cannot logically rule
So, the interactions that we viewed with Ken
12
Peters and the killer whale, that was water work.
13
you remember that video?
Do
14
A.
Yes, I do.
15
Q.
What is your opinion regarding the animal
16
17
18
19
trainers continuing to perform that type of interaction?

A.
If you do the same things, the possibility
exists that the same result may happen.

Q.
And, you have testified regarding Sea World's
20
having -- your reviewing Sea World's safety protocols.
21
What is your opinion regarding whether those safety
22
protocols can prevent incidents like Mr. Peters or Ms.
23
Brancheau?
24
A.
That they occur suggests not all of them.
25
Q.
Can you explain what you mean?
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A.
I mean, if the safety protocol would
absolutely protect every trainer in every situation;
that we have accidents and injuries as an example of
situations where it doesn't.
Q.
When you say it doesn't, what do you mean?
A.
Where whatever methods that are being
7
8
9
employed do not work.

Q.
You reviewed Sea World's incident reports and
heard testimony from Mr. Tompkins regarding the fact
10
that Sea World learns from, you know, the incidents and
11
mistakes that occur, and that this is a part of their
12
safety program.
13
What is your opinion regarding Sea World's
14
safety training program and process where they
15
essentially wait for something to happen and then try to
16
fix it?
17
A.
If that were the sole purveyor of the
18
development of safety protocols, it has as inherent flaw
19
in that the outcome of an incident occurring might be
20
catastrophic, and you would not wish it to happen before
21
you learn from it.
22
23
I don't have any other
questions.
24
JUDGE WELSCH:
Ms. Gunnin?
25
MS. GUNNIN:
Yes, Your Honor.
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JUDGE WELSCH:
Go ahead, Ms. Gunnin.
---o0o---
RECROSS-EXAMINATION
BY MS. GUNNIN:
Q.
questioning by Ms. Howard-Fishburne.
7
8
Dr. Duffus, just a few follow-ups to the
In Sea Land of the Pacific, they didn't wear

wet suits, did they?
A.
No, they did not.
10
Q.
And, in fact, when you testified about Sea
11
Land of the Pacific in your deposition, you said, when I
12
asked you:
13
14
"How would they interact with the killer

whales?"
15
You said:
"I think in my report I describe
16
it as quite low key and, of course, that's in
17
comparison to Sea World, it was based on feeding
18
and very little contact."
19
20
Would you agree that that was what you said

at the time of your deposition?
21
A.
Yes.
22
Q.
So, it wouldn't be true that their shows were
23
24
25
like Sea World's?

A.
There are some similarities, but they
certainly aren't as involved.
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or they aren't as intricate.
Q.
That was based on feeding and very little
contact, according to your sworn testimony in August,
correct?
A.
Yes.
Q.
And, I asked you if Sea Land kept any kind of
records of their shows or their interactions that they
had with the killer whales, and you said not that you
were provided with as part of the jury?
10
A.
We were not provided with them, no.
11
Q.
Are you aware of any records that Sea Land
13
A.
I'm not aware.
14
Q.
And, you also just testified again about the
12
kept?
15
predatory nature of killer whales, and you said
16
something very definitive.
17
things.
18
You said predators kill
So, in your opinion of a killer whale is a
19
predator acting aggressively, they kill things, wouldn't
20
the natural conclusion be from that that you would
21
expect that every interaction with a killer whale is
22
likely to end up in injury?
23
A.
Not every one, no.
24
Q.
Well, if predators just kill things, that
25
would be the likely outcome, wouldn't it?
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A.
I did not exclude other things.
They don't
always -- they don't kill each other, for example.
do kill things.
Q.
They
Well, you have given the opinion that it's a
rare occurrence, and you're also saying the incident at
Sea World, and then you're also saying that killer
whales are just predators and they kill things.
you reconcile the two?
A.
Here's how I reconcile it.
I reconcile it in
10
that the training program that Sea World uses is
11
influential.
12
not work all the time.
13
Q.
It does work.
How do
My point is that it does
And, your opinion with regard to no close
14
contact with a killer whale, that covers all contact
15
with the killer whales, correct?
16
contact at the shows?
That's not just
17
A.
I believe logically that is true.
18
Q.
So, how would it be that Sea World is to
19
conduct husbandry and medical type procedures on Tilikum
20
if they are to stay five to ten feet away from Tilikum?
21
Your Honor, we would
22
continue our objection regarding the relevance to
23
husbandry.
24
25
JUDGE WELSCH:
Overruled.
So noted on the record.
Go ahead.
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BY MS. GUNNIN:
Q.
You can answer.
A.
It was interesting for me to note Mr.
Tompkins' recollection when they used to move whales
quite a bit between the Ohio park and more southern
parks.
The one way that he thought about husbandry
would be the use of slings similar to the ones they use
in the removal of animals from the pool for travel
10
purposes.
11
terribly convenient, but it is a way to immobilize the
12
whale as is the medical procedure of dry-docking the
13
whales.
14
the body of experience that Sea World's veterinarians
15
have, that it could be done without close, potentially
16
dangerous contact.
17
I understand this might be ungamely or not
It seems to me within those methods and with
Q.
Well, you gave the opinion that Sea World
18
were the experts on the issue, so what experience do you
19
have with husbandry and medical procedures and feasible
20
abatement?
21
A.
Well, there's a certain logic to them to
22
carry on these activities.
23
with various aspects of the whale, for instance, to draw
24
blood.
25
They need to get involved
I have never drawn blood from a whale, that's
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true, but I do understand the procedures.
the procedure of drawing blood from a cetacean.
not rocket science, but it does require skill and
experience.
I have seen
It's
So, again, I'm not here to suggest that Sea
World does not have expertise.
that expertise in a slightly altered environment that
may increase the safety.
Q.
It's the application of
You also testified a lot about risk, and you
10
said on the last direct questioning that you can't
11
logically rule out the risk of anything, correct?
12
A.
There was a broader context to that, but
13
unless you know with absolute certainty, you cannot rule
14
out risk.
15
Q.
There's a risk driving in your car, correct?
16
A.
There certainly is.
17
Q.
So, would you just not drive in your car
18
because the result could be a fatal accident, correct?
19
A.
The analogy is not strong but it is correct.
20
Q.
And, you also testified that the safety
21
protocol proves that it doesn't prevent every injury,
22
but you do concede that the safety protocol in effect at
23
Sea World -- you were surprised by it pleasantly and
24
that they do protect the trainers from many incidents
25
happening, correct?
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A.
Correct.
Q.
You offered the opinion to Ms.
Howard-Fishburne that Sea World is waiting for something
to happen, and then they are trying to fix it.
don't believe that if you also believe that their
protocols are effective, do you?
A.
The way that Ms. Fishburne characterized that
is a way that has been used.
the only way.
10
Q.
You
I did not suggest that was
Well, in fact, if you looked at the incident
11
reports, a lot of those were fairly old, correct?
12
mean, they were remote in time.
13
old?
They were 15, 20 years
14
A.
They have increased frequency with age, yes.
15
Q.
They happen more often in time.
So, wouldn't
16
that indicate to you that they were actually learning
17
and taking that -- so that in 2010, they had learned a
18
lot; not that they were learning currently, but that
19
they had instituted additional protocols from the
20
learning that had happened from prior incidents?
21
A.
Yes, they had learned.
22
Q.
And, made it part of the protocol?
23
A.
Yes, they did.
24
MS. GUNNIN:
25
JUDGE WELSCH:

Ms. Howard-Fishburne, do you
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have anything?
you have other questions if you want to use it.
3
4
I think this is an important witness if
We would be done, Your
Honor.
JUDGE WELSCH:
Thank you, sir.
You're
excused.
I will instruct you not to discuss your
testimony with other persons who may be called later as
witnesses in this case.
Thank you, sir.
(Witness Excused)
10
JUDGE WELSCH:
Mr. Black?
11
MR. BLACK:
Ms. Gunnin and I -- I'm not sure
12
how you want to do the scheduling because I will be
13
starting with a witness.
14
wanting to go until lunch.
15
JUDGE WELSCH:
I don't know how long you're
The next witness you're calling,
16
how long do you anticipate your Direct Examination will
17
take?
18
MR. BLACK:
20, 30 minutes.
It's just a
19
question of whether I finish the witness and then we
20
take lunch or whether we --
21
JUDGE WELSCH:
Why don't we take lunch.
22
thought I made that clear this morning with Counsel.
23
What I want to do is, why don't we just take a
24
five-minute break.
25
after.
We'll stand adjourned until 25
We'll start the witness.
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For those that are here, we're looking at probably
ending the hearing for this session sometime early this
afternoon.
will have some breaks, but what I'm looking at is
probably trying to get finished between 1:00 and 2:00
and to then we're going to have to reconvene.
going to reconvene and come back on November 15th
through the 18th or 19th.
reconvene this proceeding.
10
11
So I'm trying to avoid taking lunch.
So, we
We're
So, we're going to have to

It will be the same
courtroom that we had at the beginning, Courtroom 1B.

But, I will be sending out an order when I get
12
back to Atlanta.
13
minutes.
Let's stand adjourned for five
14
15
16
JUDGE WELSCH:
17
Mr. Black, does the Secretary wish to call her
18
19
20
next witness?
MR. BLACK:
Secretary calls Les Grove.
21
---o0o---
22
LESLIE L. GROVE, III,
23
24
25
The
JUDGE WELSCH:
Sir, for the record would you
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THE WITNESS:
Leslie L. Grove, III, G-r-o-v-e.
The address is 2598 Sand Hollow Lane, Palm Harbor,
Florida 34683.
JUDGE WELSCH:
Your witness.
MR. BLACK:
Thank you, sir.
---o0o---
10
DIRECT EXAMINATION
11
BY MR. BLACK:
12
Q.
Good morning, Mr. Grove.
13
A.
Good morning.
14
Q.
Who is your employer?
15
A.
U. S. Department of Labor, Occupational
16
17
18
Safety and Health Administration.

Q.
What is your position -- well, that's
sometimes known as OSHA?
19
A.
Yes.
20
Q.
And, what is your position with OSHA?
21
A.
I'm the Area Director of OSHA's Tampa Area
22
23
24
25
Office.
Q.
And, what are your duties as the Area
Director?
A.
I supervise the 37 employees on my staff and
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the conduct of our activities which are conducting
safety and health inspections, compliance assistance,
outreach, investigating whistleblower complaints and
other activities.
5
6
7
Q.
staff.
And, you mentioned 37 employees on your
What are the functions of those employees?
A.
I have three assistant area directors who
assist me in managing the office; 19 safety specialists
and including safety engineers who conduct primarily
10
safety enforcement inspections; seven industrial
11
hygienists who conduct health inspections, and then
12
three whistleblower investigators who investigate
13
whistleblower complaints, administrative staff and a
14
compliance assistance specialist.
15
16
17
18
19
Q.
How many inspections does the Tampa Office,
the personnel there perform each year, approximately?

A.
In a given year, it's approximately 1,000
inspections.
Q.
And, what types of inspections?
How does
20
that break down as to different types -- well, first of
21
all, are there different types of inspections?
22
23
24
25
A.
Yes, there would safety inspections and
health inspections.
Q.
And, what is the breakdown of that
approximately 1,000 inspections?
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1
2
3
4
A.
Approximately 80 percent would conducting
safety inspections.
Q.
And, how long have you been the Area Director
in Tampa?
A.
Since April of 2001.
Q.
When did you first start working with OSHA?
A.
November 4th of 1979.
Q.
Before you became the Area Director of Tampa
9
10
11
12
13
in April of 2001, what were your positions with OSHA?

A.
Prior to that, I was Area Director in the
Columbia, South Carolina, Area Office.

Q.
And how long were you the Area Director in
Columbia, South Carolina?
14
A.
Approximately ten years.
15
Q.
And, prior to when you became Area Director
16
in Columbia, what were your other positions that you
17
held and when did you hold those in OSHA?
18
A.
Back in '79 I was hired as an industrial
19
hygienist in the Cleveland, Ohio, Area Office, and in
20
1987 I was promoted to a supervisory industrial
21
hygienist position.
22
Q.
And, did you go from becoming a supervisory
23
industrial hygienist to becoming the Area Director in
24
Columbia, South Carolina?
25
A.
Yes, I did.
CARLIN ASSOCIATES
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920
Q.
I want to turn your attention to the
inspection involved that led to the citations at issue
in this case.
A.
Okay.
Q.
How did the inspection of Sea World begin in
6
7
8
9
Okay?
this case?
A.
There was a report on CNN about the fatality,
and then it was assigned for inspection.

Q.
And, just tell me, explain a little bit of
10
how that works.
11
then what does OSHA do to commence an inspection?
12
A.
A report was on the television, and
Well, when we heard of a fatal accident, like
13
in this case from the media, one of the managers would
14
assign the inspection to one of our compliance staff to
15
conduct an inspection and investigate the fatality.
16
17
Q.
And, this case was assigned to a member of
the compliance staff?
18
A.
Yes, it was.
19
Q.
And who was it assigned to?
20
A.
Lara Padgett.
21
Q.
And, what is Lara Padgett's experience as a
22
compliance officer?
23
handle this kind of inspection?
24
25
A.
What would make her qualified to
She's a senior GS-12 compliance officer,
safety specialist and has been there since I've been in
CARLIN ASSOCIATES
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Tampa for ten years, and I think three or four years
prior to that; so maybe 14, 15 years of experience in a
variety of inspections and all types.
Q.
What did her inspection or investigation --
what would you use as the term for what was done in this
case?
7
8
A.
It's an inspection but we also called it a
fatality investigation.
Q.
So, if I use those terms, either of those
10
terms, you would understand them to mean the same thing
11
here?
12
A.
Yes.
13
Q.
And, what did the fatality investigation
14
consist of?
15
A.
What were the elements of it in this case?
During a fatality investigation, what we're
16
looking for is what occurred, causes of it, whether
17
there were any violations of OSHA standards or general
18
duty clause, and any feasible abatement methods down the
19
line.
20
collection of documents, review of documents.
21
There would be interviews of personnel, a
Q.
Anything else?
22
gathered that information?
23
at?
24
25
A.
What do you do once you've

Any other sources you look
Depending on the circumstances, you could
look anywhere, different criteria documents, search on
CARLIN ASSOCIATES
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the internet, search to gather whatever information is
necessary to include in the investigation.
3
4
Q.
And, was that the procedure?
Is that what
happened here in Ms. Padgett's investigation?
A.
Yes, sir.
Q.
She did interviews?
A.
Yes.
Q.
Collected documents?
A.
Yes.
10
Q.
Obviously, went to the work site?
11
A.
Yes, went there and investigated, did a walk
12
around, looked at the area, again talking to whoever she
13
needed to talk to to find out what occurred.
14
15
16
Q.
And, you as the Area Director, how did you
monitor her investigation?

A.
Periodically, I would get an update from Ms.
17
Padgett or her supervisor.
18
file would have come to me for review.
19
that, I signed some letters for medical examiner report,
20
sheriff's office report, signed a subpoena for documents
21
from Sea World and other activities.
22
23
Q.
At the conclusion, the case

Even prior to
And, you say at the conclusion, the
investigation file would come to you?
24
A.
Yes, sir.
25
Q.
And I assume that happened in this case?
CARLIN ASSOCIATES
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A.
Yes, it did.
Q.
What did you do when you received the case
A.
I reviewed the file, determined whether or
3
4
file?
not the proposed citations were appropriate.
case, I would have prepared a memo to send forward for
review to the Regional Office and actually to our
National Office.
Q.
In this
And, did OSHA, and specifically you as an
10
Area Director, make a determination to issue the
11
citation at issue in this case?
12
13
14
15
A.
Yes, we did and the citation was issued under
my signature and authority.

Q.
I'm going to show you a copy of the citation.
That will make it easier to go through this.
16
JUDGE WELSCH:
17
MR. BLACK:
18
No, this is just to aid in his
testimony.
19
JUDGE WELSCH:
20
BY MR. BLACK:
21
Q.
22
There's no need to admit a copy.
Okay.
Let's look at -- well, what date was the
citation issued?
23
A.
It was issued August 23rd of 2010.
24
Q.
And, the Citation 1, Item 1, what is the
25
standard there or what was violated?
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1
2
standard violated?
A.
The standard is 1910.23(d)(1)(iii) which
requires that flights of stairs with four or more risers
less than 44 inches wide having open sides on both sides
must have standard stair railing on each side.
6
7
8
9
Q.
What is it that OSHA found that was missing
or violative in that regard?

A.
Well, the two bridges, the Shamu Stadium,
front side, left bridge of the Believe Stage was not
10
guarded, missing a stairway railing system and the front
11
side, right bridge was also missing a stairway railing
12
system.
13
14
15
16
17
18
19
20
Q.
And, what is the hazard involved with that
violation?
A.
The hazard is a fall from the stairs up to
ten feet, three inches high.

Q.
And, what type of injuries could be sustained
from a fall up to ten feet, three inches high?

A.
You can have broken bones you could have head
injuries up to and including death.
21
Q.
And there's a $5,000 penalty associated with
22
this citation?
23
A.
Yes.
24
Q.
And, how was that penalty determined?
25
A.
It was determined by looking at the severity
CARLIN ASSOCIATES
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of the hazard and the probability, which is the gravity
calculation, and then it could be reduced by size
calculation, good faith or history.
4
5
6
7
8
9
10
11
Q.
And, what was OSHA's determination as to the
severity and probability?

A.
It was a high/greater violation which was
assessed a penalty at that time of $5,000.

Q.
And, for the Court's benefit, I think can you
explain why you determined it was a high gravity

severity violation?
A.
The severity depends on what the most
12
reasonably likely injuries could occur from the hazard.
13
In this case, it could be broken bones up to and
14
including death.
15
probability, the stairs are used a lot by all the
16
trainers, so the probability would be greater.
17
Q.
So that would be a high severity.
The
You mentioned size, good faith and history.
18
What determination did you make as to each of those
19
factors?
20
A.
Sea World had employees at the time of the
21
inspection, it was indicated they had 2,000 employees,
22
but they had more than 250, and when you have more than
23
that, there is no size reduction.
24
25
For good faith, there was a willful violation

issue in this citation, so there is no good faith
CARLIN ASSOCIATES
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percentage reduction.
And, for history back in 2006, Sea World of
California was issued a serious violation, and when
there's a serious violation back five years, no history
reduction is allowed.
6
7
8
9
10
11
Q.
And, the serious violation in California, did
it have anything to do with this type of violation?

A.
It was a kitchen worker who was burned on
some hot oil and suffered first- and second-degree burns

underneath.
Q.
If you would turn to the second page here,
12
Citation 2, Item 1, the willful violation, what
13
violation has OSHA charged or violations has OSHA
14
charged in Citation Number 2?
15
A.
This is a violation of the general duty
16
clause of the OSHA Act, which specifies that each
17
employer must provide each employee a place of
18
employment which is free of recognized hazards that are
19
likely to cause serious physical harm or death.
20
21
Q.
So, it's what is sometimes known as a 5(a)(1)
violation?
22
A.
5(a)(1), yes.
23
Q.
And, how many instances of 5(a)(1) violations
24
25
were cited here?

A.
Two separate instances.
CARLIN ASSOCIATES
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1
2
3
Q.
And, can you tell me just generally what
those instances are?

A.
The first instance involves animal trainers
have aggressive tendencies who was involved in the '91
death of a trainer up in British Columbia.
It was a whale that was known to
And, basically, it specifies that trainers
were exposed to struck-by and drowning hazards in that
they were allowed unprotected contact with Tilikum while
10
performing dry work performances on pool edges,
11
slide-outs and platforms.
12
13
14
Q.
And, what was the second instance that was
cited?
A.
That involves trainers working with killer
15
whales other than Tilikum.
Specifically, they were
16
exposed to struck-by and drowning hazards in that they
17
were allowed to engage in wet work and dry work
18
performances with the other killer whales without
19
adequate protection.
20
Q.
21
"water work"?
22
A.
Water work, excuse me.
23
Q.
Let's talk a little bit the Tilikum instance.
24
25
You say "wet work."
Have you heard the term
You mentioned what is involved in a 5(a)(1).

What is the hazard that's involved specifically with
CARLIN ASSOCIATES
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Tilikum?
A.
Tilikum.
Q.
5
6
The hazard is being struck by or drowned by
And, explain how those hazards are presented
or how Tilikum presents those hazards?

A.
Well, Tilikum, when they worked with him they
were doing dry work which is on pool edges, slide-outs
and platforms in close proximity to him in an area where
they could be pulled into the water by Tilikum and/or
10
struck by him.
11
Q.
12
Did you make a determination as to whether
the Employer recognized this hazard?
13
A.
Yes.
14
Q.
And, what was your determination?
15
A.
Well, the hazard was that Tilikum had his own
16
procedures, specific procedures for Tilikum to protect
17
the trainers purportedly.
18
and the Tili Talk was provided to all trainers that
19
basically said if you end up in the water with Tilikum,
20
you're going to die.
Also, there's a Tili Talk,
21
Interviews with three managers, the one who
22
is the supervisor for animal training, Ms. Mariot, she
23
specified that in the Tili Talk, you tell them that
24
killer whales are dangerous; however, there's one killer
25
whale, Tilikum, that if you end up in the water with
CARLIN ASSOCIATES
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him, you're going do die.
specified that if you end up in the water, you don't
want to fall in the water with Tilikum because if you
do, you're potentially going to die, and the second
assistant supervisor for animal training said you don't
want to end up in the water with Tilikum because you'll
never get out.
8
9
The assistant supervisor
And, the trainers were all cognizant or aware

of the hazards associated with being involved with
10
Tilikum; that you did not want to end up in the pool
11
with him.
12
13
14
Q.
Is there anything in Tilikum's past that
played into the recognition of the hazard?

A.
Well, again, as specified here, he was
15
involved along with two other killer whales up in
16
British Columbia in the death of a trainer up there, Ms.
17
Keltie Byrne.
18
Q.
And, there's been testimony about a second
19
death that happened at Sea World involving Daniel Dukes.
20
Did that play any role in the determination of
21
recognition of a hazard?
22
23
24
25
A.
It was taken into consideration, since there
was another fatality that he was involved in.

Q.
And, then, was there any mention of special
procedures for Tilikum?
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930
A.
Yes, there are procedures.
They actually
have specific ones for dealing with Tilikum, and no
water work, but they do allow the dry work where they
are in close proximity to Tilikum.
Q.
And, was there any other documentation or
manuals that indicated that Sea World recognized the
hazard of working --
8
9
A.
There was the introduction in the Shamu
Stadium area manual that basically stated that working
10
with the animals is potentially dangerous.
11
we work with are not domesticated, many of them are
12
large and powerful.
13
potential for serious physical injuries.
14
the trainers maintain top physical condition and follow
15
all the safety and departmental protocols, the hazard of
16
injury or the risk of injury is reduced.
17
reduced; it's not eliminated.
18
19
Q.
The animals
In working with them, there's a

However, if
However, it's
So, they're recognizing that the hazard is
still there?
20
A.
Yes.
21
Q.
Did you make a determination as to whether it
22
was a feasible abatement method or methods that Sea
23
World might implement and having implemented in working
24
with Tilikum prior to February 24, 2010?
25
A.
Yes, they could have not allowed animal
CARLIN ASSOCIATES
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trainers to have any contact with him without a physical
barrier protecting them from him.
Q.
And what do you mean by "physical barrier"?
A.
Some type of physical barrier, a wall, a
guardrail or something that prevents the contact between
them and Tilikum.
7
8
9
Q.
In what way or what types of contact would
the barrier be intended to prevent or protect against?

A.
Being Tilikum reaching out, grabbing a
10
trainer and pulling them in or coming out of the water
11
and striking them.
12
13
14
Q.
Would the barrier have any effect on the
trainer falling into the water?

A.
That would actually prevent them -- if
15
there's a wall there or a guardrail, that would keep
16
them from falling into the water unintentionally.
17
18
19
Q.
Now, do you know whether Sea World has abated
this violation as to Tilikum?

A.
From my understanding, immediately after the
20
accident, they stopped the -- that's the other one --
21
but what they have done is from the description the show
22
currently, is the trainers are not up in the stage area.
23
They're actually down below behind the plexiglas
24
barrier.
25
contacted by Tilikum.
So, they're not in an area where they could be
CARLIN ASSOCIATES
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1
2
3
4
Q.
So, has Sea World abated the violation
alleged as to Tilikum?
A.
If the show is going on the way it's been
described to me, yes.
Q.
And, this citation item was classified as
willful?
A.
Yes.
Q.
First of all, what is a willful violation?
A.
A willful violation is one that the Employer
10
commits with an intentional disregard or plain
11
indifference.
12
Q.
Plain indifference to employee safety?
13
A.
Yes.
14
Q.
And, what did you determine in that regard
15
16
17
18
19
20
that led you to issue a willful violation as to Tilikum?

A.
The determination was that allowing this
contact to proceed or continue was plain indifference.

Q.
Can you explain what that determination was
based on?
A.
Okay, well, the compliance officer gathered a
21
lot of the information on incidents in the past.
22
were a number of incidents that could be classified as
23
aggressive with other whales that could have led to
24
serious injuries, and there were also a number of
25
injuries since 1987 at Sea World Parks where trainers
CARLIN ASSOCIATES
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There
933
were actually injured, some seriously.
Then, there were the special procedures for
Tilikum.
recognized that this was hazardous and trainer physical
fitness and protocols would reduce the risk but not
eliminate it.
that the hazard was still there.
8
9
There was a Tili Talk, the fact that they
Q.
So, they allowed it to continue knowing
So, they knew there was a hazard, they knew
they hadn't completely eliminated it; and, yet, the
10
trainers continued to work in close proximity to
11
Tilikum?
12
A.
Correct.
13
Q.
The other instance with whales other than
14
Tilikum, tell me what was the hazard involved with the
15
whales other than Tilikum?
16
A.
This one, whales other than Tilikum, the
17
trainers were engaging in both water work and dry work
18
performances with the whales without adequate
19
protection.
20
21
22
Q.
And, when you say "performances," what do you
mean by "performances"?
A.
Performances are the shows that are put on at
23
Sea World.
24
conclusion of the show.
25
Q.
I guess that would include the prep and the
Would what include animal husbandry?
CARLIN ASSOCIATES
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A.
No.
Q.
Now, the hazards -- I'm sorry, you said
drowning and struck-by?
A.
Drowning and struck-by hazards.
Q.
And, the location that those hazards are
presented with the whales, other than Tilikum, the
citation says dry work and water work performances.
What is your understanding or what did OSHA conclude as
to dry work and water work?
10
11
Can you explain the
difference?
A.
Well, the water work is actually in the pool
12
swimming with the whale, performing the various tricks
13
with the whale.
14
to me because dry work is described as working on dry
15
locations up on the platforms and the stage area, but it
16
also includes slide-outs where they're actually in three
17
or four inches of water but that's termed dry work.
18
19
Q.
Dry work is honestly almost an oxymoron
So, dry work, as defined by Sea World, would
include the area where Mr. Brancheau was with Tilikum?
20
A.
Yes.
21
Q.
And, did you make a determination as to
22
whether Sea World recognizes the hazards doing dry work
23
and water work with the killer whales other than
24
Tilikum?
25
A.
Again, based on the list of incidents since
CARLIN ASSOCIATES
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1987, which either led to injuries to trainers or had
the potential for serious injuries and/or death.
was that knowledge.
manual, which says it's dangerous work, there is a
potential for serious physical injuries, but if you
follow protocols and stay in top physical condition, the
hazards are reduced but, again, not eliminated.
8
9
Q.
There
Again, the Shamu Stadium area
And, did you make a determination as to
feasible abatement as to working with the whales other
10
than Tilikum?
11
A.
Yes.
Again, they could be accomplished
12
through the use of physical barriers or through
13
something that was at least as effective as providing
14
the same or a greater level of protection for the
15
trainers.
16
Q.
Are you aware of anything that -- since the
17
citation was issued, have you become aware of anything
18
besides physical barriers that would provide the same or
19
greater protection than a barrier?
20
A.
Well, one thing, distance can be -- I don't
21
call it a physical guard, but it can be as effective as.
22
If you're a distance away from where the whale can
23
either reach you or grab you such that they can't do
24
that, that would be an equivalent to abatement of it.
25
Q.
And, do you know whether Sea World has
CARLIN ASSOCIATES
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abated the part of the violation alleging the hazard
involved with water work?
A.
It's my understanding that immediately after
the incident, the accident, they stopped all water work
so the trainers are not currently engaged in water work
with the killer whales.
7
8
Q.
That's since the time of the accident through
today?
A.
That's my understanding.
10
Q.
How about as to providing a barrier or a
11
distance with the other whales?
12
they have abated that part of the violation?
13
A.
Do you know whether
I haven't actually seen the show, but I
14
believe they're still doing dry work without a physical
15
barrier or other equivalent protection.
16
Q.
Now, this also was classified as a willful
17
violation.
18
classify it as a willful?
19
A.
What were the reasons or why did you
Pretty much the same issues where there were
20
would be incidents in the past involving injuries and/or
21
incidents that could have led to injuries or death.
22
There was the information in the Shamu Stadium area
23
manual talking about the work is potentially dangerous,
24
there is a risk of serious physical injuries; however,
25
again, if you follow the protocols and maintain physical
CARLIN ASSOCIATES
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condition, the risk of injury is reduced.
Q.
And, subsequent to the issuance of the
citation, have you become aware of other statements
within Sea World's documentation that indicates
recognition by Sea World to a willful level,
contributing to a willful finding of acknowledgment of a
risk?
8
9
A.
In my review of the case file prepared for
testimony here, looking at the Sea World animal
10
trainer's SOP, the very last page of the SOP is a
11
signature acknowledgement form.
12
that trainers have to sign it, and it says that, "I am
13
aware of or I realize there's an inherent risk in the
14
work that we perform, and I will inform my supervisor if
15
I ever become uncomfortable with or unable to take those
16
calculated risks."
17
Q.
And, in that it says
And, you have assessed or I guess proposed a
18
$70,000 penalty as to these two instances of a willful
19
violation.
20
this penalty?
21
A.
22
23
What factors did you consider in proposing
The gravity of the violation and, again, the
size, good faith and history.

Q.
And, I assume the fact of size, good faith
24
and history applied the same as they did to the serious
25
citation?
CARLIN ASSOCIATES
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A.
Yes.
Q.
And, as to severity and probability, what did
3
4
you find?
A.
What did you conclude?

Severity would be high in that unprotected
contact and contact without adequate protection in this
one is likely to cause serious physical harm or death,
so it's a high severity.
8
9
10
11
And, probability, the trainers were all

exposed to it, exposed to it during the shows so it
would be a greater probability.
Q.
Could you assign any particular percentile or
12
whatever as to how likely it was that an injury was
13
going to occur?
14
A.
15
MR. BLACK:
16
Just greater or lesser; greater probability.

I don't think I have anymore
questions for this witness, Your Honor.
17
JUDGE WELSCH:
18
MS. GUNNIN:

Yes, Your Honor.
19
---o0o---
20
CROSS-EXAMINATION
21
BY MS. GUNNIN:
22
Q.
Good afternoon, Mr. Grove.
23
A.
Good afternoon.
24
Q.
We've met on this case before and at your
25
deposition, correct?
CARLIN ASSOCIATES
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A.
Correct.
Q.
Let's talk a little bit about the 5(a)(1)
citation.
risk or that you materially reduce the risk?
5
6
7
8
9
10
11
A.
Is it a requirement that you eliminate the
You need to implement feasible and useful
abatement methods that will materially reduce the risk.

Q.
So, it's not an elimination.
It's to
materially reduce the risk, correct?

A.
Elimination, if the abatement method is
available, do eliminate.
Q.
And, there's no standard that's been
12
promulgated by OSHA with regard to working with killer
13
whales, is there?
14
A.
No.
15
Q.
In fact, there's no standard that's been
16
promulgated by OSHA with regard to working with any wild
17
or domesticated animal, is there?
18
A.
Not specifically.
19
Q.
Well, do you know of a standard that covers
20
21
working with wild animals?

A.
Some general standards could apply, such as
22
the personal protective equipment standard, one of those
23
but not a specific standard dealing specifically with
24
animals.
25
Q.
And, isn't it common that if there is no
CARLIN ASSOCIATES
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940
standard that applies, OSHA will look to industry
standards to see if there is any guidance from the
industry about how to comply?
4
5
6
7
A.
I'm looking at industry standards for
recognition and in some cases common sense.

Q.
In this case you, in fact, looked at an
industry standard, didn't you?
A.
Yes, the AZA standard.
Q.
I'm going to show you --
10
11
MS. GUNNIN:
I guess we'll need to get it
marked first.
12
(Whereupon, Respondent's Exhibit R-5 was marked
13
14
BY MS. GUNNIN:
15
Q.
16
17
Mr. Grove, can you identify what I've just
handed you that's been marked as Exhibit R-5?

A.
This is the Association of Zoos and
18
Aquariums, the accreditation standards and related
19
policies, 2010 edition.
20
21
22
23
24
25
Q.
And, is that the standard that you were
referencing when you mentioned the AZA standards?

A.
I believe so.
I don't know if it was an
earlier version or the 2010 version.

Q.
I'll represent to you that that's actually
what your Counsel in this case has produced to me as
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part of the OSHA inspection file.
by your inspector, Ms. Padgett?
So, it was gathered
A.
Yes.
Q.
Would that refresh your memory that that is
5
6
the standard that you reviewed?

A.
I did review it, but since you say it's the
same one that you gave her, yes.
from the file.
Q.
Did you review it?
10
A.
Generally.
11
entire thing.
12
Q.
Did you look at Page 19 of that standard?
13
A.
Yes, I did.
14
Q.
And, on Page 19 of that standard, there are
15
It had to be the one
I don't know that I read the
two paragraphs that reference killer whales, correct?
16
A.
Yes.
17
Q.
Did you review that?
18
A.
Yes.
19
Q.
And, in your review of that standard, did you
20
find that, in fact, Sea World was in compliance with
21
that standard?
22
A.
Actually, no.
23
Q.
Well, they're accredited by the AZA, correct?
24
A.
My understanding is they are.
25
Q.
It's an accrediting standard.
CARLIN ASSOCIATES
So, if they're
(216) 226-8157
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accredited by the AZA, then they would have to be
following that standard, correct?
A.
I imagine the AZA found that they were.
Q.
You don't promulgate standards for the AZA,
do you?
A.
No, I do not.
Q.
So, you wouldn't be able to form an opinion
8
9
10
11
12
about the accreditation standards from the AZA?

A.
I think I can form an opinion about a
standard that's put in front of me.

Q.
But, the AZA has accredited Sea World as you
understand it, correct?
13
A.
Correct.
14
Q.
So, they would be following the guidance set
15
forth by AZA, correct?
16
A.
AZA found that they did, apparently.
17
Q.
Why wasn't it important to consider that
18
standard when considering the issuance of the citation
19
in this case?
20
A.
We looked at industry standards because there
21
may be relevant information in there gathered from the
22
industry itself.
23
knowledge.
24
25
Q.
Again, we also looked at Employer
So, you disregarded the industry standards in
this case, correct?
CARLIN ASSOCIATES
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A.
We didn't disregard.
We just felt that we
had enough for the Section 5(a)(1) violation, based on
Employer recognition.
Q.
So, would OSHA have more knowledge about
industry practice with regard to maintaining killer
whales in captivity than the industry standard?
7
8
9
10
11
A.
We might have more knowledge of what a hazard
Q.
Well, the standard addresses a potential
is.
hazard, doesn't it?

A.
Well, it states sufficient to maintain
12
potentially dangerous animals, e.g., bears, killer
13
whales, sharks, large felines, venomous snakes and
14
others must have appropriate safety procedures in place
15
to prevent attacks and injuries by these animals.
16
17
18
Q.
And, it goes further and gives some guidance
about what the institution can do, correct?

A.
Well, it talks about appropriate response
19
procedures must also be in place, these procedures must
20
be practiced whenever injuries result from these
21
incidents or written account outlining the causes of the
22
incident, how the injury was handled, and a description
23
of any resulting changes either safety procedures or the
24
physical facility must be prepared to maintain for five
25
years from the date of the incident.
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1
2
3
Q.
That sounds very similar to what Sea World
was actually doing, doesn't it?

A.
Possibly.
However, it says, "Must have
appropriate safety procedures in place to prevent
attacks and injuries by these animals."
in place did not prevent attacks or injuries by these
animals.
Q.
The procedures
Killer whales were injuring employees.

Well, let's talk about that.
At Sea World of
Florida, prior to February 24th, how many years had
10
passed since they had had any kind of injury or any
11
incident related to killer whales?
12
A.
If we received those incident reports, and
13
I'm not sure we actually did, but I believe the last
14
reported incident was 2005 or so.
15
16
MR. BLACK:
Judge, are you looking for what
page number?
17
JUDGE WELSCH:
18
MR. BLACK:
I think the page number is 1704.
19
MS. GUNNIN:
It's actually Page 19 of the
20
Yes.
standard.
21
BY MS. GUNNIN:
22
Q.
So, you didn't find that there had been any
23
incident, much less injury, for several years prior to
24
the February 24th incident?
25
A.
Based on the information we received which,
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again, I'm not sure was comprehensive, there were no
documented injuries since 2005 at Sea World Florida;
however, there were numerous injuries at the other Sea
World Parks working with killer whales.
Q.
And, you understand that the employees,
trainers at Sea World were interviewed by Ms. Padgett in
this case, correct?
A.
A number were, yes.
Q.
And, there has been no testimony that there
10
has been an incident other than one in 2006 in this
11
case.
12
13
MR. BLACK:
Your Honor, we would object.
Is
that a question or is that -- there's been no testimony.
14
MS. GUNNIN:
15
JUDGE WELSCH:
16
BY MS. GUNNIN:
17
Q.
I'm asking a question.

Overruled.
If you're aware.
If there's been no testimony about an
18
instance, say, from early 2006 in this case, do you have
19
any other evidence in your file or from speaking with
20
your inspector of injuries that occurred from that time
21
prior to February 24, 2010?
22
A.
Sea World Florida, no.
23
Q.
So, wouldn't that be a reasonable
24
interpretation by the Employer that their safety
25
protocols were working if they were having a trend that
CARLIN ASSOCIATES
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1
2
was going down significantly of injuries?

A.
They might interpret it that way, but they
also said that this will reduce the risk, but not
eliminate it.
of injury, serious physical injury or death working with
the killer whales was there.
7
8
Q.
So, they were still aware that the risk
Wouldn't that have been a material reduction
of injuries?
A.
Can you ask that question again, please?
10
Q.
Well, I think that 5(a)(1) we covered earlier
11
is not just eliminating, which they had actually, but it
12
would definitely be a material reduction of injuries if
13
they hadn't had any in four years, correct?
14
A.
It's a material reduction of the hazard.
15
Q.
Yes.
16
A.
The hazard is still there when you're working
17
with killer whales.
18
procedures may have had some impact, it may have been
19
luck, the whales just didn't have a moment where they
20
went off protocol, but the potential was still there at
21
any given moment for a whale to injure or kill a
22
trainer.
23
Q.
24
25
They may have been -- the
What is your basis for giving an opinion that
it's merely luck?

A.
It's not an opinion.
CARLIN ASSOCIATES
I said it could have
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1
2
3
been.
Q.
Do you have any experience yourself working
with killer whales?
A.
No.
Q.
Do you know anyone within OSHA who has
A.
I'm not aware of any.
Q.
Turning to an issue in terms of recommending
a feasible abatement method in this case, how is it that
10
OSHA can give an opinion about a feasible abatement
11
method in the case when there is no expertise about
12
working around killer whale?
13
A.
When the hazard is contact with the killer
14
whales without adequate protection or without any
15
unprotected contact, it's not that hard to determine
16
that the feasible abatement method is to eliminate that
17
unprotected contact and put a barrier.
18
Q.
Well, OSHA cited in this case a willful
19
citation and, yet, the evidence that was presented at
20
Sea World of Florida was that there had been no injuries
21
to any killer whale trainers for several years prior to
22
February 24, 2010, correct?
23
A.
Correct.
24
Q.
So, wouldn't that be an indication that the
25
Employer was not plainly indifferent or acting with
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reckless disregard in this case?
A.
The fact that the manual talks about its
being potentially dangerous and you're exposed to the
potential for serious physical harm, injuries, and we're
reducing it but not eliminating it, the fact that there
is a form of acknowledgement, signature acknowledgement
form they have to sign saying there are inherent risks
in the work you do as a trainer, and if you don't feel
comfortable with that anymore or you don't want to take
10
those calculated risks, tell your supervisor.
11
an acknowledgement that at any time you could be injured
12
and/or potentially killed by a killer whale.
13
Q.
There is
Wouldn't it be reasonable that you have your
14
trainers working with the killer whale that you would
15
want them to be very aware and aware of safety protocol
16
that they need to follow in the workplace?
17
A.
True.
18
Q.
So, wouldn't that acknowledgement be a part
19
of the Employer's attempt to ensure that the trainers
20
are aware that they need to follow the protocol?
21
A.
Follow the protocols which will reduce your
23
Q.
Materially reduce the risk.
24
A.
If they follow the protocols, if they don't
22
25
risk.
miss a precursor, if they don't do something wrong as
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1
2
most humans do.

Q.
How about in talking about a protective
barrier -- actually, backing up from that a bit, you
said that those were confined to show in your testimony
today, but do you recall that when you were deposed, you
said that the citation addressed all close contact with
killer whales; not simply shows?
8
9
A.
During the deposition, you strayed into an
area that wasn't addressed by the citation, and I
10
assumed you were talking about abatement or of the
11
hazards.
12
And, honestly, if you read the citation,
13
there's no way to come to the conclusion that it covers
14
anything but performances.
15
Q.
It's clearly stated there.
Well, I asked you:
16
"But this citation clearly goes to all
17
interactions with the killer whale, correct?"
18
And you said, "Uh-huh."
19
"Because it's not just concern with show
20
interaction, you're concerned with any kind of
21
close contact with a killer whale, correct?"
22
23
24
25
And you said:
"Contact where the whale could
strike or drown someone."

A.
We're concerned with it, but the citation did
not address it; did not cover it.
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When we issue a citation, giving an example,
we go into a complaint inspection on a combustible dust
hazard, and the complaint says there's an unapproved
dust collection system in a particular department.
go in and find that's true, we will issue a 5(a)(1)
citation for that violation involving that dust
collector.
8
9
However, if the Employer knows there are

similar dust collectors in other departments in other
10
buildings, it's inherent on them to take protective
11
action and address those hazards as well.
12
We
Q.
So, by saying that, you're saying you may not
13
have cited that particular instance, but you are
14
expecting, as OSHA, that they will abate similarly.
15
You're not saying that as long as there's no show, they
16
can do water work, are you?
17
A.
18
Q.
I mean, if it's strictly a show performance
19
you're concerned about, if they wanted to be in the back
20
pool and not put on a show but get in the water with the
21
killer whales, are you saying that would be okay?
22
A.
What we're saying is the standard cited and
23
the violation specifies that you have to address the dry
24
work performances for Tilikum, you have to address the
25
water work and dry work performances for the other
CARLIN ASSOCIATES
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951
whales.
If you're aware of some other interaction
where the trainers are exposed to a hazard, as a
responsible Employer, you should look to address that
and materially reduce the risk of those interactions as
well.
Q.
And, that would, in fact, be OSHA's
expectation that you abate all of that; not that you
just abate it for show performances, correct?
10
11
A.
Not for this violation.
The citation only
addresses the performances.
12
Q.
So, they can do that in the back.
They can
13
have in water work in the back without putting on a
14
show?
15
A.
Again, if they're aware of other activities
16
that expose trainers to a hazard, as a responsible
17
Employer, they're required to address that too to be
18
sure to address it, but not by this citation.
19
Q.
Well, if the concern is close contact, as you
20
said in your deposition, then, what is the difference
21
between any type of close contact they're having with
22
the killer whales?
23
A.
This was a fatality inspection where we
24
focused on the actual fatality and the events
25
surrounding that, and we issued a citation dealing with
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1
2
3
4
5
6
the performances.
Q.
Well, there was no fatality from the show
performance in water, was there?

A.
This was dry work where the actual accident
happened.
Q.
Correct.
So, this isn't just applying to the
fatality.
in water work with the trainers, and that's not what was
going on that resulted in the fatality, correct?
10
A.
You actually wrote the citation that covers
However, we're looking at what was involved
11
in the fatality, and involved in the fatality was
12
performance or activity during a performance.
13
And, we focus on Tilikum initially, but as we
14
got into the inspection and saw the incident reports,
15
and saw the injuries, it became obvious Tilikum wasn't
16
the only problem.
17
whales, so we expanded it to include the interactions
18
with all whales during performances.
19
Q.
Trainers were being injured by killer
And, you say trainers were being injured by
20
the other killer whales, but you have no evidence that
21
they were being injured at Sea World of Florida by the
22
other killer whales during the time that you were
23
conducting your inspection, correct?
24
A.
During the six months we were inspecting?
25
Q.
Yes.
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953
A.
Ongoing inspection?
Q.
Yes.
A.
Well, at the time of our inspection, you had
stopped all water work with the whales.
Q.
Prior to the inspection time frame, the
citation was issued on August 23rd, so you looked back
on February 23rd.
injured when they were doing in-water work with the
killer whales on that date?
10
A.
Any evidence that trainers were
I believe as of August 23rd when we -- well,
11
August 24th (sic) was the accident, and from that point
12
on, my understanding is you ceased all or Sea World
13
ceased all water work.
14
inspection to when the citation was issued, there
15
wouldn't have been any injuries because there was no
16
water work taking place.
17
Q.
So, from the date of the
And, you understand that on February 23rd,
18
that was the date that your compliance officer looked
19
at.
20
conducted that day, and reviewed a videotape of it.
21
That was part of the file.
22
part of the inspection process.
She looked at the Believe Show that had been
You understand that was a
23
A.
On August 23rd?
February 23rd?
24
Q.
February 23rd.
25
A.
And, the fatality occurred on February 24th?
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Q.
Yes, but as part of the inspection there was
a request to review the videotape of the February 23rd
show, and there was consideration of what was being done
on February 23rd, correct?
5
6
A.
If she reviewed it, sure.
And if she got it,
I'm sure it was reviewed.
Q.
But you didn't review that?
A.
I don't recall.
Q.
So, when you issue a 5(a)(1), your concern is
10
11
12
13
the hazard, correct, that you have identified?

A.
Correct, it's the hazard, not the particular
accident.
Q.
And, the hazard in this case that you
14
identified, there were two hazards; drowning or struck-
15
by, correct?
16
A.
Correct.
17
Q.
And, the feasible abatement methods were not
18
limited to show performances, were they?
19
A.
The citation is limited to performances.
20
Q.
Well, if you look the citation itself that
21
has been handed to you by your Counsel, if you look at
22
the wording of the feasible abatement method, it doesn't
23
say "during show performances," does it.
24
A.
For Instance (a) or (b)?
25
Q.
Either.
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A.
It says among other methods would be to not
allow animal trainers to have any contact with Tilikum
unless they're protected by a physical barrier.
Q.
So, that is not limiting not to allow animal
trainers to have any contact during shows with Tilikum,
right?
A.
It's suggested or recommended feasible means
of abatement is not the defining verbiage.
verbiage is the actual instance description where it
10
11
12
13
The defining
talks about the performances.

Q.
And, the same would be true in Instance (b).
There's not a limitation to the shows?

A.
Again, the limitation is in the verbiage of
14
the actual violation which says water work and dry work
15
performances.
16
Q.
And, you understand that at the time of the
17
February 24th incident, that there was -- the show had
18
concluded; that it didn't occur during the show?
19
A.
Again, the violation is not for the actual
20
accident.
21
close contact interaction during the show which from
22
viewing the Connell video, there was a lot of close
23
contact.
24
25
It's for the hazard, and the hazard is the
Also at the time that Ms. Brancheau was

interacting with Tilikum, there were still guests in the
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area.
what the definition is of the conclusion of the
performance.
ended.
Somebody was still videotaping, so it depends on
Q.
In our mind, the performance hadn't really
Even though the announcer, who was at the
show, said clearly on the tape, "That concludes our
show," in your mind, it was still going on?
8
9
A.
observing.
People were still there watching.
They were
However, again, the violation is not for a
10
particular accident.
11
with the interactions during the entire performance.
12
Q.
It's for the hazard associated
So, there again, as long as it's not being
13
conducted during a show performance, Sea World could
14
have close contact with the killer whales?
15
A.
The citation only applies to performances, so
16
if you abated the performances, you have abated the
17
citation.
18
aware of other interactions, where they're exposed to
19
the hazard, you should look at that and take action to
20
materially reduce the hazard.
21
Q.
But as a responsible employer, if you are
Would OSHA cite Sea World if they were having
22
close contact with the killer whale outside of the show
23
context?
24
A.
25
Theoretical and hypothetical.
whether we were even there.
CARLIN ASSOCIATES
It depends on
Now, if we were doing an
(216) 226-8157
957
inspection, we might look at that, and we would have to
make a whole separate determination.
Q.
Why do you think there is a difference
between what they're doing in the show versus what
they're doing to care for the animals?
A.
animals.
Q.
9
10
I don't know what they do to care for the
And you don't know whether they come into
close contact to care for the animals?

A.
I assume they do, but I don't have personal
11
knowledge of what they do when they're caring for them.
12
And, again, that's not the subject of the citation.
13
Q.
In the course of the inspection, your
14
compliance officer interviewed Dr. Chris Dole at Sea
15
World.
16
17
Are you aware of that?
A.
I know she interviewed a lot of folks.
know she interviewed him.
18
Q.
You did know she interviewed him?
19
A.
Yes.
20
Q.
And Dr. Dole is a veterinarian?
21
A.
From my understanding.
22
Q.
Or one of the veterinarians, I should say.
23
So, with that proffer, what was the purpose
24
of interviewing the veterinarian if you weren't
25
concerned with any of that information?
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A.
I don't know particularly why she interviewed
him.
They interview a lot of people during an
investigation.
Q.
In looking of the incident reports, did you
review the incident reports, by the way, that were
accumulated?
A.
Some of them, yes.
Q.
Did you look to make a determination of
9
10
11
incidents that were occurring during shows versus

incidents that occurred at other times?
A.
Some did; some didn't.
The idea was there
12
was a potential in interacting with whales that there
13
could be serious physical injury or death.
14
Q.
Well, if this citation only applies to shows,
15
did you not consider any of the incident reports that
16
happened outside of shows?
17
A.
We were focused on the fatality investigation
18
and, again, interactions just seeing whether there were
19
injuries, and there were more than a few injuries during
20
performances.
21
Q.
22
23
Serious injuries.
And, again, those were not at Sea World of
Florida, correct?
A.
Again, Sea World of Florida works killer
24
whales, Sea World whales.
25
Sea World killer whales.
Other parks were working with

There is a potential.
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1
2
Q.
Mr. Grove, in looking at the citation in this
case, does it say "show" on the citation itself?
A.
It says "performances."
Q.
Now, in the file there was also an inspection
file from Cal-OSHA?
A.
Correct.
Q.
What is Cal-OSHA?
A.
That's a state plan, OSHA state plan in the
9
10
11
12
State of California.
Q.
And, it's a requirement that a state plan be
equally as effective as the Federal plan, correct?

A.
They're required to be at least as effective
13
as and we monitor them to ensure that they continue to
14
be at least as effective as.
15
Q.
When there is a state plan, then Fed OSHA
16
actually does not conduct the inspection, correct?
17
would be the state plan that was doing that?
18
A.
It depends.
The state plan does private
19
sector employers.
20
South Carolina.
21
bases, the maritime industry, federal employment.
22
Q.
I was area director in Columbia,
We had jurisdiction over the military
So, for the private sector, it would be the
23
state plan doing the inspections and managing that
24
process, correct?
25
A.
It
Private sector employers working on military
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2
3
bases.
Q.
In this case with Sea World, that wouldn't
apply, correct?
A.
In California, it would not.
Q.
And, you're aware there was an inspection by
6
7
8
Cal-OSHA of Sea World of San Diego in 2006-2007?

A.
That was the inspection of the incident
involving Kenneth Peters?
Q.
Did you review that inspection file?
10
A.
Yes, I did.
11
Q.
And, you're aware that Cal-OSHA did not issue
12
any citations related to working in close proximity with
13
killer whales?
14
A.
Correct.
15
Q.
And, in fact, they made some suggestions to
16
17
18
19
Sea World; you're aware of that?

A.
There's been an information memorandum, I
believe, that they initially issue.

Q.
And, in that information memorandum, there
20
was no recommendation to not have close contact with
21
killer whales, was there?
22
A.
I don't remember.
23
Q.
Did you consider when looking at the issue of
24
a willful citation in this case the fact that Cal-OSHA,
25
a state plan, mandated to be at least as effective as
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the Federal plan, did not issue a citation.
they issued suggestions to Sea World, none of those
suggestions said, "Don't have close contact," nor did it
require physical barriers during shows or otherwise at
Sea World?
6
7
8
9
10
A.
And, when
I was looking at the specific facts and the
information gathered from our investigation.

Q.
So, you disregarded what Cal-OSHA's
recommendations were?
A.
I didn't regard it.
I just didn't know -- I
11
didn't have enough information to know why they
12
recommended what they did and why they did not issue a
13
citation.
14
Q.
15
correct?
16
A.
Yes.
17
Q.
And, they looked at past incidents that had
18
Yet, they were looking at a serious incident,
occurred at Sea World of San Diego, correct?
19
A.
Yes.
20
Q.
Turning again to the citations in this case,
21
if you look at Instance (b) of Citation 2, Item 1, the
22
willful citation, there are several methods that are
23
recommended, other than physical barriers, as
24
potentially feasible.
25
What is a decking system?
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A.
A decking system is a term utilized to
capture what Sea World is talking about they were
working on which was the raising floor, I believe they
call it; raising platform.
5
6
15
And, are you aware of whether any such
concern exists today?

A.
I believe Sea World is working on one.
don't know that it exists yet.
13
14
That was a term we come up with to capture
Q.
11
12
A.
what Sea World was defining or describing.
9
10
And, that was not a term that Sea World had
used?
7
8
Q.
Q.
And oxygen supply systems, what does what
A.
Another thing Sea World said they were
mean?
16
working on, which was I believe some new vests that
17
would actually have an oxygen supply in it that if
18
someone was trapped by a whale underwater, they would
19
have a source of air.
20
21
Q.
Are you aware whether that system exists
today?
22
A.
No.
23
Q.
And, there's another catch-all that says,
24
"other engineering or administrative controls that
25
provide same or greater level of protection."
CARLIN ASSOCIATES
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What
963
would be examples of engineering or administrative
controls that would feasibly abate?
A.
An administrative control could be keeping
everybody a safe distance away where there is no
potential of being contacted or struck-by a killer
whale.
Q.
Wouldn't an administrative control also be
protocols that were demonstrating to the Employer that
they had materially reduced the hazard?
10
A.
It would be a administrative control but not
11
one that I would think would provide the same or a
12
greater level of protection.
13
Q.
And, that would be without knowledge of how
14
you work with killer whales that you would have that
15
opinion, correct?
16
A.
That would be looking at the incident reports
17
and the number of injuries that have occurred since 1987
18
and working with the killer whales.
19
Q.
Okay, but specifically, looking at Sea World
20
of Florida in this case, no evidence of any incident for
21
several years, that would be an indication that the
22
protocols were an effective administrative control,
23
correct?
24
A.
25
It could indicate that, but there are
instances or situations where -- I know we disagreed
CARLIN ASSOCIATES
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about this on the deposition, but we had people say we
might have had our punch presses guarded for 30 years,
and nobody has ever been injured.
the risk.
in there in the die," and then one day somebody puts
their hand in there.
Q.
They didn't eliminate
They just told people, "don't put your hands
And, there is a big difference with a punch
press because there's a standard that was promulgated
through rulemaking through OSHA, correct?
10
A.
Or going back to my example of the dust
11
collection system, we have a place that has combustible
12
dust where you could have a combustible explosion.
13
fact that they've done nothing to that or they change
14
the filters occasionally, but the wrong kind of filters,
15
and they don't have it filtered 99.97 percent, it hasn't
16
blown up, but lo and behold, one day it does.
17
dust explosions, one up in Southern Georgia, where they
18
worked with that same equipment for years and nothing
19
happened and then 13-plus people died in an explosion.
20
21
22
Q.
We're not trying that case.
The
We've had
We're talking
about killer whales.

In this case, I think you've already
23
answered, but the fact that they did not have any
24
injuries nor any incidents because you understand that
25
the incident reports do not have any demonstrated
CARLIN ASSOCIATES
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injury, correct?
A.
Correct.
Q.
So, they didn't have injuries nor incident
reports that had occurred several years prior to the
February 24th incident which would have been an
indicator that their administrative protocols for safety
were working?
A.
Again, that could be one interpretation.
Q.
I think I asked you during your deposition,
10
but you had been to Sea World prior to this incident of
11
February 24th, correct?
12
A.
A number of years ago.
13
Q.
And Sea World is very open about the fact
14
that they're working with killer whales, correct?
15
A.
That's one of their main publicity.
16
Q.
They did lots of the advertising that
17
represented that, correct?
18
A.
Yes.
19
Q.
So, it was not something that OSHA couldn't
20
have looked into had OSHA felt there was a hazard prior
21
to February 24th, correct?
22
A.
We just can't randomly drop into workplaces
23
and conduct inspections.
We would have had to have a
24
complaint, a referral or some other information to
25
justify us entering the facility under the Barlow
CARLIN ASSOCIATES
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decision.
being there.
3
4
Q.
We can't just come in without a rationale for
Well, in fact, if you see a potential hazard,
you can self-refer, correct?
A.
You can make a referral if you see a hazard.
Q.
Because that's done all the time at
construction sites, correct?
A.
Yes.
Q.
And, since Sea World has openly demonstrated
10
what they do, and if you had an opinion that looked
11
like a hazard, you could have self-referred; is that
12
correct?
13
A.
I could have, but to clarify that, I was an
14
Area Director down here so I could have made a referral.
15
I could not have self-referred.
16
17
18
Q.
How were you made aware of the abatements
that were being discussed by Sea World?

A.
I believe they discussed some issues with the
19
inspector, and she mentioned to me and I believe it was
20
discussed during the meeting we had at our Regional
21
Office.
22
Q.
And, these were methods that Sea World had
23
said that they were going to engage in research and
24
development of, correct?
25
A.
Correct.
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1
2
Q.
Not in existence at the time of this
incident?
A.
MS. GUNNIN:
Correct.
Your Honor.
JUDGE WELSCH:
MR. BLACK:
JUDGE WELSCH:
Mr. Black?
Just as a few short questions.
Go ahead.
---o0o---
10
11
BY MR. BLACK:
12
Q.
Mr. Grove, Ms. Gunnin asked you some
13
questions about incidents and injuries and why you
14
considered or what the record showed as to Sea World of
15
Florida.
16
A.
Yes.
17
Q.
And, first off, why didn't you limit your
Do you recall those questions?
18
consideration of the evidence to just the injuries that
19
occurred?
20
A.
Because there are incidents where there were
21
cases, a few of them where the whale dragged the trainer
22
to the bottom of the pool and kept him there for awhile
23
and then surfaced and everything was fine.
24
wasn't injured; but just as easily, the whale could have
25
kept him down there until the trainer would have drowned
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968
as an example.
Q.
So, what did you consider that evidence of
when you were issuing a citation?
you classify an incident that doesn't result in an
injury?
6
7
A.
I mean, how would
The evidence of a potential of a serious
physical injury and/or death.
Q.
A close call?
A.
Many of them were.
10
Q.
Now, why did you limit your consideration of
11
12
incidents and injuries to just Sea World of Florida?

A.
Sea World has parks at different locations.
13
I know their incident reports when they have those, they
14
share them among the parks, and then the parks comment
15
and I think there's even a corporate response back that
16
what you're doing is okay.
17
They're working with killer whales, they're
18
all Sea World killer whales, and working with the whale
19
shows no matter what park you're at, the potential is
20
there for a serious injury and/or death.
21
Q.
So, did that go to the recognition factor?
22
A.
Yes.
23
Q.
You're aware of an incident involving killer
24
25
whale Keto in December of 2009 at Loro Parque?

A.
At Loro Parque in 2009 that resulted in the
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death of a trainer.
Q.
And, how did you consider what part, if any,
did the Loro Parque December 2009 incident which led to
the trainer's death affect the citations that you issued
here?
A.
Well, they had four killer whales on loan
from Sea World and also a Sea World trainer on
assignment down there.
recognition that this can happen in interacting with the
10
killer whales.
11
Q.
12
13
So, it just shows again the
Was it important to you in considering this
incident that it happened prior to February of 2010?

A.
It happened on Christmas Eve, December 24th,
14
so it happened before this, and it should have put
15
everyone on heightened awareness that there was a
16
potential for death in working with the killer whales.
17
Q.
Ms. Gunnin, I know, asked you some questions
18
about other potential abatement methods, such of the
19
decking and the like, that are indicated on the
20
citation.
21
22
23
What is the reason that you listed those or

indicated those on the citation?
A.
Just to show that for the other whales, you
24
either use a physical barrier or you could end up coming
25
up with an alternative that provided equal or greater
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protection.
For Tilikum specifically, we wanted a
physical barrier because of the history and the fact
that he was involved in three fatalities.
Q.
With the other whales, did you make a
determination as to whether a decking system or oxygen
supply system or anything else might constitute what you
said was equivalent protection?
A.
No, it's just putting it out there, saying
10
that Sea World may come up be with maybe a combination
11
of abatement methods or something totally different that
12
would be provide equal or greater protection.
13
MR. BLACK:
Thank you.
14
15
JUDGE WELSCH:
16
Anything else, Ms. Gunnin?
17
MS. GUNNIN:
18
JUDGE WELSCH:
Thank you.
No, Your Honor.

Thank you, Mr. Grove.
I will
19
instruct you not to discuss your testimony with other
20
persons who may be called later as witnesses in the
21
case.
22
THE WITNESS:
23
24
25
Thank you.
(Witness Excused)
JUDGE WELSCH:
As we discussed, I think that's
going to conclude the hearing for this week.
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We're going to reconvene, as I said before, on
November 15th, I believe that's a Tuesday, at 9:00.
will send out an order to that effect, and as of right
now, we would be in Courtroom 1B in the same building,
the same location.
Before we adjourn, for the record, the Secretary
has identified 13 exhibits, C-1 through C-13, all of
which have been admitted into evidence.
The AZA?
10
11
MS. GUNNIN:
I move for the admission of that,
Your Honor.
12
13
JUDGE WELSCH:
Do you have any objections to the
AZA?
14
MR. BLACK:
15
with another witness.
16
17
JUDGE WELSCH:
No, I think we're going to use it
So R-5 is admitted without
objection.
18
(Whereupon, Respondent's Exhibit R-5,
19
previously marked, was admitted into evidence)
20
JUDGE WELSCH:
That being said, Respondent has
21
identified five exhibits, R-1 through R-5, all of which
22
have been admitted into evidence.
23
Before I adjourn until the 15th, is there anything
24
else, Mr. Black?
25
MR. BLACK:
Not at this time, Your Honor.
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MS. GUNNIN:
JUDGE WELSCH:
3
4
No, Your Honor.

We stand adjourned.
all very much.

---o0o---
(Whereupon, the proceedings were
adjourned without conclusion at
12:55 p.m.)
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25
CARLIN ASSOCIATES
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Thank you
973
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12

13
14
15
16
17
BY:__________________________
Norma Carlin
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----------------------------------- x
)
)
SECRETARY OF LABOR,
)
)
Complainant,
)
)
-vs)
)
)
)
Respondent,
)
)
)
------------------------------------x
OSHRC DOCKET
NO. 10-1705
13
14
VOLUME VI.
15
16
Before:
Judge Ken S. Welsch
17
Date:
Tuesday, November 15, 2011

9:00 a.m.
Place:

18
19
20
21
22
23
24
25
CARLIN ASSOCIATES
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975
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
APPEARANCES:
JOHN BLACK, ESQ.
Suite 7T10
(404) 302-5435
Suite 2400
(404) 525-8622
GEORGE COE, ESQ.
Suite 840
407-425-7118
17
18
19
20
21
22
23
24
25
CARLIN ASSOCIATES
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I N D E X
WITNESSES
Name
Direct
Cross
Peters
Scarpuzzi
Rokeach
989
1100
1175
1048
-
5
6
---o0o---
EXHIBITS
Complainant's
(None)
10
11
12
Description
Redirect
Recross
1066
-
Marked
Respondent's
(None)
13
14
15
16
17
18
19
20
21
22
23
24
25
CARLIN ASSOCIATES
(216) 226-8157
Admitted
977
Morning Session
9:00 a.m.
JUDGE WELSCH:
8
9
When we adjourned on September 23rd, the

Secretary was still proceeding with its case.
In the
10
interim, I've gotten a couple of requests or a couple of
11
motions that I need to deal with.
12
filed by Sea World, a Motion to Revoke Subpoena issued
13
to Ms. Bibes filed by Sea World.
14
Secretary -- have you filed a response to the motion,
15
did you say?
16
MR. BLACK:
17
JUDGE WELSCH:
The first is a motion
I understand that the
We have not, Your Honor.

You have not?
The basis, if I
18
understand it, Ms. Gunnin, of Sea World's motion is that
19
Ms. Bibes has not been identified as a witness on the
20
Secretary's list, has never been identified as a
21
witness, as well as she works for the parent company in
22
a public relations capacity and has no direct knowledge
23
of the incident or the activities that arise in these
24
citations?
25
MS. GUNNIN:
Yes, Your Honor.
CARLIN ASSOCIATES
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JUDGE WELSCH:
the purpose of Ms. Bibes?
MR. BLACK:
What is the Secretary -- what is
Your Honor, out of an abundance of
caution, we have subpoenaed her in case her testimony
would be become relevant to impeach what witnesses
called by Sea World testify to on certain subjects that
we anticipate she would be to impeach if necessary.
don't see -- we don't know whether that's going to be
necessary or not until they testify.
We
Of course, we
10
would have to issue a subpoena now, serve the subpoena
11
now to get her.
12
13
JUDGE WELSCH:
You have never filed a motion
with me to supplement you witness list?
14
MR. BLACK:
15
JUDGE WELSCH:
That's correct.
You have never identified -- you
16
agree she's not on anybody's witness list.
17
on your witness list, she's not on the Respondent's
18
witness list?
19
20
21
MR. BLACK:
She was not
That's correct, Judge.
We don't
intend to call her in our case in chief.

JUDGE WELSCH:
I think that's too speculative.
22
I'm going to grant Respondent's Motion to Revoke the
23
Subpoena of Ms. Bibes.
24
The second is a written request by Sea World for
25
me to visit the park to see behind the scenes what Dr.
CARLIN ASSOCIATES
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Duffus had looked at some time during this week either
in the evening or before the hearing on Friday.
was filed on October 27, 2011.
That
The Secretary filed a response on November 1,
2011, objecting to any site visit by me to Sea World to
see the show, basically on the basis that it would raise
issues involving what the conditions were at the time of
the accident versus what the conditions are now, and
that the Secretary represents they would need to call
10
further witnesses or witnesses that have already been
11
called.
12
My practice is I have made several visits over the
13
years.
14
a facility dealing with a scaffold situation, and I have
15
done that over the years, but I have always done it when
16
neither party objects or one party asks and the other
17
party does not object to it, so I have done it.
18
In fact, just a month ago I made a site visit to
In this situation, I think because the Secretary
19
is objecting and I don't want to step into some problem
20
or create some problem that I'm not sure I would
21
anticipate, I'm going to decline, although hesitantly.
22
I would love to see the show, but I think under these
23
circumstances, I'm going to decline the Company's
24
request for me to visit the site during the pendency of
25
these proceedings.
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Now, if I understand it, the Secretary, I have not
seen it but the Secretary filed a Motion in Limine
regarding Mr. Andrews as an expert witness for Sea
World?
5
6
MR. BLACK:
Honor.
7
8
9
Mr. Andrews, that's correct, Your
JUDGE WELSCH:
that?
MR. BLACK:
I do not.
10
JUDGE WELSCH:
11
her scan me a copy.
12
13
14
Do you have an extra copy of
MR. BLACK:
I can print one up.
I can call my office and have
We'll be happy to provide you one
at the break or as soon as we can get one.

JUDGE WELSCH:
I can get one from my office,
15
but I'm going to hold that motion.
16
generally practice with regard to Motions in Limine.
17
expect the Company to put Mr. Andrews on the stand, and
18
if he's qualified as an expert, then I will so designate
19
him as qualified.
20
qualifications, then I will not designate him as a
21
qualified expert.
22
Limine prior to that point in time.
23
You all know how I

I
If he doesn't meet the
I do not tend to rule on Motions in
I don't know the basis of your motion.
24
look at it during the break.
25
being held.
CARLIN ASSOCIATES
I will
So, right now, that's
(216) 226-8157
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1
2
3
Are there any other outstanding motions or things

you want to bring to my attention?
MS. GUNNIN:
Yes, Your Honor.
Prior to the
beginning of the recommencement of the Secretary's case,
we would file a renewed motion on the subpoenas issued
to the three witnesses from San Diego, Mr. Scarpuzzi,
Mr. Peters and Mr. Rokeach, and I have handed you and
Secretary's Counsel a case that I would like to present
some argument on.
10
I understand your ruling the last time was that
11
Section 12(i) of the OSHA Act permitted the nationwide
12
subpoenas, and that references the NLRA, the National
13
Labor Relations Act.
14
There are no cases that address the OSHA subpoena
15
in a nationwide concept, but there are cases that
16
address the National Labor Relations Board subpoena
17
power, and I have handed a case to both you and
18
Secretary's Counsel that was issued from the Circuit
19
Court of Appeals of the DC Circuit, interpreting the
20
scope of a subpoena issued in a case that the National
21
Labor Relations Board was bringing against a company
22
called Cooper Tire.
23
And in that case Cooper Tire was located in
24
Mississippi.
The scope of the inspection was from the
25
Mississippi plant.
The issues involved a Mississippi
CARLIN ASSOCIATES
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plant and this is a request actually for documents to be
subpoenaed, and the documents were subpoenaed by the
Board in the District of Columbia.
The company declined to honor the subpoena, and
the Board took the issue to District Court, similar to
what the subpoenas would have to have done in an OSHA
context.
for enforcement.
Court and the Circuit Court analyzed the scope of that
They would have to be taken to District Court

And in that proceeding, the District
10
subpoena, and they analyzed whether or not the subpoena
11
was of such scope, and it was a nationwide type of
12
investigation that would permit the subpoena to be
13
enforced by the District Court.
14
And, in that case, the Circuit Court of Appeals
15
held that it was not, and they relied heavily on the
16
fact that it was not an issue that was nationwide in
17
scope.
18
I would also bring to the Court's attention that
19
there is a major difference between the Occupational
20
Safety and Health Act and the National Labor Relations
21
Act.
The National Labor Relations Act preempts state
22
law.
There is not a state law that would be considered
23
as effective is the NLRA, unlike the OSHA Act which
24
actually does have a provision for states to opt out of
25
coverage, and that's found in Section 18 of the Act.
CARLIN ASSOCIATES
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And, Section 18 actually allows states to opt out, and
when they opt out, they are no longer under the
enforcement of federal OSHA.
plan.
They have their own state
They're not only not under the control of federal
OSHA, but the Occupational Safety and Health Review
Commission does not have jurisdiction over those cases
either.
state plan, and the state plan develops their own
Those cases are actually maintained by the
10
adjudication system for those cases, and those cases
11
never even go to federal court.
12
court on appeal.
They go up to the state
13
So, with that being the backdrop, there is a
14
considerable difference between the National Labor
15
Relations Act and the OSHA Act just in the mechanism of
16
the Acts themselves.
17
the OSHA Act, it would be difficult for there to be a
18
nationwide inspection of a company, and in particular in
19
this case, with Sea World of Florida.
20
And, that would mean that under
Sea World of Florida is an independently
21
incorporated company here in Florida.
The issue is out
22
of Florida.
23
Diego.
24
OSHA could go in and inspect the park at San Diego
25
because California is a state plan that has been allowed
It does not involve issues out of San
It would, in fact, not be allowed that federal
CARLIN ASSOCIATES
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1
2
to opt out of federal jurisdiction.

Without that being in mind, I'm asking the Court
to reconsider the ruling on the subpoenas at issue in
this case because in a similar situation when the
Circuit Court of Appeals, the District Court of Columbia
looked at the issue even under the National Labor
Relations Act which does allow a nationwide inspection,
they did not find that subpoena enforcement was proper
in a situation of a company that was located in
10
Mississippi where the issues at hand were located in
11
Mississippi.
12
And, in fact, the Circuit Court of Appeals in that
13
decision said that the fact that it was not a nationwide
14
scope of an inspection was a key factor, and they said
15
the investigation concerned a single employer and a
16
single dispute related to union organizing activity at a
17
single plant.
18
at a particular place, and that place is Tupelo,
19
Mississippi.
20
The subject matter of inquiry is located
Therefore, if we accept NLRB's argument, which is
21
for nationwide subpoena, we will not be following
22
precedent, we will bring breaking new trail.
23
this case, Judge, I would say that to enforce the
24
subpoena issued to individuals in San Diego would be to
25
break new trail.
And, in
So, I would ask the Court to
CARLIN ASSOCIATES
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reconsider the issue of the subpoenas and to reconsider
revoking the subpoenas issued to the three San Diego
persons.
JUDGE WELSCH:
Ms. Howard-Fishburne, have you
had a chance to review the case?
Not in depth, Your
Honor, but just in response to Sea World's motion, Your
Honor, this is Sea World's third attempt to quash this
subpoena, and there has been a long history related to
10
the Secretary's attempt to get testimony from these
11
witnesses.
12
And, now, at the ninth hour, Sea World is coming
13
in renewing its request.
14
It's a 2006 case.
15
addressed formally in a motion during the seven weeks
16
that we were on recess.
17
This case is not a new case.
It's something that could have been
Additionally, while, yes, we admit that there was
18
not a nationwide investigation of all of the Sea World
19
Parks, Sea World does control the witnesses that have
20
been subpoenaed.
21
with any other attorney or any other party related to
22
Sea World of San Diego.
23
at ever step even to get the witnesses here today, and
24
now they appear, the Government has paid for them to fly
25
across the country to testify.
The Secretary has not communicated
We've gone through Ms. Gunnin
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Some of this could have been alleviated if the
Government had been permitted to take depositions to
maybe even have alleviated them having to come here, and
so we would ask that the Court reject Sea World's
request for all of those reasons.
Thank you.
JUDGE WELSCH:
The case that Sea World has
presented to me is the NLRB versus Cooper Tire and
Rubber Company, and it's dated February 28, 2006.
10
guess the citation is at 438 Fed. 3rd 1198.
11
I've only kind of glanced at it, but in my mind,
12
it deals with an investigation by the NLRB in terms of
13
Cooper Tire.
14
little bit different.
15
I view this case at this juncture as a
The inspection has already been done.
Yes, the
16
inspection is limited to Sea World of Florida, the
17
Orlando facility.
18
individuals that have been subpoenaed in some fashion
19
may have testimony that relates to the issues that are
20
before me and have been subpoenaed as witnesses in this
21
case.
22
My understanding is that the three
As I have made it clear on the telephone with
23
Counsel in prior sessions, my decision in this case is
24
limited solely to Sea World of Florida, LLC.
25
not address the parent corporation, it will not address
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987
the San Diego facility or whatever other facilities that
are related.
of Florida facility here in Orlando, and the testimony
of the three individuals, if I find any of it relevant,
it's only going to be relevant to the issues that are
before me involving the Sea World of Florida facility.
And, any finding I make from their testimony is only
going to be in reference to the alleged violations that
were issued by OSHA involving Sea World of Florida.
10
It's going to address solely the Sea World
As I said, I'm not going to broaden it and make
11
any finding regarding the San Diego facility or any
12
facility other than the Orlando facility because that's
13
what is properly before me.
14
I view this decision in Cooper Tire as addressing
15
more an issue of nationwide investigation and gathering
16
information for an investigation that was being
17
conducted by NLRB involving a facility in Mississippi.
18
I view this as little bit different.
19
testimony that has relevance to an issue involving the
20
Orlando facility, not the San Diego facility, and that's
21
how I'm going to view their testimony.
22
doesn't relate to the Orlando facility, I'm not going to
23
consider it, and I may strike their testimony.
24
25
This is witness
And, if it
That being said, the motion to quash the subpoena

is denied.
Are there any other issues?
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MS. GUNNIN:
Judge, just to clarify, may I have
a continuing objection to the testimony of all three of
the San Diego witnesses?
JUDGE WELSCH:
Yes.
Let the record note that
Sea World has a continuing objection, and for the
record, since we need to make it clear, the three
individuals we're talking about are Mr. Mike Scarpuzzi,
Brian Rokeach and Ken Peters.
called to testify, then your continued objection will be
10
noted.
11
MS. GUNNIN:
12
JUDGE WELSCH:
13
MR. BLACK:
14
JUDGE WELSCH:
15
16
17
So, if and when they're

Anything else?
No, Your Honor.
Does the Secretary wish to call
her next witness?

MR. BLACK:
Thank you, Judge.
The Secretary
calls Ken Peters.
18
---o0o---
19
KENNETH J. PETERS,
20
21
22
JUDGE WELSCH:
Sir, for the record, would you
23
24
25
THE WITNESS:
Kenneth James Peters,
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K-e-n-n-e-t-h J. P-e-t-e-r-s.
Steamboat Springs Court, Chula Vista, California, 91915.
JUDGE WELSCH:
MR. BLACK:

Thank you Judge.
---o0o---
DIRECT EXAMINATION
BY MR. BLACK:
Q.
My address, 2457
Good morning, Mr. Peters.
How are you doing
today?
10
A.
Good.
11
Q.
Considering you have flown across the
12
country.
13
bit about your background.
14
Sea World?
15
16
17
18
A.
Would you tell me -- I want to talk a little

What is your job title at
I'm an assistant curator and animal training.
I currently work at Shamu Stadium.

JUDGE WELSCH:
For the record, that's in a San
Diego?
19
THE WITNESS:
20
BY MR. BLACK:
21
Q.
And, how long have you had that position?
22
A.
Assistant curator, I'm not sure.
23
2006 or 2007.
24
2000-ish, and I have been at the stadium since 1993.
25
Q.
Yes, sir, San Diego.
I think
I was a supervisor before that since
Did you start out as an associate trainer or
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apprentice trainer?
A.
trainer level.
Q.
And you said 1993?
A.
Yes, sir.
Q.
And, if you're already at the trainer level,
No, I started at Shamu when I was at the
does that mean you came from another part of Sea World?
A.
Yes, sir.
Q.
Where was that?
10
A.
Dolphin Stadium.
11
Q.
Whale and Dolphin?
12
A.
Yes, sir.
13
Back then, we had multi-species,
but it was Dolphin Stadium.
14
Q.
When did you a start at Dolphin Stadium?
15
A.
That was 1990.
16
Q.
Did you have any other Sea World jobs before
A.
Yes, sir.
17
18
that?
I worked in the Education
19
Department for about four months and Park Operations
20
before that in 1988.
21
22
23
24
25
Q.
And, do you hold any degrees after high
school?
A.
Yes, sir.
I have a BA in psychology, a
minor in geology from San Diego State University.

Q.
What year did you acquire that degree?
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A.
1989.
Q.
And, your duties have been in animal training
since 1993?
A.
Animal training since 1990.
Q.
And at Shamu Stadium since 1993?
A.
Correct.
Q.
And, at Shamu Stadium of California, they
only work with killer whales in Shamu Stadium, correct?
A.
Correct.
10
Q.
Now, Sea World of California is owned by Sea
11
World Parks and Entertainment?
12
A.
Correct.
13
Q.
And, that's the same entity or the same
14
corporation that owns Sea World of Florida, right?
15
A.
I believe so.
16
Q.
Now, as a trainer with Sea World of San
17
Diego, you have undergone training regarding working
18
with killer whales?
19
A.
Yes.
20
Q.
And, that's a continuing training that you've
21
had since the first day that you started in Shamu
22
Stadium?
23
A.
Yes.
24
Q.
And, do you still receive training as a
25
supervisor and as an assistant curator?
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A.
Yes.
Q.
Can you tell me what kind of training you
3
4
received in those supervisory roles?

A.
Well, my curator and my VP, they work mostly
with me with just on personal things with other
departments.
but I have other things that I do with other departments
outside of our department.
other companies that come in.
10
11
12
13
My job not only entails animal training,
We do special events with
Really, the things that they are working with

me on are mostly outside things.
Q.
Stuff outside of Shamu Stadium or stuff
outside of the animal training?
14
A.
For the most part.
15
Q.
Which part?
16
JUDGE WELSCH:
Which part?
17
THE WITNESS:
Say that again?
18
BY MR. BLACK:
19
Q.
Sorry, I interrupted you.
What you do deals
20
mostly with stuff -- that training is mostly stuff
21
outside of Shamu Stadium?
22
23
A.
Not mostly.
some of the stuff.
Some of the stuff deals with
I'm going to start over.
24
Q.
Okay.
25
A.
My curator will work with me right now on
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things in regards to guidelines for our stadium,
especially right now.
parks, he will inform me on those things in regards to
the guidelines that we are supposed so follow as a
company.
Q.
His communications with the other
When you say your curator, who specifically
are you referring to?
A.
Al Garver.
Q.
G-a-r-v-e-r?
10
A.
Yes.
11
Q.
And his title is curator of animal training?
12
A.
Yes.
13
Q.
How long has he been the curator of animal
14
15
16
training, roughly?
A.
I have no idea.
It's been a while; long
before me.
17
Q.
18
Scarpuzzi is?
19
A.
He is the VP of Zoological Operations.
20
Q.
And, he was the curator of animal training at
21
And Mike Scarpuzzi, tell us who Mike
some point, right?
22
A.
Yes.
23
Q.
And, when did he get promoted to VP of
24
25
Zoological Operations?
A.
I don't know.
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1
2
Q.
What is the working relationship between Al
Garver and Mike Scarpuzzi?
A.
Al is Mike's subordinate, I believe.
know if that's how you would say it.
boss.
I don't
Scarp is Al's
Excuse me, Mike Scarpuzzi is Al Garver's boss.
Q.
Mike Scarpuzzi sometimes goes by the nickname
"Scarp"?
A.
That's correct.
Q.
And, you said the curator informs you of the
10
guidelines right now.
11
right now?
12
13
A.
Safety guidelines, things that we're working
on to make our jobs consistent and more safe.
14
15
What guidelines are in place
Q.
When you say, "consistent," do you mean
consistent between the parks, the three Sea World Parks?
16
A.
Yes.
17
Q.
The three Shamu Stadiums?
18
A.
Correct.
19
Q.
And, you said to make them more safe.
How
20
are the guidelines now being worked on to make it more
21
safe?
22
23
A.
Well, I don't know all the details yet.
hasn't been completed.
24
Q.
When you say "it"?
25
A.
The guidelines.
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995
1
2
3
Q.
Have any of the guidelines been completed,
the new guidelines?

A.
Well, they've been working on them, and as
the park curators speak with one another, they let us
know what we're supposed to follow.
guidelines have not as yet been rolled out.
Q.
So, those
The curators at each the three Sea World
Parks are communicating with one another about new
guidelines?
10
A.
Yes.
11
Q.
And they're developing new guidelines?
12
A.
Yes.
13
Q.
And in the past before --
14
A.
Along with Chuck Tompkins and Julie, they're
15
all part of a group that are working together to make
16
everything consistent.
17
Q.
Julie is Julie Scarpena?
18
A.
Yes.
19
Q.
And, is the VP of Zoological Operations
20
involved in that as well?
21
A.
I don't know.
22
Q.
So, you don't know whether Mr. Scarpuzzi is
23
even involved in that?
24
A.
I don't know.
25
Q.
You understand that this case partly involves
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the death of Dawn Brancheau at Sea World of Florida?
A.
Yes.
Q.
And that happened in February of 2010?
A.
I don't know the exact date.
Q.
And, prior to her death, the curators of the
parks communicated with one another frequently about
safety?
8
9
10
A.
I mean, I'm assuming they did.
I don't know.
I'm not in the office with them, so I don't know.

Q.
But as assistant curator prior to Ms.
11
Brancheau's death, you saw communications from the other
12
Sea World Parks?
13
14
15
A.
Yes.
I mean, we talked periodically, but as
far as what my boss does, I don't know.

Q.
You do know, however, that the parks even
16
before Ms. Brancheau's death communicated about, for
17
example, safety standard operating procedures?
18
A.
I can't comment, really, on what the actual
19
communications are.
Most of the time, the
20
communications happen above me.
21
the assistant curators will contact one another about
22
behavior.
23
parks, I don't know.
24
discuss.
25
Q.
You know, periodically,
But, as far as what goes on between the

I don't know what the curators
I'm not in their office.

And, the assistant curators at each of the
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parks, why would they contact one another about
behaviors?
A.
Just, you know, entertainment, "Hey, how do
you train this behavior?"
for the show?"
Ocean, we want to communicate we each other to see how
we're doing different segments, different sequences.
just deals more with behavior.
Q.
"What are you guys working on
Or like new shows like Believe or One
Sometimes you communicate with one another
10
concerning behavior and safety issues involved in
11
behavior?
12
A.
We may communicate with one another if there
13
was an incident.
14
just to see what happened, but as far as, you know,
15
discussing safety in general, that's not for us.
16
for the curator.
17
18
Q.
It
I mean, we may talk to one another
That's
The curator level or potentially even the VP
of Zoological Operations?
19
A.
I don't know.
20
Q.
I want to turn your attention to one of the
21
whales at Sea World of San Diego.
22
named Kasatka?
23
A.
Yes.
24
Q.
And, that's K-a-s-a-t-k-a?
25
A.
Yes.
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Q.
Is it Kasatka or Kasatka?
A.
Either/or is fine.
Q.
Now, you mentioned the term "incidents."
4
5
6
7
When you use that term, what do you mean?

A.
Anything out of the ordinary; that's not
normal.
Q.
Can you be a little more specific?
I assume,
first of all, we're talking about incidents involving
the killer whales, right?
10
A.
Correct.
11
Q.
And, what would be anything out of the
12
ordinary or that's not normal?
13
A.
Contact that was deemed aggressive.
14
Q.
Contact by the whale into the trainer?
15
A.
Correct.
16
Q.
What other things would rise to the level of
17
an incident?
18
incident?
19
A.
Does it have to be contact to be an
Not necessarily.
If there were -- sometimes
20
if there are precursors, you know, a mouth swipe, a
21
squirt, you know, they come out past their pecs or
22
flippers; things of that nature.
23
Q.
When you say a mouth swipe, what do you mean?
24
A.
The whale may come out -- sometimes they
25
won't come out past their pectoral flippers so they
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swipe more intensely, I guess.
word.
3
4
Q.
I don't know the right
By swipe, what are they doing when they
swipe?
A.
It's very quick.
Q.
Moving their head like that?
A.
Yes, mouth open.
Q.
I'm sorry?
A.
Mouth open.
10
Q.
So, they're swiping their head from left to
11
right or right to left?
12
A.
Yes.
13
Q.
At the trainer or towards the trainer?
14
A.
Mostly.
15
Q.
And, you mentioned a squirt.
16
17
What is a
squirt?
A.
It's just a precursor behavior just to let
18
you know that whatever the situation is happening,
19
they're not okay with whatever it is.
20
Q.
How does the killer whale squirt?
21
A.
They squirt water out of their mouth.
22
Q.
Kind of like --
23
A.
They take water in and use their tongue to
24
25
squirt the water out.

Q.
I don't understand the question.
None of us here works at Sea World.
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shouldn't say none of us.
The Judge doesn't work at Sea
World.
make it clear for the record.
I don't work at Sea World, so I'm just trying to

So, forgive me.
A.
That's okay.
Q.
But, squirt is also a behavior or a trick, if
you will, that Sea World --
A.
It's a behavior.
Q.
It's something that Sea World asks the whales
to do as well, right?
10
A.
Yes.
11
Q.
So, is it an unwanted or unasked for squirt
12
that's a precursor to possible aggression?
13
A.
Correct.
14
Q.
And, you said come out past pectoral
15
flippers.
You were talking about a whale coming out of
16
the water onto a ledge or slide-out past its flippers on
17
its side when it hasn't been asked to come out?
18
A.
Correct.
19
Q.
And, so there have been numerous incidents
20
where one of these types of things have happened at Sea
21
World, right?
22
MS. GUNNIN:
23
question.
24
experience at Sea World of Florida.
25
There's been no foundation about Mr. Peters'
JUDGE WELSCH:
Sustained.
CARLIN ASSOCIATES
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(216) 226-8157
1001
lay a foundation.
Go ahead.
BY MR. BLACK:
Q.
Let's back up here.
Since 1993 until you
became a supervisor in 2000, how much of your time as a
trainer was spent in Shamu Stadium?
A.
Before 1993?
Q.
No, from 1993 to 2000.
A.
All of it.
Q.
All of it.
10
What kinds of things did you do
in that time at Shamu Stadium?
11
A.
12
Q.
You worked with the killer whales, right?
13
A.
Correct, work with killer whales, do shows,
14
education shows, night shows for companies that come in
15
for special events.
16
things.
17
18
Q.
We do commercials for TV, various
In your job you were involved in training the
killer whales to do certain things?
19
A.
Correct.
20
Q.
In fact, that was your primary function as a
21
trainer, right?
22
A.
Yes.
23
Q.
And, you did this by applying the method of
24
operant conditioning that Sea World employs with the
25
killer whales, right?
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A.
Yes.
Q.
Trust based, positive reinforcement?
A.
Yes.
Q.
And, you did this by applying Sea World's
standard operating procedures?
A.
Yes.
Q.
And, following the Shamu Stadium manual?
MS. GUNNIN:
Judge, I'm going to object again.
This still is not going to the point of Mr. Peters'
10
experience in Orlando.
11
any experience working at the Orlando Park or working
12
with killer whales at the Orlando Park.
13
JUDGE WELSCH:
14
MR. BLACK:
We have yet to hear how he has
Mr. Black?
Your Honor, I don't think that Mr.
15
Peters ever worked at the Orlando Park.
16
the foundation to get to --
17
JUDGE WELSCH:
We're laying
I'm going to allow you some
18
latitude because, again, of the problem of not being
19
able to take depositions and that.
20
allow you a little latitude.
21
So, I'm going to
The problem I'm having, though, is I'm not sure I
22
see so far a relationship between what he's testifying
23
to as to what occurred in San Diego to the Orlando
24
facility, whether or not the training is the same, the
25
situations are the same, the shows are even the same or
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anything else, and as assistant curator, I don't know at
this point as to how much he knows about any comparisons
to the Orlando facility.
4
5
6
7
MR. BLACK:
And he may not.
That may have to
come through other witnesses.

JUDGE WELSCH:
As I've indicated, I'm not going
to make a decision that San Diego violated anything.
MR. BLACK:
Certainly.
JUDGE WELSCH:
That is under a state plan.
10
11
That's a different proceeding totally.

MR. BLACK:
Understood, Your Honor.
The
12
issue, though, of recognition and sharing of incidents
13
and incident reports and what they learn from that,
14
we've already had lots of testimony on that, and this is
15
sort of laying the foundation so we can get into a
16
discussion about incidents.
17
18
JUDGE WELSCH:
Go ahead, I'll allow you to
proceed.
19
MR. BLACK:
20
BY MR. BLACK:
21
Q.
Now, you have worked with the whale, Kasatka?
22
A.
Yes.
23
Q.
And, Sea World has had problems with Kasatka
24
25
Thank you, Judge.
in the past?
MS. GUNNIN:
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characterization of that question.
ask Mr. Peters about his experience with Kasatka as
opposed to characterizing it as problems in the past.
JUDGE WELSCH:
Sustained.
I think he needs to
I think you need to
rephrase the question.
You're not calling this man, or
are you calling him as an adverse witness?
MR. BLACK:
We are, Your Honor.
This is an
employee of Sea World.
Sea World of Florida, their interests are aligned with
And, clearly, while they're not
10
Sea World Corporation, Sea World of Florida.
11
were told by Ms. Gunnin that we could not contact these
12
management employees directly.
13
She can't have it both ways.
Thus, we
She can't say that
14
they are both management people whom we represent and
15
you can't talk to them directly, and then say that
16
they're completely separate, and there's nothing to do
17
with -- that Sea World of Florida and Sea World of
18
California have no alignment.
19
20
21
22
23
JUDGE WELSCH:
Is the Secretary's position that
the assistant curator is a management person?

MR. BLACK:
Well, that's certainly the position
that was taken by Respondent.

JUDGE WELSCH:
24
adverse witness?
25
MR. BLACK:
You called Mr. Peters as an
That's correct, Your Honor.
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1005
fact, all three San Diego witnesses are management level
persons, according to Respondent, to whom we were not
allowed to talk.
JUDGE WELSCH:
I understand.
MS. GUNNIN:
Judge, may I respond to that?
JUDGE WELSCH:
Yes.
MS. GUNNIN:
As an adverse witness, it would
have to be an employee of the Company that's the subject
of these citations.
10
World of Florida.
11
of Florida.
12
13
14
These are not employees of Sea
They are not management of Sea World
That's one of the continuing problems we have had

the entire time with the San Diego witnesses.
JUDGE WELSCH:
Mr. Black, I'm giving you a
15
little latitude.
I'm going to give you latitude in
16
terms of asking your questions, but I would rather you
17
stay more to Direct Examination questions and not
18
leading questions.
19
MR. BLACK:
20
We would ask at some point if it becomes apparent,
21
22
I will do so as best I can.
that we be allowed to treat him as a hostile witness.

JUDGE WELSCH:
If appears that he's not
23
answering your questions, I'll entertain that later on,
24
but at this juncture, what I'm hearing so far is he's
25
attempting to answer your questions.
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I don't view him
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as being hostile to answering any of your questions, so
I would rather you deal with him on a Direct Examination
basis.
BY MR. BLACK:
Q.
Mr. Peters, did you meet with attorneys to
prepare for your testimony in this case today?
A.
Did I meet with them?
Q.
Yes.
A.
No.
10
Q.
Did you talk with them?
11
A.
Yes.
12
Q.
When did you talk to them?
13
A.
Friday.
14
Q.
How long was that conversation?
15
A.
About 30, 45 minutes maybe.
16
MR. BLACK:
And, Your Honor, I don't know, I
17
haven't heard a ruling from the Court.
18
a position where I'm not sure whether there is an
19
attorney-client relationship, given that the client in
20
this case is Sea World of Florida.
21
Sea World of California.
22
We're in sort of
Mr. Peters works for
I'm assuming since he is not represented in this
23
proceeding by Counsel, I can inquire into what those
24
discussions were.
25
JUDGE WELSCH:
I don't know.
CARLIN ASSOCIATES
Ms. Gunnin, are
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1007
1
2
you going to be objecting?

MS. GUNNIN:
Judge, I will object to that
because an attorney can represent more than one entity,
as you are aware, and I did represent San Diego in our
capacity as their representation.
Mr. Black delving in attorney-client communications.
JUDGE WELSCH:
go into attorney-client.
MR. BLACK:
So, I would object to
I'm not going to allow you to
The problem, of course, Your
10
Honor, is we're getting it both ways from the
11
Respondent; both that they represent they are not
12
aligned, their interests are not aligned.
13
to the these witnesses; we cannot.
14
to take depositions of them.
15
like whatever we're trying to do --
16
17
JUDGE WELSCH:
proceed on.
We were not allowed
So, it's starting to feel
I hear your frustration.
Let's
Go ahead, ask your questions.
18
MR. BLACK:
19
BY MR. BLACK:
20
Q.
21
They can talk
You have said, "yes," you have worked with
the whale Kasatka before?
22
A.
Yes.
23
Q.
And, when was the first time you worked with
24
Kasatka?
25
A.
Well, I worked with her -- I didn't work with
CARLIN ASSOCIATES
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1008
her when I first started there.
there -- I can't remember, sir.
Within a year of being
Q.
Somewhere some 1994, 1995?
A.
1994-ish.
Q.
And, in working with Kasatka, you were
required to know her history?
A.
Yes.
Q.
And, that's part of the Sea World operant
9
10
conditioning program to know what is in the past history

of a killer whale?
11
A.
Yes.
12
Q.
And, that applies at Sea World of California
13
14
15
16
as well as at Sea World of Florida?

A.
Assuming.
I don't know; I don't work at
their park.
Q.
Okay, that's a fair point, but you know that,
17
for example, part of history is incidents, right?
18
Incidents that whales have as part of their history,
19
right?
20
A.
Yes.
21
Q.
And, those was recorded in an incident
22
report, correct?
23
A.
Yes.
24
Q.
So, incident reports are shared between all
25
the parks, right?
CARLIN ASSOCIATES
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1009
A.
Yes.
Q.
In fact, an incident report is written up by
the trainer involved, right?
A.
Yes.
Q.
And, then, the next step is for the curator
or supervisors at what park to comment and issue their
analysis and what they think ought to be done, right?
A.
Yes.
Q.
And, then, the next step is it's sent to
10
corporate and the other parks to have them review it and
11
add any input they have, right?
12
A.
Yes.
13
Q.
So, even prior to 1994 when you first worked
14
with Kasatka, Kasatka had been involved in some
15
incidents, right?
16
A.
I don't know all of them.
17
Q.
And, I'm not asking a specific one.
18
19
saying there were some incidents prior to 1994?

A.
To be perfectly honest, I don't remember what
20
happened before 1994.
21
incident reports for a long, long time.
22
I'm just
Q.
Fair point.
I haven't seen or looked at those
Since you started working with
23
Kasatka in 1994, she was involved in some incidents,
24
right?
25
A.
Since 1994?
CARLIN ASSOCIATES
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1010
Q.
Yes, sir.
A.
Yes.
Q.
And, in fact, you were involved in at least a
couple of those, right?
A.
Yes.
Q.
And, the incident reports, those are
7
8
9
10
something that each of the parks keep records of, right?

A.
I know we keep them -- at San Diego, we keep
our incident reports, yes.

Q.
And, I think the incidents -- you said the
11
incident reports are written when anything out of the
12
ordinary, not normal happens?
13
A.
Mostly aggressive.
14
Q.
Aggressive?
15
A.
Yes or what is deemed aggressive.
16
Q.
And, that's the same standard for writing a
17
corporate incident report at each of the parks; that is,
18
San Diego writes up what it thinks is an incident deemed
19
aggressive and Florida and Texas are supposed to follow
20
that same standard, right?
21
A.
I would assume so.
22
Q.
And, the reason it's important to record
23
these incident reports is so that there's a record of
24
how the whale has behaved in the past, right?
25
MS. GUNNIN:
CARLIN ASSOCIATES
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1011
continuing leading that Mr. Black is doing with the
witness.
3
4
You previously made a ruling on that issue.
JUDGE WELSCH:
Mr. Black, rephrase your
question.
BY MR. BLACK:
Q.
Is it important to record such behaviors?
A.
Yes.
Q.
Why is that?
A.
It allows us to learn from them so other
10
trainers cannot make similar errors.
11
Q.
Learn from it so?
12
A.
So we can be better.
13
Q.
And, did you say other trainers not make
14
similar errors?
15
A.
Yes, in whatever was happening.
16
learning tool.
17
Q.
They're a
I want to turn your attention to an incident
18
report from 1999 involving Kasatka and you.
19
recall that incident?
Do you
20
A.
Yes.
21
MR. BLACK:
Judge, may I approach?
22
MS. GUNNIN:
Judge, may I state an objection
23
prior to going into the incident report?
24
report is already into evidence.
25
again, and according to your ruling, you're not looking
CARLIN ASSOCIATES
The incident
We're going over that
(216) 226-8157
1012
at San Diego and the incident was at San Diego.
Everything related to incident with Kasatka happened in
San Diego.
So, the Secretary has not stated how that is
relevant to Orlando.
that they have called in their case in chief.
questioned them about the incidents, and any recognition
of hazard, any knowledge has been examined by Orlando
witnesses.
10
They have had Orlando witnesses

They have
We are now going to relive San Diego incidents
11
with San Diego witnesses that should not have a bearing
12
on the Orlando procedures.
13
JUDGE WELSCH:
Mr. Black?
14
MR. BLACK:
Your Honor, again, the incidents
15
that have happened in San Diego and the recognition of a
16
hazard in the industry at killer whale parks of which
17
San Diego is a part is so clearly relevant as to -- I'm
18
almost at a loss for words, but you know me well enough
19
that that's not likely to ever happen.
20
The recognition is not limited to what Florida
21
recognizes.
Industry recognition includes San Diego and
22
Texas.
23
killer whales in the world.
24
20 percent, an owner of 15 percent of those killer
25
whales does and recognizes is so clearly relevant to
Sea World owns roughly 60 percent of the captive
CARLIN ASSOCIATES
Asking what 10 or
(216) 226-8157
1013
industry recognition which is another way, an additional
way to show hazard recognition.
3
4
JUDGE WELSCH:
Let's move on.
BY MR. BLACK:
Q.
Mr. Peters, to make it easier, I'm going to
take out from Complainant's Exhibit 6, Sea World Page
681 through Sea World 689.
it's easier for you to look at.
10
Let me just clip this so
Are you familiar with that incident report?
11
A.
Yes.
12
Q.
Have you looked at it recently?
13
A.
No.
14
Q.
Now, this is an incident that happened --
15
MR. BLACK:
16
BY MR. BLACK:
17
Q.
18
1999, correct?
19
A.
That's what it says, yes.
20
Q.
Do you have any reason to
21
A.
'99 is the only thing I remember.
22
Q.
And, the trainer involved was you, Ken
23
Judge, it's Page 681 through 689.
This is an incident that occurred on June 12,
--
Peters?
24
A.
Yes.
25
Q.
And, at the time, you were a senior trainer?
CARLIN ASSOCIATES
(216) 226-8157
1014
A.
Yes.
Q.
And, it also lists other trainers present.
Do you see that?
A.
Yes.
Q.
And, it lists Ms. Robin Sheets?
A.
Yes.
Q.
Robin was an hourly supervisor?
A.
Q.
And, Lisa Hugally (ph)?
10
A.
Yes.
11
Q.
Assistant supervisor, right?
12
A.
13
Q.
And, is an assistant supervisor above or
14
15
below an hourly supervisor?

A.
I don't know if the parks have in their
16
management or lower management, they're just named
17
differently.
18
19
Q.
Do you know at the time whether Lisa reported
to Robin or Robin reported to Lisa?
20
A.
Lisa reported to Robin.
21
Q.
And, then, John Hargrove, trainer, was also
22
present?
23
A.
Yes.
24
Q.
Can you tell me does present mean close
25
enough to the incident to be involved in the incident,
CARLIN ASSOCIATES
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1015
1
2
if you will?
A.
To be perfectly honest, I don't remember
where people were stationed or at.
water.
I mean, I was in the
I wasn't really watching them.
Q.
That's a fair point.
My question is a little
bit different.
document, Sea World's 681, it says "other trainers
present"?
Do you see on the first page of that
A.
Yes.
10
Q.
Can you tell me when it says that, does it
11
mean that the trainers were close enough to the incident
12
to be involved in the incident in some way?
13
14
A.
Involved, do you mean like to help or to
watch?
15
Q.
To work as a spotter, to yell something out?
16
A.
Yes, they would all be watching.
17
Q.
So, does that mean that they would be able to
18
potentially intervene if necessary?
19
A.
Yes.
20
Q.
Now, still on the first page, this incident
21
happened during a show, right?
22
A.
Yes.
23
Q.
It says that several times in the report.
24
25
references the show on the first page, right?

A.
It was in a show.
CARLIN ASSOCIATES
(216) 226-8157
It
1016
Q.
On the fourth page of this document, in the
lower, right of the page, Sea World Page 684, that looks
like an account of the incident or a description of the
incident; do you see that?
A.
Yes.
Q.
And, there's the description or the
assessment that you and Mr. Sheets made, right?
would look --
A.
I'm going to read it.
10
Q.
Certainly, take as long as you need.
11
A.
(Witness Complies).
12
Q.
Are you ready?
13
A.
Yes.
14
Q.
So, in the second paragraph on that Page
16
A.
Yes.
17
Q.
-- you and Robin assessed the situation after
15
18
If you
684--
Kasatka's calf, Takar, had left the control trainer?
19
A.
Yes.
20
Q.
And it says, "We decided it was safe to enter
21
the water."
Have I read that right?
22
A.
Yes.
23
Q.
And, you described how calm Kasatka is,
24
25
right?
A.
Yes.
CARLIN ASSOCIATES
(216) 226-8157
1017
1
2
Q.
And Kasatka had no vocalizations or body
gestures?
A.
Correct.
Q.
And no facial expression?
A.
Yes.
Q.
Was this -- were you assessing physical
precursors that might be present at that moment?
that what that assessment is?
A.
Yes.
10
Q.
And you observed none?
11
A.
Correct.
12
Q.
And, then, you considered social or
13
Is
behavioral precursors, right?
14
A.
Yes.
15
Q.
And, you and Robin, I guess, judged that
16
Kasatka had been in similar social situations with her
17
calf, Takar, previously, right?
18
A.
Yes.
19
Q.
And, you concluded that this particular
20
situation wasn't that different from the prior
21
situations, right?
22
A.
Yes.
23
Q.
So, you and Robin decided it was okay for you
24
25
to enter the water?

A.
Yes.
CARLIN ASSOCIATES
(216) 226-8157
1018
Q.
Now, the other trainers who were present that
we talked about, they could have advised against it or
said, "No, you shouldn't enter the water because Kasatka
has not been in this type of situation before," right?
A.
Yes.
Q.
Now, in hindsight, after the incident
occurred, Sea World determined that entering the water
was an error, right?
A.
I need to read it.
10
Q.
And you could --
11
A.
Can I read it, please?
12
Q.
You can take as long as you need.
13
If you
want to look at Page 5 and Page 6?
14
A.
(Witness Complies).
15
Q.
I would draw your attention to the top of
16
Page 6, under "Corrective Steps Taken," in the first
17
paragraph.
18
A.
Okay.
19
Q.
So, it was determined that it was an error to
20
enter the water with Kasatka in this situation, right?
21
A.
This says it was an error to enter the water,
23
Q.
You don't sound like you agree with that.
24
you disagree?
25
A.
22
yes.
No.
I don't disagree with it.
CARLIN ASSOCIATES
(216) 226-8157
I'm just
Do
1019
1
2
answering your question.

Q.
3
4
Very good.
Fair enough.
And turning back to Page 4, Kasatka was still

calm after you first entered the water, right?
A.
Correct.
Q.
And, then, she -- the word in here is
"abruptly swam away," right?
A.
Yes.
Q.
So, she's apparently no longer calm, right?
10
A.
Yes.
11
Q.
And, if I'm reading this right, the whale
12
tried to grab your feet with her mouth?
13
A.
Yes.
14
Q.
And, she tried to grab your left foot then
15
your right foot, right?
16
A.
Yes.
17
Q.
And, then tried to grab your hand?
18
MS. GUNNIN:
Judge, are we going to have him
19
walk him through a series of leading questions, or are
20
we going to have some Direct Examination questions?
21
JUDGE WELSCH:
Mr. Black, let's get --
22
MR. BLACK:
Your Honor, I don't think
23
actually that the rule prohibits leading questions with
24
an exhibit in front of the witness.
25
JUDGE WELSCH:
But, I don't need to have it
CARLIN ASSOCIATES
(216) 226-8157
1020
reiterated.
questions regarding it?
3
4
It says what it says.
MR. BLACK:
Yes, this is to lay a foundation,
Your Honor.
JUDGE WELSCH:
BY MR. BLACK:
Q.
So, do you have any
Okay.
And, obviously, you don't want the whale to
grab a foot or hand, right?
A.
Correct.
10
Q.
Because then the whale could drag you
11
anywhere, right?
12
A.
Yes.
13
Q.
And, could pull you under water?
14
A.
Yes.
15
Q.
Now, at the bottom of Page 4, Sea World 684,
16
the last paragraph, it says that you and Robin or
17
perhaps Robin decided to end the show at that time?
18
A.
Robin decided to end the show, yes.
19
Q.
And --
20
A.
I wasn't really thinking about the show too
Q.
You were just thinking about what?
21
22
23
24
25
much.
What were
you thinking about at that point?

A.
I was out of the water, and I was like, "Huh,
I'm out."
CARLIN ASSOCIATES
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1021
Q.
This is good?
A.
Yes.
Q.
And, it's good because that could have been a
4
5
potentially bad situation?

MS. GUNNIN:
continuing leading questions.
The questioning has not
changed, and he's been directed to do Direct questions.
JUDGE WELSCH:
Sustained.
THE WITNESS:
Sir, may I say something?
10
If she wanted grab me, she would have.
11
didn't.
12
she could have grabbed me.
13
14
15
Let's move on.
I was in the water.
MR. BLACK:
She
If she really wanted me,
I move to strike as
nonresponsive, Your Honor.

JUDGE WELSCH:
Overruled.
He gave you a
16
response, and you can follow up with your next question.
17
He was responsive to your question.
18
19
20
21
MR. BLACK:
JUDGE WELSCH:
I think you just need to ask your
question again.
BY MR. BLACK:
23
Q.
25
I would just note for the
record that the witness has given a nonresponsive --
22
24
Yes.
So, when you said that it was good to be out
of the water, what do you mean?

A.
That she didn't grab me.
CARLIN ASSOCIATES
(216) 226-8157
1022
1
2
Q.
But, did you know whether or not she could
have grabbed you?
A.
Say again?
Q.
Well, you said that she --
A.
I'm sorry, I'm just trying to understand the
6
7
8
question.
Q.
Certainly, that's a fair point.
I thought I
heard you say if she wanted to grab you, she could have?
A.
Yes.
10
Q.
But, she didn't, right?
11
A.
Correct.
12
Q.
So, why did you say that you felt good to be
13
out of the water, and you weren't focused on whether or
14
not to end the show?
15
16
17
18
A.
Because she didn't grab me and, as you said,
pull me anywhere.
Q.
So, are you saying that that was a risk or
something bad that had been avoided?
19
A.
Obviously, that's undesired behavior.
20
Q.
Now, on the incident report, this,
21
incidentally, is a format that's generally followed in
22
incident reports during your time at Shamu Stadium?
23
A.
During my time at Shamu Stadium, yes.
24
Q.
So, there are questions on the pages asking
25
for information; is a fair statement?
CARLIN ASSOCIATES
(216) 226-8157
1023
A.
Yes.
Q.
And, are those questions asked because those
are things that Sea World wants to know the answer to as
part of its analysis?
A.
I think, like I said, I believe the questions
are asked to help us learn from any situation we have so
we don't make similar errors.
8
9
10
Q.
And, does Sea World expect the trainers to be
able to answer those questions that are on the incident

report?
11
A.
I mean, I would assume so.
12
Q.
Do you think that the questions are
13
rhetorical; that is, they don't care whether they're
14
answered or not?
15
A.
No.
I think these questions are important.
16
It's good for the experience in our parks to comment on
17
the questions.
18
Anytime you have something happen, you want
19
experienced personnel to comment to help you avoid
20
similar situations in the future.
21
Q.
Okay, and so on Page 5 where it asks, "What
22
could have been done to prevent this incident?" it
23
describes -- what corrective steps could have been taken
24
to prevent -- could have been taken on Page 6?
25
A.
On Page 6?
CARLIN ASSOCIATES
(216) 226-8157
1024
Q.
And, is it describing on this Page 6 what in
hindsight Sea World considered to be errors that were
made as well as what to do the next time?
A.
Can I read it?
Q.
Sure.
A.
Q.
Now, earlier, you testified, if I heard you
Yes.
correctly, about part of the incident reports were so
you could learn so that trainers don't make similar
10
errors again?
11
A.
Correct.
12
Q.
And, so part of the point of the incident
13
reports is to evaluate whether the trainer did something
14
wrong?
15
A.
I don't know if it's to evaluate if the
16
trainer did something wrong.
17
situation to see if there's something in the situation
18
we could have done differently.
19
blame.
20
Q.
It's just to evaluate the
It's not to place
No, and I don't mean that, but it is saying,
21
was an error made that we don't want to repeat, for
22
example; is that fair?
23
A.
It's fair to say that, yes, an error in this
24
situation, that if we can change it a little bit may
25
have avoided this happening.
CARLIN ASSOCIATES
(216) 226-8157
1025
Q.
So, is the purpose of that so you can learn
in the future?
A.
Correct.
Q.
And, the first error that's listed on Page 6
-- and tell me if I'm reading this correctly -- had to
do with entering the water when Kasatka had left the
control trainer.
A.
referring to.
10
Q.
It doesn't say that exactly.
I'm trying to figure out what you're
Well, on Page 6 where it says, "We should not
11
have entered the water with Kasatka due to social
12
precursives that existed," do you see that?
13
14
A.
I see it says, "Should not have entered the
water with Kasatka due to the social -- " yes.
15
Q.
What were the social precursors that existed?
16
A.
Because I can't remember, I'll read it.
17
18
It
says:
"Additionally, the social structure had
19
recently changed with the arrival of two juvenile
20
males.
21
the social status of the entire pod of whales
22
before we enter the water with any whale."
We need to have a heightened awareness of
23
JUDGE WELSCH:
You're reading --
24
THE WITNESS:
I'm just reading what it says
25
here, Your Honor.
CARLIN ASSOCIATES
(216) 226-8157
1026
MR. BLACK:
BY MR. BLACK:
Q.
Page 686, Your Honor.
In the first sentence that began with, "First
and foremost," if you would turn back to the fourth
page, Page 684, in the first paragraph on that page.
A.
Yes.
Q.
About five lines up from the bottom, it says:
8
9
10
"During the volunteer segment Takara left

her control trainer, Lisa Hugally, and
swam into C Pool as the gate was closing."
11
A.
Yes.
12
Q.
And then it says:
13
14
"Kasatka was calm and continued to perform

the volunteer segment as normal"?
15
A.
Yes.
16
Q.
So, turning back to Page 686, is that part of
17
what the "first and foremost, we should not have entered
18
the water with Kasatka due to the social precursors that
19
existed," is referring to?
20
21
22
23
A.
I'm assuming that's what it's referring to,
but there's more to it than that.

Q.
Well, when you say, "there's more to it," are
you talking about the "additionally"?
24
A.
No.
25
Q.
What more to the social precursors are there?
CARLIN ASSOCIATES
(216) 226-8157
1027
A.
Let me just make sure I read this correctly.
Q.
I would like to draw your attention to Page 5
in the first paragraph.
A.
Yes, sir.
Q.
It says, "Takara left her control trainer to
interact with other whales."
A.
Yes.
Q.
"And that presented a new scenario we had
never attempted water work with before," right?
10
A.
Yes.
11
Q.
So, that was the social precursor or one of
12
the social precursors that existed?
13
A.
Yes.
14
Q.
Is that what it's talking about when it says
15
or part of what it's talking about when it's saying that
16
the trainer should not have entered the water due to
17
that social precursor?
18
A.
Yes.
19
Q.
And, the new scenario at the time of the
20
incident while it was going on, is it fair to say that
21
you and your supervisor disagreed that this was a new
22
scenario?
23
A.
Did we disagree that us getting in the water
24
with Takara being with the other juvenile whales was a
25
different scenario?
CARLIN ASSOCIATES
(216) 226-8157
1028
Q.
Yes, a new scenario?
A.
We never disagreed on anything before I got
in the water?
Q.
So, is it fair to say that you and Robin,
when you were looking at the social precursors, you
thought that this was not so different from stuff that
had happened previously, that it was unsafe to get in
the water?
9
10
11
A.
We felt with Kasatka's behavior at the time,
that she seemed fine for us to get in the water.

Q.
And, it's apparently, is it fair to say, only
12
in hindsight in this report that that was adjudged an
13
error or something that you all should not have
14
concluded or done?
15
A.
Well, sometimes you can't see what's going on
16
in the back pool.
17
what's going on in the environment, but underwater, if
18
the whales are vocalizing underwater through a gate or
19
whatnot, I mean, you can't see all that.
20
So, we look in the pack pool to see
You can't be 100 percent sure, but
21
99.9 percent when Rob and I were on stage and what we
22
saw in the environment and how Kasatka was behaving and
23
acting, we felt it was safe.
24
25
Q.
But, you were aware at the time, were you
not, that Takara had left the control trainer?
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A.
Yes.
MS. GUNNIN:
Judge, I think we can analyze
this incident for the rest of the day.
ask what is the Secretary's point of looking at an
incident from 1999 that occurred in San Diego with a
whale that was not housed in Orlando, and I think that
if you allow the Secretary to continue on this path, we
will not finish today with the Secretary's case, and we
may not finish in this week.
10
JUDGE WELSCH:
However, I would
Mr. Black, I am having a problem.
11
This is a 1999 incident, as Ms. Gunnin points out, in
12
San Diego.
13
it, it appears from this incident, I assume
14
corporatewide -- I don't know if it's corporatewide or
15
San Diego, but the institution certainly changed its
16
policy.
17
18
And, the way I'm looking at it or reviewing
So, it says under that same paragraph:

"Therefore, we will no longer enter water
19
with any of our whales when upsetting social
20
behavior is present."
21
So, based on the 1999 incident, they made a
22
corrective change.
I don't know if that change is still
23
in place today or was in place at the time of the
24
incident in Orlando, and I don't know if the incident in
25
Orlando had anything to do with the social behavior of
CARLIN ASSOCIATES
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1
2
3
4
other whales or not.

But, anyway, I guess I'm agreeing with Ms. Gunnin.
I think you need to start moving on a little bit.
MR. BLACK:
Your Honor, we have represented we
would be done today, and we're doing the best we can
given that we were not permitted to depose these
witnesses and were not being permitted to ask leading
questions to expedite it, and we're continually being
interrupted and trying to explain the relevance of this
10
11
just because Respondent perhaps isn't following.

JUDGE WELSCH:
I understand your relevance
12
argument, I understand what a Section (5)(a)(1)
13
encompasses, and I understand the industry practice.
14
But, right now, it seems like we're spending too much
15
time just on this one aspect, and the problem I am also
16
having is, yes, he was the trainer that was involved in
17
the incident, but I don't think he necessarily wrote
18
this section that you're reading now, and he has given
19
his interpretation because unless I'm wrong, he's not
20
the person that actually wrote the corrective action
21
language.
22
So, for you to ask him what it meant, he was not
23
the author of it.
He may have read it in the past and
24
has some expertise, but he is not necessarily the
25
author, unless I'm wrong, of the language.
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Do you
1031
1
2
understand?
MR. BLACK:
We're trying to ask some direct
questions, but it's challenging -- you know, the
questions or not -- I'm trying to find out what the
incident was, what happened, what they knew and what
they did.
the ability to ask the leading questions to get some
rather straightforward responses.
9
10
But, I'm being hampered by not being allowed
JUDGE WELSCH:
In fairness, I agree that as far
as I know, you have not been able to take a deposition.
11
MR. BLACK:
Or even be able to talk to him.
12
JUDGE WELSCH:
But, Mr. Peters was on your list
13
of witnesses.
14
case as to why Mr. Peters was on your list of witnesses.
15
So, let's speak to those points as to why you think he's
16
important to your case.
17
You have some basis that related to this
You didn't put down a name, I assume, as a list of
18
witnesses.
You have in mind that Mr. Peters has some
19
information that you think is going to help the
20
Secretary's case.
21
on your list.
Otherwise, you would not have put him
22
MR. BLACK:
23
JUDGE WELSCH:

So, it's not like you're dealing
24
with somebody you have never dealt with.
25
background somehow pertinent to your case.
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You have some
1032
1
2
3
4
5
MR. BLACK:
We do and the background is largely
on paper, so we are tying to examine through the paper.

JUDGE WELSCH:
The paper is already in evidence.
The paper says what it says.

MR. BLACK:
True, but I don't think the Court
is going to go through 600 pages and read line by line
to see if it might find some highlights or whatever.
8
9
JUDGE WELSCH:
relevance.
I expect you to show me the
Let's go ahead.
10
MR. BLACK:
11
BY MR. BLACK:
12
Q.
Thank you, Judge.
So, now, is it a fair statement that any
13
interaction with a killer whale has the potential to
14
present a new scenario or something that hasn't been
15
seen by a trainer before?
16
A.
Say that one more time.
17
Q.
Certainly.
Is it a fair statement that any
18
interaction that a trainer has with a killer whale has
19
the potential to present a new scenario that the trainer
20
hasn't seen before?
21
A.
Yes.
22
Q.
And, is it fair, then, that the trainer has
23
to make a judgement?
Is it a fair statement to say that
24
the trainer has to make a judgement there on the spot as
25
to how to deal with a new scenario?
CARLIN ASSOCIATES
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A.
Yes, sir.
Q.
So, it was the judgement after the incident
of the originating park curator that the two trainers,
you and Mr. Sheets, made an error by deciding to enter
the water, right?
A.
Yes.
Q.
And, there's also on Page 685 what was
adjudged by the park curator as a second error in the
second paragraph there.
10
A.
The second paragraph?
11
Q.
Yes, when the unusual behavior of Kasatka
12
abruptly leaving her control, the trainer admitted the
13
emergency call-back procedures should have been
14
implemented, right?
15
A.
Yes.
16
Q.
So, that's saying that there is an error
17
there?
18
A.
Yes.
19
Q.
Is that right?
20
A.
Yes.
21
Q.
Now, you mentioned something about whales
22
vocalizing under water, right?
23
A.
Yes.
24
Q.
That wasn't something that was involved in
25
this 1999 incident, was it?
CARLIN ASSOCIATES
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A.
The 1999 incident, no, there were no
vocalizations.
observed --
There were no precursors that we
Q.
And so --
A.
-- from Kasatka.
Q.
For Kasatka?
A.
From Kasatka.
8
9
10
11
12
13
14
There were no precursors from
Kasatka that we observed before I got in the water.

Q.
Are you saying that there was a precursor in
Takara splitting or -A.
I'm saying that there were no precursors from
Kasatka before I got in the water.

Q.
Were there precursors from other whales
before you got in the water?
15
A.
Prior to leaving, yes.
16
Q.
So, was that a social precursor that you
17
missed at the time of the incident; that is, that you
18
didn't see?
19
A.
We didn't miss it.
20
Q.
So, is it then that it was an error in
21
We knew she left.
judgement in evaluating that precursor?
22
A.
Yes.
23
Q.
And, on Page 6 where it's listing the
24
corrective steps, we talked about the first paragraph.
25
In the second paragraph, it says that the emergency
CARLIN ASSOCIATES
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call-back procedure was not followed; therefore, will
implement a 100 percent implementation policy.
see that?
A.
Yes.
Q.
And, so what is the purpose of having
6
7
8
9
10
11
emergency call-backs in every session with the whale?

A.
To give the whale an opportunity to be
reinforced.
Q.
In lay person terms, what is the purpose of
giving the whale an opportunity to be reinforced?

A.
To get rewarded, to not rehearse aggression,
12
to have to place to go to.
13
opportunity to -- repeat the question, please.
14
15
Do you
Q.
Sure.
It also gives the trainer an
The purpose of having the emergency
call-back in every session --
16
A.
Yes.
17
Q.
You first said that it has something to do
18
with success and being able to reward the whale for
19
success, right?
20
A.
Yes.
21
Q.
And, does it have a purpose to make it more
22
likely that in the future, the whale will respond to the
23
emergency call-back procedure?
24
A.
Yes.
25
Q.
Is that the primary purpose?
CARLIN ASSOCIATES
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A.
The primary purpose of the emergency call-
back is to give the whales another place to go to, other
than doing whatever undesired behavior they're doing
whether it's aggressive or nonaggressive.
Q.
But, in practicing it or doing it every
session is the purpose so they would have a
reinforcement history so in the future, that's what they
will do when the call-back procedure is implemented?
A.
Yes.
10
Q.
And, then, thirdly, on Page 686, it says,
11
"The show did not need to be cut short."
12
that?
Do you see
13
A.
Yes.
14
Q.
Can you tell me how serious an incident has
15
to be before it merits cutting a show short?
16
A.
No, I can't tell you.
17
Q.
Is there any standard or procedure that Sea
18
19
20
21
22
23
World has?
A.
At that time, to be perfectly honest, I can't
answer your question.

Q.
I don't know.
How about at some later time than that?
Was
a standard instituted for when you cut the show short?

A.
I don't know if there's a standard.
It's
24
just every situation dictates some different response.
25
I mean, you know, I don't know what the finished
CARLIN ASSOCIATES
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guidelines are for now because they haven't been
completed.
Q.
I'm talking, I guess, all the way up until
Ms. Brancheau's death, what the guidelines were or the
rules were for cutting a show short based on incidents?
6
7
A.
show.
8
9
I don't think we had rules for cutting a
JUDGE WELSCH:
morning break.
Mr. Black, let's take our
We stand adjourned for ten minutes.
Be
10
back at ten minutes until the hour.
We stand adjourned.
11
I will instruct you not to discuss your testimony with
12
other persons who may be called later as witnesses in
13
the case.
14
15
16
JUDGE WELSCH:
17
Mr. Peters, I'll remind you you're still under
18
oath.
19
THE WITNESS:
Yes, sir.
20
JUDGE WELSCH:
21
MR. BLACK:
22
BY MR. BLACK:
23
Q.
Thank you, Judge.
Mr. Peters, I think maybe before the break,
24
we were turning to the last page of this incident
25
report, Page 689.
I'm sorry, can you turn to Page 690?
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I realize it's the same thing with an addition and a
different font.
Now, on this last page, Page 690, you see
there are comments from the curators of the other Sea
World Parks?
A.
Yes.
Q.
So, does that mean the other parks reviewed
this incident report?
A.
Yes.
10
Q.
And, if I understand you correctly, the parks
11
shared this incident report and this information with
12
one another?
13
A.
Yes.
14
Q.
You said something about developing new
15
uniform guidelines between the parks --
16
A.
Yes.
17
Q.
-- that are currently under development.
18
Do the incident reports play a role in
19
getting the parks to act uniformly in how they dealt
20
with killer whales and precursors and behavioral
21
situations to help all the parks?
22
A.
Yes.
23
Q.
And, to help them act uniformly, though?
24
A.
Yes.
25
Q.
And, here, there is a paragraph with Sea
CARLIN ASSOCIATES
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1039
World of Florida.
Do you see that paragraph?
A.
Yes.
Q.
And, am I reading it right, it seems that the
curator is agreeing with the assessment of Sea World of
California?
6
7
MS. GUNNIN:
Judge, I'm going to object to him
asking about curators at other parks.
JUDGE WELSCH:
It says what it says.
MS. GUNNIN:
Exactly.
10
BY MR. BLACK:
11
Q.
Is that what it says?
12
A.
Yes.
13
Q.
It says that the curators agree, right?
14
A.
Yes.
15
Q.
And, now, in the Sea World of Florida
16
paragraph there, it notes that this was an unfortunate
17
incident, right?
18
19
20
21
22
23
MS. GUNNIN:
Judge, again, I object.
He's
asking about what the Sea World of Florida does.

MR. BLACK:
No, no, I asked the report notes
that it was an unfortunate incident, correct?

JUDGE WELSCH:
Overruled.
Go ahead, you can
answer.
24
THE WITNESS:
25
BY MR. BLACK:
CARLIN ASSOCIATES
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1040
Q.
learning tool?
A.
Yes.
Q.
And, now, this incident report was from 1999,
And, it also says that it was an excellent
the one that we're looking at?
A.
Yes.
Q.
And, seven years later, did you have another
incident with this same killer whale?
A.
Yes.
10
Q.
Was that a serious incident, that later
11
incident that happened?
12
A.
Yes.
13
Q.
The incident where your life was held in the
14
balance; is that a fair statement?
15
16
17
18
A.
I never felt like I was going to lose my
Q.
Now, we've played the video of that incident
life.
in Court here previously.
19
A.
20
JUDGE WELSCH:
21
record?
Yes.
Which video is that for the
Is it Exhibit C-9?
22
MR. BLACK:
23
BY MR. BLACK:
24
Q.
25
Have you seen that video?
C-9, Your Honor.
And the trainer in the video in the water
with the whale, that was you?
CARLIN ASSOCIATES
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A.
Yes.
Q.
And the killer whale was Kasatka?
A.
Yes.
Q.
And, in the 2006 incident, Kasatka, rather
than trying to grab your feet, didn't she actually grab
your feet?
A.
Yes.
Q.
And, is it true, would you have been able to
9
10
remove your foot from Kasatka's mouth if Kasatka didn't

want you to?
11
A.
No.
12
Q.
And, Kasatka during this incident during the
13
video, is it true that she actually laid you on the
14
bottom of the pool?
15
16
17
18
19
A.
She laid on top of me, but looking at the
video, she was moving.

Q.
She wasn't in one place.
And, even though you didn't feel that you
were going to die, she did almost kill you, right?

A.
I don't know if you can say she was going to
20
almost kill me.
21
once her adrenaline came down, she would be okay.
22
Q.
I still had breath, and I felt like
If she had decided before her adrenaline came
23
down to hold you under water, there would be nothing
24
that you could have done to prevent that?
25
A.
Right.
CARLIN ASSOCIATES
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1
2
Q.
So, she could have killed you if her
adrenaline didn't come down, right?
A.
If she held me under water, yes.
Q.
Now, after that incident, Sea World made
5
6
Kasatka a nonwater-work whale?

A.
Yes.
Well, we were told to stay out of the
water with her until they came up with guidelines,
whatever it was going to be.
swim with her again.
10
11
12
13
14
Q.
Who told you that?
I don't know, we didn't
Who was doing the
telling, if you will?

A.
Mike Scarpuzzi said, "We're out of the water
with Kasatka until further notice."

Q.
And, when you say you're out the water with a
15
whale, is it sometimes referred to as that's a dry work
16
whale, at least for that time period that you're out of
17
the water?
18
A.
Yes.
19
Q.
Now, as a dry work whale -- I guess Kasatka
20
was a dry work whale from after the incident in 2006 up
21
until the time of Ms. Brancheau's death, right?
22
23
A.
After the 2006, yes, she was dry.
getting confused between
--
24
Q.
Sure, sure.
25
A.
After 2006, she was dry, yes.
CARLIN ASSOCIATES
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So, I'm
1043
Q.
Even up to and including today?
A.
Yes.
Q.
Now, as a dry work whale, Sea World has been
able to take care of her?
A.
Yes.
Q.
And, has Sea World been able to perform all
the necessary husbandry care that's necessary to take
care of her?
A.
Yes.
10
Q.
And, tell me how that works differently with
11
her as a dry work whale than it works with a whale with
12
which Sea World was still doing water work?
13
A.
In regards to just in general?
14
Q.
Yes, sir.
15
A.
You can do everything as far as reinforcement
16
history and relationship except you can't get in the
17
water.
18
Q.
How does being dry affect the husbandry care
19
that Sea World of California provides to its killer
20
whale, specifically Kasatka?
21
22
23
A.
It doesn't affect the husbandry care of our
whales being out of the water.

Q.
Now, why did Sea World decide to stay out of
24
the water until further notice with Kasatka after the
25
2006 incident?
What was it about that incident that
CARLIN ASSOCIATES
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1044
caused the decision to go dry?
A.
With the intensity of it.
Most of her
incidents usually have something to do with her calf,
something going on with the calf; and, you know, I don't
know the real reasons.
decisionmaker on that.
Q.
I mean, I wasn't the
Did the park discuss the reasons for the
decision to go dry with her?
with the trainers?
10
11
A.
Did management discuss it
Like I said, because of the intensity of that
incident, that's probably why.
I mean --
12
Q.
Tell me what you think.
13
A.
I don't think you want to have -- every
14
killer whale is different, every situation is different,
15
and with Kasatka, that was probably enough to say with
16
her, "We're not going to get in the water with her
17
anymore," because of her incident being as intense as it
18
was.
19
like that.
20
situation is different.
21
But, that doesn't mean that the other whales are
Q.
The other whales are different; every
But, the decision to go dry, that's something
22
made after the incident occurs; that is, after this,
23
what did you say, incident with great intensity
24
occurred.
25
right?
That's when the decision to go dry was made,
CARLIN ASSOCIATES
(216) 226-8157
1045
A.
With Kasatka, yes.
Q.
So, the decision to go dry with the whales is
not something that Sea World considers until the whale
has shown that it's capable of doing something that's
intensely aggressive.
A.
Not necessarily.
There are other times we
may go dry if whales show different precursors for
whatever reasons so we can evaluate.
It's not always
after an intense incident like that.
We do take time
10
out of the water when other questionable things happen
11
with the whales, whether it be social or a precursor,
12
like I said earlier, where they pass their pecs, we may
13
go dry with them for awhile just to reevaluate and
14
reassess.
15
Q.
So, while you're doing that reassessment, the
16
safest thing to do, is it fair to say, while you're
17
doing that reassessment is to be dry with the whale
18
until the reassessment is done?
19
A.
20
going on, yes.
21
Q.
22
23
Until we can figure out, you know, what's
Figure out whether or not there's a way to
safely get in the water with that whale?

A.
There is not a way to be better in the way we
24
apply our techniques to be evaluate and avoid similar
25
situations which could be deemed aggressive or such.
CARLIN ASSOCIATES
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Q.
And, being better with your techniques, one
of the ways that you try to be better with the
techniques is maybe better to recognize precursors; is
A.
Definitely.
Q.
Or better at predicting how whales are going
to behave in certain circumstances, right?
A.
Yes.
Q.
So, you want to increase the predictability
10
of those whales before you get back in the water with
11
them again?
12
A.
Say that again?
13
Q.
Sea World ought to increase the
14
predictability, their ability to predict the animal's
15
behavior before Sea World trainers get back in the
16
water?
17
A.
To the best of our ability.
18
Q.
And, Sea World has not always been able to
19
predict whales and avoid incidents based on what they
20
expected?
21
A.
99.9 percent of the time, we're able to.
22
Q.
And .1 percent of the time when you're not,
23
24
25
it could lead to something?

A.
It's probably a bigger percentage than that.
It's a bigger percentage of things that we do where
CARLIN ASSOCIATES
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1047
we're able to predict things than it is that we don't.
Q.
Understood.
A.
That's just a random number.
Q.
But, when you don't, that could lead to a
serious injury such as you sustained in 2006?
A.
I could get killed in a car accident today,
or get in a car accident, but I can still drive my car
the next day.
Q.
I understand but now we're talking about your
10
work with killer whales and what risks you're exposed to
11
in working with a killer whale.
12
level, you say it's small, of risk in which you could be
13
seriously hurt or killed getting into the water with a
14
killer whale, right?
There's a certain
15
A.
There's a very small risk, yes.
16
Q.
A risk that you personally deem to be
17
acceptable?
18
A.
Yes.
19
Q.
And, it's a risk that, in fact, you
20
acknowledge when you sign your training documents, the
21
SOP you sign, that there's a calculated risk, right?
22
23
A.
There's a calculated risk to dying tomorrow,
yes.
24
MR. BLACK:
25
JUDGE WELSCH:
Thank you.
Ms. Gunnin?
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1048
MS. GUNNIN:
Yes, Your Honor.
---o0o---
CROSS-EXAMINATION
BY MS. GUNNIN:
Q.
Mr. Peters, prior to 2010, do you know
whether or not the park communicated with you regularly
about their SOP's or the Shamu Stadium manual?
A.
That's above me, so I'm assuming they do.
Q.
Have you ever worked at the Orlando Park?
10
A.
Yes.
11
Q.
Have you ever reviewed the Orlando Park SOP's
12
or their Shamu Stadium manual?
13
A.
No.
14
Q.
I believe you testified just a few minutes
15
ago that all killer whales are different.
16
just explain to the Judge what do you mean by all killer
17
whales are different?
18
A.
If you could,
They all have different personalities,
19
different behavioral things that they do.
20
they have different facial expressions, body gestures,
21
they learn at different paces.
22
you would develop with them is different between each
23
animal.
24
how you reinforce them and how much time you spend with
25
them is how your relationship will continue to grow.
The relationship that
Some animals seem to interact.
CARLIN ASSOCIATES
We come in,
Depending on
(216) 226-8157
1049
I can say with some certainty that at every
park, the trainers spend a lot of time building a
relationship with whales because you have to.
only way that we're able to do what we do.
have a relationship with the animals, we wouldn't be
able to get in the water or even get close to them.
It's the
If we didn't
It's like if you have a dog, the only way you
can be close to your dog is build a relationship with
him.
If you just feed them all the time, that may work
10
at first.
11
boring, and they need something else.
12
love to come up, lean on you, rub on you.
13
After awhile, the food is going to get

That's why they
The same thing with the whales.
You can't
14
feed them to make them do things all the time.
15
that, you need to spend some time with them.
16
actually did an experiment one time where we had two of
17
our younger animals and we were like, "I wonder how long
18
we can stay down with the animal."
19
20
MR. BLACK:
narrative.
After
We
Objection, Your Honor, to the
I think the question has been answered.
21
JUDGE WELSCH:
Let him finish.
22
THE WITNESS:
Their names were Splash and
23
Takara.
And, we put them at Shamu close up in our
24
dining pool or back pool, and I was like, "I wonder how
25
we can stay down with the whales," and the trainers
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would switch back and forth.
nine hours.
We did it all day, it was
And, that was pretty impressive.
I can't venture to say that just feeding them is
going to keep them close to you.
sort of relationship with you to be able to do that.
was amazing.
BY MS. GUNNIN:
Q.
They need to have some
And, Mr. Peters, the killer whales at San
Diego, having worked with them and having had a lot of
10
experience with those killer whales, would that allow
11
you to go to one of the other parks and start working
12
with their killer whales?
13
A.
You could go to the other parks, but you
14
would have to take some time to build a relationship
15
with those animals.
16
It
Q.
So, it would be the same relationship-
17
building wherever you would go.
18
years or however much experience you have, you wouldn't
19
just go to another park and start working with killer
20
whales on the first day?
21
22
MR. BLACK:
Because you have 20
Objection, leading.
There are so
many facts stated.
23
JUDGE WELSCH:
Overruled.
24
MR. BLACK:
Your Honor, are we allowing Sea
25
World to ask leading questions?
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JUDGE WELSCH:
MR. BLACK:
It's Cross-Examination.
Rule 611, Your Honor, talks about
alignment of interests, and it seems improper to allow
leading in circumstances where you have a witness
aligned with a party, and if you allow us not to ask
Cross of that person but allow just because we called
the witness to treat it as Cross, that seems to not
fully comply with what the rule contemplates.
MS. GUNNIN:
Judge, Mr. Peters was never deemed
10
an adverse witness in this case.
11
Secretary, and merely the fact that they called and they
12
get to Cross --
13
14
15
16
JUDGE WELSCH:
on.
He was called by the
Objection overruled.
Let's move
Go ahead.
MS. GUNNIN:
I probably have forgotten the
question by now.
17
BY MS. GUNNIN:
18
Q.
I was asking you if a trainer, such as
19
yourself who has lots of experience, goes to another
20
park, can you go and work with those killer whales from
21
day one?
22
A.
No, it takes time.
23
Q.
Why is that?
24
A.
It takes time to build relationships with
25
their animals.
It would be like going to your house
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trying to work with your dog.
need time, and time is just dependent on each killer
whale and the situations that you're put in.
4
5
Q.
He doesn't know me.
How does building that relationship work with
regard to predicting the behavior of the killer whales?
A.
I'm sorry?
Q.
How does building the relationship work with
the predictability of the behavior of a killer whale?
A.
It allows us to better predict what's going
10
on.
For instance, if I get six months with a new whale,
11
over time -- at first, I'm not going to know anything
12
about that particular animal, but as I get to know their
13
tendencies and their behavior and I see how they work in
14
shows and learning sessions, diet interactions, play
15
times, relationship sessions, as time goes on, I'm
16
better able to know them, and I'm able to see how they
17
act, and as I said, their body gestures, their facial
18
expressions, and then just swimming by the pool and
19
watching us walk around.
20
That's also something.
It isn't just about the food.
We can walk
21
around the pools and the whales will watch us.
They
22
don't need to be fed, they just want to interact with
23
us.
24
Q.
What all do you do to build a relationship?
25
A.
You find out the things they like.
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I mean,
1053
it's pretty simple.
EED's, environmental enrichment devices.
them kelp and Jello, different types of toys that they
seem to enjoy.
We have a variety of what we call

You can give
We'll step down, rub them down for a variety
of times, give them ice cubes, but the most important
part is just the tactile reinforcement, just rubbing
them down for extended periods of time.
Kasatka, I spend numerous times with her and
10
just rubbing her tail flukes down for -- I'll stay down
11
with her for an hour, just rubbing her tail flukes, and
12
I can't -- no one knows what anybody is thinking, but
13
from her behavior, she seems to enjoy those long
14
interactions.
15
Q.
16
So, with Kasatka, you still have close
contact with Kasatka?
17
A.
Yes.
18
Q.
So, although you don't swim with her, that
19
wouldn't indicate that you're not close with her,
20
correct?
21
A.
No, no, she's a good whale.
22
Q.
And, you mentioned in your testimony that you
23
believed that you were going to be okay from the 2006
24
incident.
25
A.
Why did you believe that?

Her past incidents.
CARLIN ASSOCIATES
She's never taken it to
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that level, and I felt like if I just remained calm,
once she got past her initial, whatever she was upset
about -- I seriously believe that it was just her calf.
I heard her calf underwater when I went down.
was going on back there, and Kasatka is a very
protective mom, and even in the 1999 incident, it was
her calf; it's pretty similar.
8
9
Something
But, I just really felt in my mind that she

wasn't going to take me to that spot.
She's never gone
10
that far.
11
thought, "She will still let me go."
12
relationship that I have formed with her from 1993 to
13
2006, I had 13 years with this animal, and the time that
14
was spent as far as keeping our bond going, I just
15
didn't think I was going to go to that other place.
16
Q.
17
correct?
18
A.
Even when I was on the bottom of the pool, I

Because of the
And, she did let you go ultimately in 2006,
She did.
It was like I was telling the other
19
gentleman, if they want to do it, they will.
20
nothing we could do.
21
the relationship I had with her and she was done.
22
Q.
There's
So, I really believe this was just
And, after the incident report, are you aware
23
of whether or not changes get made to the protocols, the
24
SOP's, the Shamu Stadium manual, training protocols,
25
safety protocols?
Does that happen after an incident
CARLIN ASSOCIATES
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1
2
occurs?
A.
I don't make the changes.
I mean, just
through the discussions between the park curators and
corporate, I'm sure they --
5
6
7
8
Q.
Are you aware of any changes that occurred
after the 2006 incident with you and Kasatka?

A.
Oh, yes, we made a lot of changes in our
facility.
Q.
What kinds of changes were made?
10
A.
It's a lot.
We put audio phones all around
11
the area, we have a different number of trainers who are
12
supposed to be in for any type of interaction.
13
protocol was a little bit different, communication
14
between other departments changed.
15
for me to think of all of them.
16
Q.
Our net
I mean, it's hard
Can you explain to the Judge, what did that
17
do in terms of the safety of a trainer while interacting
18
with a killer whale?
19
A.
How did that enhance safety?
Well, I mean, since Dawn's incident,
20
obviously, we haven't been in the water because they're
21
still deciding on the guidelines and what we're supposed
22
to follow, but as far as how that particular --
23
24
25
Q.
Specifically to the ones you just mentioned
after 2006?
A.
I know that one of the changes is also
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lifting the floor that they're working on.
communication really is what is more valuable than
anything.
to tell each other what's going on, but now with our
emergency system, it allows us to communicate more
effectively, clearly and quickly, and it gets people to
stay in the floor.
8
9
Q.
The
Before, we were yelling across pools trying
And, part of that communication, was there a
purpose so that you would know what's going on in the
10
other pools, or what's the purpose of the communications
11
being enhanced?
12
A.
Well, we also got new cameras which then
13
allows us to know what's going on in other pools under
14
water.
15
Q.
How are the cameras used?
16
A.
They're behind stage, they're also put on the
17
18
19
20
gates to make sure that our gates are locked.

Q.
Is there someone that monitors the cameras
and what's going on in the other pools?

A.
All the trainers do.
Before any type of --
21
anytime that we take the whales out for any type of
22
interaction, we're always looking at the cameras, and we
23
visually go over and look at them, but the cameras give
24
us a better visual acuity of the area.
25
Q.
What would the purpose of watching those
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1
2
3
cameras and looking at the killer whales?

A.
You can monitor behavior under water which is
valuable.
Q.
How is that a valuable piece of information?
A.
You can see if anything social is going on
6
7
8
9
underwater between animals.

Q.
And, the social interaction, why is that
important for you as a trainer to know that?

A.
Well, killer whales are very social.
They
10
have a dominance hierarchy.
11
know, but females are more dominant, and different
12
whales, depending on what situation and what pools
13
they're in, they will vocalize through gates and bang
14
gates, and we definitely would not want to get in the
15
water or even on land, you would want to watch yourself
16
if the whales are having interactions with one another
17
that are undesired, and by access to cameras, it allows
18
you to watch that.
19
Q.
I don't know how much you
So, that's a change it was put into effect
20
after 2006.
That wasn't in effect in 1999, so you
21
couldn't observe visually the interactions of the killer
22
whales, correct?
23
A.
Correct.
24
Q.
So, had that been in place, do you think that
25
would have perhaps changed your position back in 1994?
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MR. BLACK:
Objection.
JUDGE WELSCH:
Sustained.
BY MS. GUNNIN:
Q.
incident.
incident?
A.
Calls for opinion.
In 1999 you were asked a lot about that

Did social interactions play into that
Looking back at it, in the back where the two
little males were, yes.
I don't think the social was as much as just Kasatka's
10
It's a difficult thing, though.
calf.
11
You know, in those situations, I had Kasatka
12
-- we've had times where we stay with the whales even if
13
other whales go back just like Takara did.
14
nothing unusual.
15
So, it's
That's why Rob and I decided at that time we
16
felt it was okay.
17
calf, it was a little different.
18
that was where our judgement came from.
19
know, she looks calm.
20
other whales go up in this similar situation, so she's
21
probably going to be okay.
22
in the back, we didn't see that.
23
Q.
I think maybe because it was her

But, I think maybe
Like, well, you
We had the same situation where
As far as the little males
When you're saying, "little males in the
24
back," are those the calves of Kasatka or one of the
25
males?
CARLIN ASSOCIATES
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1
2
A.
no, they were not related to Kasatka.
3
4
I don't know if it was Keto and Splash and,
Q.
So, you're talking about the calf?
You
mentioned the calf?
A.
Takara.
Q.
Okay, Takara?
A.
Yes.
Q.
And the calf was with her?
A.
No, Takara was Kasatka's calf.
She's the
10
whale that went up, and when she went up, we didn't
11
think of her as the calf.
12
another whale going up to a back pool like we had in
13
other situations where whenever we had multiple whales,
14
sometimes whales will split and go to the back pool,
15
whether it was Corky or Ulises, or whoever it was,
16
Takara went up and I thought, "Well, she's fine."
17
think maybe our error was it was just her calf in the
18
back.
19
20
Q.
We just looked at her as
Kasatka was concerned about where her calf
was going?
21
A.
Yes.
22
Q.
Was that something that you eventually
23
learned about Kasatka, about her relationship with her
24
calf?
25
A.
Yes.
I mean, in that situation, she spit up.
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I guess maybe the next time if she splits up, we
probably should not get in the water with the calf.
Q.
How do you think that your training has
allowed you to be prepared to handle potential new
situations that might occur with a killer whale?
A.
My personal training?
Q.
Yes.
A.
Well, like I said, the incident reports give
us more knowledge about what we should watch in the
10
environment and watch in the behavior.
11
takes swim tests four times a year.
12
stay in good shape, and I think our experience we have
13
in the area, we have a lot of trainers that have a lot
14
of experience that have seen a lot of things and are
15
more aware of what's going on.
16
Physically, we
On my own time, I
So, I think overall, I just look at kind of
17
the total package.
I think we've made some leaps and
18
bounds in what we're doing now compared to what we did
19
in 2006 and '99.
20
MS. GUNNIN:
21
BY MS. GUNNIN:
22
Q.
Mr. Peters, do you think there's any
23
difference in the relationship that you can establish
24
with a killer whale if you're able to swim with the
25
killer whale versus not being able to swim with a killer
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whale?
2
3
MR. BLACK:
Objection, calls for expert
opinion.
JUDGE WELSCH:
I'm not going to accept it as an
expert, but I'll allow him to give his opinion.
Overruled.
THE WITNESS:
Yes.
BY MS. GUNNIN:
Q.
And, why is that?
10
A.
The variability that comes with water work is
11
invaluable to us.
12
bond.
13
be in shows.
14
it's a play time or a relationship.
15
It just allows us to form a closer
The water work doesn't always necessarily have to

It's just every interaction we do, whether
Another example, we could -- after a show, we
16
could go out there in the middle of the pool with
17
Kasatka and another whale, it wouldn't matter, and just
18
stay out there for a half an hour just playing with
19
them.
20
have.
21
22
23
24
25
It just builds the bonds of relations that we
So, yes, it does hurt us not being in the

water, relationship-wise.
MS. GUNNIN:
Your Honor.
JUDGE WELSCH:
Let me just ask just a couple of
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questions.
2
3
As the assistant curator for a couple of years,

the last two years, two or three years.
4
5
THE WITNESS:
I can't remember those
dates.
6
7
Yes.
JUDGE WELSCH:
Well, anyway, are you still
interacting with the whales yourself?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Are you still involved in the
10
show performances?
11
THE WITNESS:
Yes, sir.
12
JUDGE WELSCH:
Are you still one of the trainers
13
that works in the shows?
14
THE WITNESS:
Yes, sir.
15
JUDGE WELSCH:
The changes that you talked about
16
after 2006, those are changes at the San Diego Sea
17
World.
18
any of those changes were adopted by the Orlando Sea
19
World Park?
20
Do you know whether or not those same changes or
THE WITNESS:
21
park.
22
don't know.
23
24
25
I don't know anything about their
I would assume that it probably happened, but I
JUDGE WELSCH:
You've never visited the Orlando
THE WITNESS:
Once.
park?
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JUDGE WELSCH:
For what purpose?
THE WITNESS:
When they were putting in Believe
back in 2006, we went out there just to -- they had put
the show, and we watched the show.
out there for.
JUDGE WELSCH:
That's what I was
The shows that are done at
Orlando, is it your understanding that they're the same
shows as are done in San Diego?
THE WITNESS:
Similar, yes.
Our parks just
10
depending on like Texas is a little different just
11
because of the shape of their pool.
12
stadiums, similar shows, similar screens.
13
fairly similar in our parks.
14
Texas is a little bit different.
15
JUDGE WELSCH:
We have similar
I mean, we're
So, we're very close.

Same show.
When you say "similar," you're
16
talking about San Diego and Orlando, the configuration
17
of the pools and everything is very similar?
18
THE WITNESS:
The front pool and how the show
19
is set up.
20
the front pools are absolutely the same.
21
The back pools are slightly different, but
JUDGE WELSCH:
But, if I went to a show here in
22
Orlando and then I went to the one in San Diego, it
23
would be very much the same shows?
24
THE WITNESS:
Yes.
25
JUDGE WELSCH:
And, when you talked about the
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cameras, does that also include audio?
audio component to the camera?
Is there an
THE WITNESS:
Do you mean like for underwater?
JUDGE WELSCH:
Yes.
THE WITNESS:
No, it's just visual.
JUDGE WELSCH:
Because I thought part of what
you were saying was that communication between the
whales is very important for you to hear underwater what
the whales --
10
THE WITNESS:
You can watch the behavior.
11
That's what I meant by communication.
12
watching behavior.
It's also
13
JUDGE WELSCH:
But, it's not the verbal sound?
14
THE WITNESS:
No, because you can watch whales
15
underwater if they're bubbling through blow holes, you
16
can see that they're vocalizing.
17
it; you can see it.
18
you to see what's going on.
19
JUDGE WELSCH:
You don't have to hear
That's also another way that helps
But vocalizing doesn't
20
necessarily -- if you detect a bubbling from the blow
21
hole underwater, meaning to you that they're vocalizing,
22
that doesn't mean that -- is that a precursor?
23
THE WITNESS:
No.
It's just situations -- I
24
guess I should clarify.
25
camera and whales are banging on gates, you're going to
If you have an underwater
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look at the underwater camera to see what's going on.
It also allows you to see any type of other
precursors that are going on, and part of that would be
vocalizing, hitting the gate, that's probably telling
you, "Hey you probably shouldn't get in right now."
But, normal vocalization is not a precursor.
JUDGE WELSCH:
8
9
10
11
And, Kasatka, after the 2006
incident, you said they went to dry work; no water work?

THE WITNESS:
Yes.
JUDGE WELSCH:
Meaning being in the pool with
the whale?
12
THE WITNESS:
Yes.
13
JUDGE WELSCH:
During that time after it was all
14
dry work, was Kasatka still involved in the shows?
15
THE WITNESS:
Yes.
16
JUDGE WELSCH:
Still performing?
17
THE WITNESS:
Yes.
18
JUDGE WELSCH:
If I went to one of the shows, is
19
it generally just one whale performing in a show at a
20
time and the rest of the whales would be in the back
21
pool, or is it more than one whale in the pool at the
22
same time?
23
THE WITNESS:
It varies.
You want to be
24
variable with the animals, always changing your
25
environment so they can't predict what's going on.
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That
1066
makes it inherently safe for the whale because you want
the whales to watch you, and like with us, sometimes we
will do shows with six whales, sometimes we do it with
one whale, but every show is different.
changes.
Everything
You always want to keep the environment changing.
We just would not want to have stagnation.
want to keep it fun and exciting for the animals.
JUDGE WELSCH:
10
MR. BLACK:
We always
Mr. Black, any Redirect?

Briefly, please.
11
---o0o---
12
13
BY MR. BLACK:
14
Q.
Mr. Peters, just to clarify a couple of brief
15
things here, now, I thought I heard you on Direct when I
16
asked you about when you first worked with Kasatka.
17
wasn't sure whether it was 1995 or 1994?
18
A.
No, no, no.
20
Q.
No, no, no, not the incident.
21
A.
Oh, okay.
22
Q.
When you first worked with her?
23
A.
Yes, sir.
24
Q.
And, you weren't sure when that was exactly?
25
A.
Not real sure.
19
I said it was 1999 for the first
one.
That was a long time ago.
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Q.
Because did I hear you correctly when Ms.
Gunnin was asking you some questions, you talked about
your relationship with Kasatka from 1993 to 2006, but
you don't know, when you said 1993, it might not have
been 1993.
you first --
It might have been a later time, right, that
A.
Can you say the question again?
Q.
Certainly.
A.
I'm sorry.
10
Q.
The question was, when you first worked with
11
Kasatka?
12
A.
Yes.
13
Q.
Do you remember I asked you that this
14
morning?
15
A.
Yes.
16
Q.
And you weren't quite sure, right?
17
A.
1994-ish.
18
Q.
And, then, Ms. Gunnin just asked you about
19
working with Kasatka from 1993 through 2006, and you
20
started talking about your relationship with Kasatka
21
during that those years?
22
A.
I maybe missed a year.
23
Q.
So, it may be that your relationship didn't
24
25
start until '94 or '95?

A.
No, it wouldn't have been '95.
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It was before
1068
then.
Q.
It may have been 1994?
A.
I started at that stadium in September of
1993.
That's what I do remember is when I started at
that stadium, but I wouldn't have worked Kasatka to
start.
Corky or Takara or one of the less dominating animals in
the area.
dominant animals to start with.
I would have worked one of the other whales like
They're not going to put new trainers on more
10
Q.
And, what does that mean?
11
more dominant?
12
A.
A less dominant,
In killer whale society, the females are
13
dominant over males, they have their social pecking
14
order, and whoever is the most dominant animal runs the
15
roost.
16
17
18
Q.
So, do more dominant whales present more
risks to trainers?
A.
I don't know if I could say more dominant.
19
I mean, it depends on what you're doing and what
20
situation you're in.
21
but her undesirable behavior is usually involving her
22
calf, but if it's not involving her calf, she's usually
23
fine to work with.
24
25
Q.
Kasatka, she's a dominant whale,
But, if I understand you correctly, you
weren't allowed to work with her at first, but you could
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work with Corky at first, right?
A.
I was new.
Q.
What is the difference between Corky and
Kasatka that allowed you to work with one and not the
other?
A.
Kasatka is more dominant than Corky.
Q.
What does that mean from your perspective or
view as a trainer working with the animal?
A.
She's more aggressive.
10
Q.
Now, you gave some testimony about the
11
relationship that the trainers have with the whales?
12
A.
Yes, sir.
13
Q.
And, you said that relationships take time?
14
A.
Yes.
15
Q.
And, did I hear you correctly that
16
17
18
19
relationships allow you to better predict the whales?

A.
In most situations, yes; not all situations.
You can't be perfect, but in most situations, yes.

Q.
And, in fact, it's those situations where you
20
miss something that could, in fact, result in something
21
horrific, right?
22
A.
Humans aren't perfect so --
23
Q.
Now, I heard you say that the relationship is
24
25
not just about food, right?

A.
Correct.
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1
2
Q.
So, you said -- I think I'm quoting you, tell
me if I'm wrong -- that they want to interact with us?
A.
They seem to want to interact with us.
Q.
Seem to want.
5
6
7
8
9
And, you say "seem" because
you don't really know what is motivating the whale?

A.
I can't get into their heads, no.
be like me figuring out what you're thinking right now.

Q.
Well, you might have some pretty good idea,
but it might not be 100 percent accurate?
10
A.
Or what I'm thinking.
11
Q.
Fair enough.
12
That would
So, is it fair to say you can't
mind read the whales?
13
A.
Right, I can't mind read the whales.
14
Q.
So, that's why you said Kasatka seems to
15
enjoy rubbing?
16
A.
17
Yes.
If she didn't like it, she would
probably swim away.
18
Q.
That's what you think, right?
19
A.
I would assume so.
20
Q.
But, it could be that the reinforcement
21
22
properties of food are why she puts up with the rubbing?

A.
Well, how about this?
I can feed the whales
23
after a show, all their food and then rub them down for
24
half an hour.
25
Q.
It can't be the food.
Well, you don't know that the whale is not
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perhaps thinking, "Gosh, I had better participate in
this rubdown so that they keep feeding me at some later
point"?
A.
I'm not a hundred percent sure of anything,
but 99.999 percent I can tell you she would not sit
there.
she's not going to sit there if she didn't seem to enjoy
it.
If she has had all her food and I rub her down,
Q.
I understand but that seams to, but, again,
10
you're drawing conclusions without actually knowing
11
what's going on in that whale's mind?
12
A.
Common sense would tell me she would not want
13
to stay there if she did not want to, if it was not nice
14
for her, if it wasn't pleasant for her.
15
Q.
Well, couldn't common sense suggest, as I
16
suggested, that she stays there because she knows if she
17
does what she thinks you want, it's going to lead to
18
good things later?
19
A.
That's common sense.
I think it's just a difference of opinion.
20
think if you don't have experience with what we do, I
21
can see where you would draw those conclusions, but if
22
you do what I do with animals every day, there are
23
things that you can say with 99.9 percent certainty that
24
are true.
25
So, I would stand on saying, yes, it's not
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the food.
throughout the whole day, and at the end of the day
still play with them, and if they don't want to play,
they will just swim off.
Q.
I can feed the whales all their food
At Sea World, you haven't done a scientific
study to try and determine what's going on in this
whale's mind where it states?
A.
I'm not a mind reader.
MS. GUNNIN:
10
questioning about what's going on in the killer whale's
11
mind.
12
13
JUDGE WELSCH:
Sustained.
the issue before me.
14
BY MR. BLACK:
15
Q.
16
relationship.
17
predictability and safety?
18
19
20
A.
And, you talked about the importance of a

You said that's important for
To better predict what's going on.
You're
not ever 100 percent.

Q.
Now, Sea World hasn't given you any tools by
21
which you can objectively measure the strength of that
22
relationship, have they?
23
24
25
A.
Objectively not subjectively.
I mean experienced trainers, I mean -- say
the question again, please.

Q.
Certainly.
Sea World hasn't provided to you
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any way to objectively measure the strength of that
relationship that the trainer or that you have with the
whale?
A.
Objectively, no.
Q.
And, they haven't given you a way to
objectively measure whether the strength of that
relationship will sustain you in a bad situation,
whether it will protect you in a bad situation?
A.
The way you're presenting the question, no.
10
Q.
Well, did you understand that Dawn Brancheau
11
had a relationship with Tilikum before she was killed?
12
A.
I don't know anything about Dawn or Tilikum.
13
MS. GUNNIN:
I'm going to object to him asking
14
questions about Ms. Brancheau and the whale Tilikum.
15
There's been no foundation laid.
16
17
JUDGE WELSCH:
didn't know.
He just answered.
He said he
Let's move on.
18
BY MR. BLACK:
19
Q.
And, do you know whether the relationship
20
that Alexis Martinez had with Keto protected him against
21
aggressive actions?
22
A.
I didn't work in that facility.
23
idea what they're doing.
24
don't know about.
25
Q.
I have no
I can't comment on things I
And, in their evaluations of those incidents,
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did Sea World present to you and the other trainers any
results of any studies or analyses they did on the
strength of those relationships?
A.
We had an incident report from there, but
there was nothing on relationships.
know.
correctly.
I mean, I don't
I don't know if I understand the question
Q.
Well, the --
A.
The incident reports, all they do is describe
10
what happens in the area that it happens.
11
behavior.
12
whale's minds on what they're thinking with each other.
13
Q.
We just go on
We don't try and get into the trainer's or
And, that's because it's an exercise that
14
involved a certain amount of guesswork to get into the
15
whale's mind?
16
A.
It's like anything.
Q.
So, relying on the strength of this
17
18
I can't get into your
mind.
19
relationship to protect you is based on a subjective
20
evaluation rather than any sort of objective data that
21
Sea World has developed?
22
23
24
25
A.
That's correct, years and years of
experience.
Q.
But, there is no objective data.
subjective?
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It's just
1075
A.
There's no objective data.
Q.
Now, you said you learned about Kasatka and
her calves.
If her calves were doing something that
that could change her behavior?
A.
Yes.
Q.
And, you learned that from incidents that
Kasatka had, right?
type of behavior from at least a couple of incidents
that occurred?
10
11
12
A.
That is, you learned about that
I learned in 1999 that if her calf leaves the
pool, yes.
Q.
And, in 2006, she grabbed you immediately
13
after you heard an underwater vocalization from her
14
calf, right?
15
A.
Yes.
There was a difference.
16
Q.
But, would you agree with me that while
17
there's a difference in both of those instances, it was
18
that some behavior by the calf was relevant to how
19
Kasatka was behaving?
20
A.
In 1999, it was the calf going up to a pool,
21
and in 2006 a calf was already in a pool.
22
difference.
23
Q.
So, there's a
I understand there's a difference, but in
24
both instances, it was the calf's behavior that
25
influenced Kasatka's behavior?
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A.
Yes.
Q.
In Sea World's judgement?
A.
Yes.
Q.
And, so part of what happened is that you
learned from these incidents about how to interact with
Kasatka in the future?
A.
I learned in '99 that if a calf leaves the
main pool from her, that's not a good situation to get
back in with her even if you think it's okay.
In 2006,
10
I know a calf being in a separate pool vocalizing is
11
still probably not all the way the best situation.
12
Maybe just the calf in the pool with her would be the
13
best situation.
14
15
Q.
So, the learning occurred from incidents that
occurred, right?
16
A.
A different incident, yes.
17
Q.
And, the incidents involved either errors
18
made by trainers or things that the trainers missed or
19
didn't see beforehand?
20
A.
Well, the 2006 one was a little harder.
21
the 1999, the calf split up.
22
this.
23
calm before any of what happened.
24
learned.
25
Q.
In
That's easier to see than
In 2006, the calf was already in the back pool

So, I mean, yes, we
It's a different situation.

And, by not having known that beforehand,
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that's what led to the 2006 incident, right?
A.
specifically.
water vocalizing.
Q.
I don't know exactly what led to 2006

All I remember is hearing her calf under
But, the incident report -- we can look at it
if you want -- says that that was the precursor, and
something that was learned from the incident, right?
A.
Yes.
Q.
So, now, you have this 2006 incident, and you
10
install cameras and hang the net, number of nets or
11
configuration of nets, right?
12
A.
Yes.
13
Q.
And, put in some type of communication
14
system?
15
A.
Ear phones, video monitors.
16
Q.
And, so the purpose of these was to see what
17
was going on in the back pool?
18
A.
In all pools.
19
Q.
I'm sorry, in all pools, right?
20
A.
And see gates to better assess the
21
environment.
22
Q.
Before interacting with a whale?
23
A.
Yes.
24
Q.
Before perhaps getting in the water with a
25
whale?
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A.
Perhaps.
Q.
But, in any event, just interactions
generally, you want to know what's going on?
A.
Yes, for right now.
I mean, even on land you
also want to know what's going on.
prudent.
Q.
I mean, it's just
And, so those video cameras -- in fact, there
was an incident in which those video cameras were used
to evaluate some back pool behavior with Kasatka in
10
2008, right?
11
A.
In 2008?
12
Q.
Do you know a trainer named Stephanie
13
Help me.
Glazebrook?
14
A.
Yes.
15
Q.
And do you know that she was doing a
16
husbandry procedure with Kasatka in March of 2008?
17
A.
Vaguely.
18
Q.
Are you in the line of supervision for
19
Stephanie Glazebrook?
20
A.
Yes.
21
Q.
So, she would have been a supervisor
22
underneath you, the assistant curator?
23
A.
Yes.
I remember the incident, but I don't
24
remember the specifics.
25
best.
Again, my memory is not the
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Q.
Well, let's turn, if we could, to Page 1383.

I'm going to turn to Page 1383 through 1386
of Exhibit C-6.
I hand you Page 1383 through 1385.
This is the incident involving Ms. Glazebrook in doing
husbandry with Kasatka at the slide-out; is that right?
A.
May I read it?
Q.
Certainly.
A.
(Reviewing document.)
Okay.
Q.
Tell me if I'm right.
Is it a fair statement
10
that this incident occurred because of some things going
11
on in another pool with Kasatka's calf?
12
A.
Yes.
13
Q.
And, that behavior with Kasatka's calf was
14
not seen prior to the incident occurring, right?
15
A.
Correct.
16
Q.
It was only seen after Sea World looked at
17
video footage after the incident, right?
18
A.
Yes.
19
Q.
So having those cameras in place --
20
A.
Sir?
21
Q.
Yes?
22
A.
This incident happened in E Pool.
23
Q.
I'm sorry, it happened?
24
A.
This incident happened at Shamu close-up, and
25
that particular video camera only videos that pool.
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Q.
Okay.
A.
So, there would be no way for these trainers
to look at a camera to know what's going on in a back
pool because there wasn't a camera at that time back
there to see another pool.
The cameras that are behind stage, those
allow you to see the pools.
see what was going on where Kalina was at that time.
Q.
They hadn't put one in to
So, after the 2006 incident, cameras were put
10
into various areas so trainers could see what was going
11
on, right?
12
A.
Yes.
13
Q.
And, that was so that you would know about
14
social interactions that might affect interaction with
15
the whales you were working with?
16
A.
It was to help us, yes.
17
Q.
But in 2006, knowing all of that, Sea World
18
chose not to put a camera in this E Pool even though it
19
had interactions in the E Pool?
20
21
22
23
24
25
A.
We had a camera back there during underwater
in that pool, yes.

Q.
But, not a monitor that the trainers could
look at to see what was going on?

A.
No, it's right next to the pool, but Kalina
was not in that pool.
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1
2
Q.
But, it wasn't a monitor of what was going on
in the other pools, right?
A.
Correct.
Q.
So, maybe I misunderstood.
The cameras and
monitors that were installed after 2006, I thought they
showed all of the pools to a trainer who wanted to look
at them?
A.
Well, we have video monitors in all the pools
that can see those particular pools.
10
Q.
Okay.
11
A.
The main pool, the cameras that are behind,
12
they see under water and the main pool.
They also see
13
-- let me just think -- they show different spots in the
14
main pool.
15
shows the underwater view of that whole pool.
The camera back at Shamu Closeup or E Pool
16
The cameras in the back -- I'm trying to
17
think what were the monitors before that -- I can't
18
remember what they were before 2006.
19
exactly.
20
Q.
Were there changes made to monitors?
21
A.
The only change I remember was we only had
I don't remember
22
one screen that was up above.
That was one screen, and
23
it just showed the main pool from the surface.
24
Q.
That was pre-2006, correct?
25
A.
Yes.
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Q.
And after 2006?
A.
That's when they installed the underwater
3
4
cameras for our main pool.

Q.
And, installing those underwater cameras did
not allow the trainer, the trainers involved in this
interaction on Page 1383 through 1385, to see what was
going on in the other pools, right?
A.
Correct.
Q.
So, in other words, the cameras failed to in
10
11
any way address this potential hazard, right?

A.
The cameras didn't fail.
The camera that was
12
on for E Pool didn't fail; it was fine.
13
camera available at the time to see Kalina.
14
Q.
That's a fair correction.
There wasn't a
The cameras didn't
15
fail, but the safety measure weren't sufficient to see
16
at the time it was happening the E Pool trainers to see
17
at that time what was happening, what was going on in
18
the other pools, right.
19
A.
Not underwater, no.
20
Q.
So, it was only after this incident occurred
21
that Sea World realized that there were social behavior
22
going on in the other pools while they were interacting
23
with Kasatka in the E Pool, right?
24
A.
Say that again, please?
25
Q.
I understand and you're probably on
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California time.
Only after the interaction in April with
Kasatka did the cameras allow Sea World to figure out
that there were social interactions going in the other
pool?
MS. GUNNIN:
Judge, I'm going to object to this
line of questioning.
This has no relevance to Orlando.
There's been no establishment of how the cameras are in
Orlando, how that affects the case in Orlando.
It talks
10
specifically about an incidents that occurred in San
11
Diego.
12
13
JUDGE WELSCH:
I understand.
Overruled.
Go
ahead.
14
BY MR. BLACK:
15
Q.
16
to try again?
17
A.
No, I understand the question.
18
Q.
So, your answer is, "no," that the cameras as
Do you recall the question?
Do you need me
19
configured in E Pool didn't allow them to see what was
20
going on in the other pools?
21
22
23
A.
The camera did not allow us to see Kalina in
B Pool underwater.
Q.
So, they weren't able to predict or help you
24
predict this incident that occurred described in Pages
25
1383 to 1385 before it occurred?
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A.
If I remember correctly, most of Kasatka's
incidents with her calf were mostly during shows.
don't recall ever her having any type of incident during
a learning session with her calf.
Q.
So, I
That wasn't quite my question.

My question was, the cameras that were
installed after 2006 were insufficient to allow
prediction of the incident that's described on Pages
1393 to 1385?
10
A.
No.
11
Q.
So, again, Sea World learned by an incident
12
that occurred, right?
They learned more information
13
about whales and how they behaved and what might affect
14
them, right?
15
A.
Yes.
16
Q.
I mean, that's the purpose of the incident
17
report, correct?
18
A.
Yes.
19
Q.
And, so learning either from a trainer's
20
mistake or learning from something that you didn't
21
realize beforehand that's part of what an incident
22
report is valuable for, right?
23
A.
Yes.
24
Q.
And, so on Page 1385, the curator of Sea
25
World of Florida talks about how amazing it was, the
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video feedback that was provided.
He was proud of the
fact that you could do a postmortem, if you will, to
analyze and incident after it happened and learn
something for the future.
That's what he wrote, right?
A.
That's what he wrote.
Q.
And, so there always could be one more thing
that Sea World is missing in the environment, not
picking up on?
A.
But, if you read this, though, the trainers
10
-- it says here on the front of it, with Corky and
11
Sumar, that trainers did visually see Corky and Sumar
12
were chasing Kolea off and on, so the camera didn't
13
matter, it looks like.
14
I'm trying to read this.
This is from three years ago,
15
Q.
Right.
16
A.
I don't think the camera had anything -- I
17
think they already knew that Corky and Sumar were
18
chasing Kolea off and on, and Corky displaced Kolea at
19
the same time.
So, someone saw that, so the camera
20
didn't matter.
And, in this situation, we weren't doing
21
water work, we were just on land.
22
understand.
23
24
25
Q.
So, I'm trying to
I'm trying to understand what you're saying.
You're reading from -A.
You're telling me that the camera is the
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reason why we didn't see it?
Q.
No.
A.
I'm looking at the front of here.
4
5
6
7
8
The
trainers saw it.

Q.
I'm sorry, I hate to interrupt you.
page are you on?

A.
What
Where are you reading?
I'm going back and forth from Page 2 and Page
3, and it says here:
"Kolea was in B and A pool with Corky and
10
Sumar.
Corky and Sumar were chasing Kolea off
11
and on and Corky displaced Kolea.
12
time, Kasatka squirted and came up at Stephanie."
13
So, they did see it, and we weren't doing
At the same
14
water work with her at the time.
And, at that time it
15
was -- my guess would be they were probably trying to
16
work her away from her calf to be okay with doing
17
interactions away from her for short periods of time.
18
So, that's why I'm looking and thinking, I
19
don't think the camera had anything to do with this.
20
Whether they had a camera or not, they already knew --
21
it says here that they knew that they were chasing
22
Kolea.
23
a dry interaction."
24
25
So Stephanie was probably like, "Well, I'm doing
Q.
But, now, if I might on Page 3, originating
park curator comments, this last sentence:
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"The new video system provided valuable
insight for us to determine what was going on
throughout the facility leading up to the
incident."
5
6
7
8
9
Did I read that correctly?

A.
You read it correctly.
But, I mean, I didn't
write it, so I don't know.

Q.
Well, you as the assistant curator, need to
know all about what's in these incident reports, right?
10
A.
I may have missed it.
11
Q.
Pardon?
12
A.
I may have missed that.
13
Q.
And that, in fact, is saying that the new
14
video system provided valuable insight for us to
15
determine how this incident occurred, but it only
16
allowed that determination to be made after the
17
incident; the video cameras, right?
18
A.
Repeat the question, please?
19
Q.
Certainly.
The valuable insight referred to
20
on Page 1385 was something that the new video system
21
allowed, right?
22
A.
23
Q.
And, it allowed that valuable insight to
24
25
occur only after the incident occurred, right?

A.
I guess.
I'm a little perplexed.
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I'm trying
1088
to read the incident report.
Q.
Please take as much time as you need.
A.
No, I don't need any time.
I'm looking at
it, and I'm trying to figure out where you're going.
know what this says, but in the front of it, it says
that they saw Corky and Sumar chasing Kolea.
asking about the video camera, but the video camera
didn't have anything -- they already knew.
knew there were social things going on with these
10
animals.
11
that.
12
So, you're
They already
They didn't need the video camera to tell them
So, I'm still -Q.
But, apparently, the video cameras provided
13
more insight into what was going on, right?
14
insight.
15
A.
Valuable
The video camera that was back at Shamu
16
Close-Up would have only shown underwater footage at
17
Shamu Close-Up of Kasatka, but they didn't need anything
18
else from the other pools.
19
knew that Kolea was being chased.
20
here because at that time, whenever we did interactions
21
with Kasatka, we always kept someone else in another
22
area to watch her calves, whoever it was to make sure
23
they were okay.
24
25
They already knew.
They
So, it doesn't matter
So, if they're watching, they're

communicating.
From this, I'm guessing reading this
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from my experience, that someone communicated from what
it says here that Kolea was having problems, so they
communicated up to Stephanie right before this happened.
Sometimes the chasing isn't below water;
sometimes it's above water.
You know, you can see them
going after each other, but I'm looking at this going if
they communicated it five seconds or shortly before this
happened, Stephanie was probably working her away from
Kolea as an approximation to get Kasatka more used to
10
working in a separate pool, but the camera would not
11
have mattered to this situation.
12
already were spotting the pool.
13
14
Q.
They already knew; we
So, the incident report, Sea World wants the
incident reports to be accurate, right.
15
A.
Yes, you want them to be accurate.
16
Q.
You don't want to provide misleading
17
information, do you?
18
A.
We want to be as accurate as possible.
19
Q.
So, now a Sea World of Texas curator on the
20
21
third page:
"What a great tool the cameras are.
Just a
22
couple of years ago, we would not have been able
23
to pinpoint what was the probable cause of this
24
incident."
25
Do you see that?
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A.
Yes.
Q.
So, in other words, the curator at Sea World
of Texas, much like the curator at Sea World of Florida,
has written that they believe that the cameras were
helpful in figuring out how this incident occurred,
right?
7
8
A.
I'm sorry, I have to read this because this
is three years ago, and I'm trying to understand it.
I know what it says.
10
I'm just trying to look at the situation, and I can't
11
remember this because it's been three years, but I'm
12
looking and reading it, and I'm trying to understand
13
what's happening here, and I'm a little perplexed.
14
Q.
Are you having trouble -- are you disagreeing
15
with the idea that even though the trainer may have seen
16
something at the time, there was also additional
17
information that the camera provided after the fact?
18
A.
I can't say anything about the cameras.
All
19
I can say is looking at what I'm reading in the last
20
paragraph here, all I'm seeing is if this was written
21
down, "Corky and Sumar were chasing Kolea off and on and
22
Corky displaced Kolea," now, the only thing I can say is
23
if the trainer was back stage or a trainer was in a wait
24
room because in our wait room, there's also a TV screen
25
in there that shows above footage of the back pools and
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above footage of Close-Up and underwater of the main
pool, but you wouldn't need a camera -- I'm sorry, sir,
I'm trying to figure this out, and it's been awhile
since I've seen this report and I'm perplexed.
Now, I understand why.
It's because Kolea
was in B and A pool.
I'm sorry, my bad.
When I'm
looking at this, what I'm looking at is in B Pool.
Q.
You're pointing to the first page?
A.
Yes.
If they were in B and A pool then, yes,
10
they would be able to see footage underwater from back
11
stage.
12
they were in B and A.
13
Pool, but they had B and A pool, and as long as they had
14
B and A pool, then, yes, you would be able to see
15
underwater footage with the cameras.
16
Yes, they would.
Q.
Because I didn't realize that
I thought they were just in B
But, apparently, being able to see underwater
17
footage with the cameras did not, in fact, prevent this
18
incident, right?
19
A.
Well, it looks to me that the trainers did
20
communicate that something was going on.
So Stephanie
21
was -- they probably told her right before this
22
happened.
23
so chances are it could have -- because it says right
24
here, "Kasatka was slightly vocal prior to the
25
intersection with the gate."
So, I mean, sometimes it can happen quicker,
CARLIN ASSOCIATES
So, maybe right before
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that happened, Kasatka heard her calf and then
Stephanie, I know she stepped back, and I do remember
she said she stepped back.
Q.
So, she told you that that?
A.
She didn't tell me that.
The trainer said
that Stephanie took a step back because they said that
Kolea was being chased by Corky and Sumar.
whenever the little whales are chasing the calf, you
take a little extra precaution, especially with Kasatka,
10
like, hey, you know what, her calf is not doing so good.
11
Just take a step back to give yourself extra space in
12
case she becomes become agitated.
13
And,
So, we did learn from that other incident if
14
that's what you're asking that, hey, whenever her calf
15
is involved in those incidents or anything with other
16
whales socially, to take a step back and that's what she
17
did and that's what kept her safe.
18
Q.
But, the video here that was so amazing, the
19
feedback was something that was done to help the post
20
hawk analysis, right?
21
A.
The video in this situation, now that I see
22
that it was A and B Pool, because I missed it on here --
23
I thought it was just B because the front of this is a
24
little bit -- sometimes there won't be a line and you
25
will have A and B Pool, but now that I read it, A and B
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Pool, the camera did work because the trainer saw her in
the main pool underwater from back stage.
communicated to those trainers at close up.
from our other incident, took a step back because
Kasatka was -- if something is going on with her calf,
the calves are getting displaced, we know that Kasatka
may become agitated.
position, and even if Kasatka was to come up at her, she
wouldn't have an opportunity to grab her.
10
11
12
13
14
Q.
Stephanie
Stephanie put herself in a safe
But, that's something you knew after the 2006
incident, right?
A.
They
You knew that --
With her calves, you take a little bit more
precaution.
Q.
Right.
And, so there would not be a need to
15
have corrective steps taken on Page 3 of this report if
16
you didn't learn something new from the video?
17
18
A.
Yes, we learned to keep a better eye on the
calves.
19
Q.
Right.
20
A.
Visually and from the cameras so we could
21
make sure we made better decisions.
22
happened, the trainers communicated, Stephanie stepped,
23
she didn't get aggressed on because we knew what was
24
going on from the underwater and above-water footage.
25
Q.
So, when that
This report, I think you said Stephanie
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probably knew, but I have not seen anywhere in here
where it references Stephanie looking at a video camera
or being told what was on the video at that time.
A.
Stephanie wouldn't have been looking at the
video camera because she would be watching her whale,
and the other trainers would be communicating to her
what's going on.
8
9
10
11
Q.
But, you don't know, because you weren't
there, whether the other trainers were watching the

video and communicated to her what was on video, do you?
MS. GUNNIN:
I'm going to object to him saying
12
he doesn't know.
13
report and he's attributing him to having knowledge.
14
He's an assistant curator.
15
He just asked him in detail about the
JUDGE WELSCH:
Overruled.
16
We're going back and forth.
17
This is getting redundant here.
18
BY MR. BLACK:
19
Q.
20
this incident?
21
A.
Let's move one.
Let's move on, Mr. Black.
So, there was still something to learn from
Well, from this incident -- I mean, I
22
honestly think the trainers did the best they could
23
because they saw Kolea being chased underwater, now that
24
I see that she was in A Pool.
25
And from that, they communicated through the
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system, and then after they communicated, Stephanie -- I
don't have to be there to know that she stepped back.
If you get communicated to that a calf is being
displaced, the trainers are all taught from Kasatka, to
take a step back.
trained on that, anybody that's on her team is trained
on that, to take a step back, to put yourself in a safer
position, and that's exactly why in this situation, even
though Kasatka stood up on her, she was in a safe spot.
10
11
You're all trained on that, I'm
There was no way Kasatka was going to grab her.

Q.
But, you still learned something and you
12
still took the correct additional new corrective steps
13
as a result of this incident?
14
A.
Well, it says here, "All of Kasatka's team
15
members would be aware of Kolea's interactions."
16
they were spotting her, they were already watching her.
17
So, they were doing what they were supposed to do.
18
it's just communicating quickly.
19
Q.
So, do a better job of communicating?
20
A.
It's not a better job.
21
22
Well,
So,
They communicated
effectively and quickly when they saw what was going on.
Q.
And, another corrective action was we have
23
stopped interacting with Kasatka in any slide-out area
24
as a result of this incident, right?
25
A.
Yes, and I believe -- the only way we could
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get near her was if her calf was in the same pool with
her.
Q.
So, Sea World learned something new and
learned a way to make interactions with Kasatka in the
future safer.
A.
In that particular situation, yes.
Q.
Now, you talked about the close relationship
and the close bond that the trainers have with the
whale?
10
A.
Yes.
11
Q.
And, despite wanting to have this closer bond
12
by being in the water, in fact, Sea World even today is
13
not doing water work with its whales and maintaining
14
whatever the benefits of that close bond would be,
15
right?
16
17
A.
You still can maintain a close relationship
through other means.
18
Q.
What other means?
19
A.
You train behavior, your time spent with the
20
animals.
21
relationship because it's another different way that
22
we're able to interact with the animals, but just
23
because of that, I mean, there are other ways that we
24
can interact.
25
I mean, the water work helps us with our
It may not give us that same variability with
CARLIN ASSOCIATES
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the water, although that would be beneficial, but we're
still able to maintain relationships.
is another tool to increasing relationships.
Having water work
MR. BLACK:
Thank you very much, Mr. Peters.
THE WITNESS:
You're welcome.
JUDGE WELSCH:
Thank you, sir.
You're excused
as a witness.
I will instruct you not to discuss your
testimony with other persons who may be called later as
witnesses in this case.
10
(Witness Excused)
11
JUDGE WELSCH:
He's excused, right?
12
MS. GUNNIN:
Yes, Your Honor, he is excused.
13
MR. BLACK:
Your Honor, we don't know what
14
15
might occur in their case.

MS. GUNNIN:
Judge, Mr. Peters plans to go
16
back tonight.
17
four-month-old baby at home and he needs to get back and
18
help care.
19
He needs to get back.
He has a
This was a hardship for him to come here.
MR. BLACK:
That's fine, Your Honor.
We would
20
ask, if necessary, the record be left open if we need to
21
call him in rebuttal for his deposition.
22
23
JUDGE WELSCH:
I will excuse him for right
now, and we'll deal with that later on.
24
MR. BLACK:
Very good, Judge.
25
JUDGE WELSCH:
Let's stand adjourned for lunch.
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Thank you.
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1
2
3
4
Be back at quarter after one.
We stand adjourned.
---o0o--(Whereupon, the morning session

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Afternoon Session
1:15 p.m.
JUDGE WELSCH:
Would the Secretary call her next witness,
6
7
8
please?
Your Honor, we call
Michael Scarpuzzi.
---o0o---
10
MICHAEL SCARPUZZI,
11
12
13
JUDGE WELSCH:
Sir, for the record, could you
14
15
16
THE WITNESS:
Mike Scarpuzzi.
The last name is
17
S-c-a-r-p-u-z-z-i, 11627 Winding Ridge Drive, San Diego,
18
California 93129.
19
JUDGE WELSCH:
Let the record reflect that Mr.
20
Coe, the representative of the Brancheau family, who has
21
been permitted to intervene on a limited purpose, is not
22
present at the moment, but they have been allowed to
23
participate as a limited intervener in this case only
24
for the purpose involving potential video that may or
25
may not be introduced.
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1100
It's also almost 25 after the hour, and I have
indicated the lunch hour would be until 1:15.
anyone here from the Brancheau family?
here?
Is there
Are they not
With that, I'm going to go ahead and proceed, and
I'll talk to Mr. Coe when he comes back.
this is going to involve anything that he is interested
in in terms of his limited intervention.
to go ahead and proceed, and I'll talk to Mr. Coe when
10
I don't think
So, I'm going
he gets in.
11
You may proceed.
12
13
MS. GUNNIN:
Judge, just for the record before
14
the testimony of Mr. Scarpuzzi, we would state for the
15
record our objection to his testimony based upon all the
16
reasons argued previously.
17
JUDGE WELSCH:
Those objections that you have
18
asked be made part of the record, are you objecting to
19
my proceeding without Mr. Coe?
20
MS. GUNNIN:
No, Your Honor.
21
JUDGE WELSCH:
Let the record so reflect.
22
MS. GUNNIN:
23
JUDGE WELSCH:
Go ahead.
24
That's fine.
---o0o---
25
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DIRECT EXAMINATION
Q.
Good afternoon, Mr. Scarpuzzi.
How are you
today?
A.
Good.
Q.
Could you tell me what your position is at
Sea World of San Diego?
8
9
A.
Yes, I'm the Vice President of Zoological
Operations, Sea World of San Diego.
10
Q.
How long have you held that position?
11
A.
About seven years now.
12
Q.
And, what position did you hold prior to that
A.
Vice President of Animal Training, Sea World
13
14
15
16
17
time?
San Diego.
Q.
How long did you hold the position of Vice
President of Animal Training?
18
A.
Since 1988.
19
Q.
And, you held what position up until your
20
promotion to your current title?
21
A.
That's correct.
22
Q.
How have your responsibilities changed
23
between being the Vice President of Animal Training and
24
now your current position of the VP of Zoological
25
Operations?
CARLIN ASSOCIATES
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A.
Yes.
Q.
What is the difference between those two
3
4
positions?
A.
I oversee multiple departments where, before,
I was Vice President of Animal Training overseeing the
Animal Training Department, now I oversee multiple
departments.
8
9
10
Q.
When you say "multiple departments," does
that mean that you oversee all the departments at San

Diego?
11
A.
Not all of the departments, no.
12
Q.
Does the Animal Training Department still
13
report to you?
14
A.
Yes.
15
Q.
Who is the VP of Animal Training currently?
16
A.
There is none.
17
Q.
Has that position been phased out?
18
A.
The title.
19
Q.
The title.
20
Is there someone at Sea World of
San Diego who is operating in that capacity?
21
A.
Yes.
22
Q.
Who is that?
23
A.
Al Garver.
24
Q.
What is Mr. Garver's working title?
25
A.
He's curator of animal training.
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1
2
Q.
And, has he held that position since your
promotion to your current title?
A.
Yes.
Q.
Now, you said you're responsible currently
for a number of departments within San Diego.
tell us what those responsibilities are?
A.
Could you
The mammal department, the fish department,
the bird department, veterinary services, the education
department, and the water quality department.
10
11
Q.
Are you also responsible for the safety of
animal trainers?
12
A.
Yes.
13
Q.
Is there someone else responsible for that
14
specifically?
15
A.
Well, it's a multiple responsibility.
16
Q.
Would that include Mr. Garver as well?
17
He is
responsible for animal training?
18
A.
Yes.
19
Q.
In your current role as VP of Zoological
20
Operations, how much interaction do you have with the
21
animal trainers?
22
A.
I don't understand the question.
23
Q.
On a day-to-day basis, do you interact with
24
25
As far as?
the animal trainers in your current position?

A.
Well, the way you asked the question, the
CARLIN ASSOCIATES
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1
2
3
answer would be, no.

Q.
Do you have any interactions with animal
trainers in your current position?
A.
Yes.
Q.
What interactions do you have?
A.
Communication with the curator of animal
7
8
9
10
11
12
training.
Q.
Is that your sole interaction is through Mr.
Garver?
A.
Organizationally, that's my main
communication in connection to the animal trainers, yes.

Q.
When you say communication, do you have a
13
standard meeting with Mr. Garver to talk about animal
14
training issues?
15
A.
No.
16
Q.
Does Mr. Garver report to you the activities
17
of the animal trainers on any specific basis or is he
18
required to?
19
A.
Yes.
20
Q.
What are those requirements?
21
A.
Daily as needed and organizationally, weekly
22
on Thursdays.
23
Q.
Are those communications verbal or written?
24
A.
Both.
25
Q.
So are the weekly reports written?
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A.
Yes.
Q.
Are the daily reports written as well?
A.
At times.
Q.
What times would they be written?
A.
When Mr. Garver chooses to.
Q.
Did you prepare for your testimony here
today?
A.
Yes.
Q.
How did you go about preparing for your
10
11
testimony today?
A.
Reading my -- reading incident reports,
12
reading my personal notes, reading reports that I sent
13
to Loro Parque; various things like that.
14
Q.
How did you select what reports to review?
15
A.
What I felt was appropriate to the situation.
16
Q.
Did you meet with your attorneys prior to
17
18
coming here today to testify?

MS. GUNNIN:
19
question.
20
Scarpuzzi met with attorneys prior to his testimony?
21
What is the relevance of whether or not Mr.
Your Honor, it's
22
relevant regarding the witness' corroboration to speak
23
truthfully.
24
JUDGE WELSCH:
Overruled.
25
THE WITNESS:
You would have to clarify what
CARLIN ASSOCIATES
Go ahead.
(216) 226-8157
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you mean by "meet."
Q.
Did you have any communication with your
attorneys prior to testifying here today?
A.
Yes.
Q.
And, when did those communications occur?
A.
I can't remember the exact date.
the telephone.
Q.
Was it within the last week?
10
A.
No, not over the phone in the last week.
11
Q.
Did you have any in-person meetings with your
12
It was over
attorneys?
13
A.
No.
14
Q.
Did you have any meetings with anyone
15
representing Sea World of Florida prior to your
16
testimony today?
17
18
19
A.
That's really vague.
You would have to
clarify what your question is.

Q.
My question is, did you have any meetings
20
whether in person or over the telephone?
That includes
21
all electronics.
22
anyone from Sea World of Florida as it relates to your
23
testimony here today?
Have you had any communication with
24
A.
No.
25
Q.
Now, you said you have been senior VP of
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Zoological Operations for the past seven years?
A.
Yes.
Q.
And, as a part of your responsibilities, do
you review and sometimes write comments on incident
reports?
A.
Yes.
Q.
As the VP of Zoological Operations, are you
still -- you're familiar with the corporate incident
reports?
10
A.
Yes.
11
Q.
And, in your role as VP of Animal Training,
12
there are times when you would actually write comments
13
if there was an incident from another park; isn't that
14
correct?
15
A.
Yes.
16
Q.
And, since your promotion, is that something
17
that you still do, or is that something that Mr. Garver
18
would do?
19
20
21
22
A.
It would be mostly Mr. Garver's
responsibility.
Q.
Are there any circumstances where you would
weigh in as the VP of Operations?
23
A.
Yes.
24
Q.
What circumstance would that be?
25
A.
To Loro Parque incident was one circumstance.
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Q.
Any others?
A.
No, the other ones were Mr. Garver's main
responsibility.
However, I would review them.
Q.
And when you say --
JUDGE WELSCH:
Mr. Coe, I just want to let you know, we have
Excuse me for one moment.
started with Mr. Scarpuzzi.
went ahead.
capacity.
10
11
12
You weren't present, but I
I think you're here in a limited intervener
Do you have any objection to my going ahead and

starting with Mr. Scarpuzzi?
I don't think it affects -- he works out of the
13
San Diego.
14
is in this proceeding, but if you do have an objection,
15
I want you to state it on the record.
16
I don't think it affects what your purpose
MR. COE:
I don't, Your Honor.
And, I want to
17
apologize that I was delayed.
18
that it was fine with me that you start with this
19
witness prior my getting back, but I do not have an
20
objection.
21
JUDGE WELSCH:
22
Okay, go ahead.
23
24
25
Q.
I tried to send an E-mail
Thank you.
When you mentioned the Loro Parque incident,
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what incident are you referring to?
A.
The Alexis and Keto incident.
Q.
What is your understanding of the Loro Parque
incident?
A.
I understand it.
Q.
What do you know about it?
A.
I'm completely familiar with it.
Q.
Well, can you tell Court what you know?
A.
What do you want to know?
10
Q.
What do you know about the incident?
11
A.
12
Q.
Is the question unclear?
13
A.
Yes, I want to know --
14
Q.
What do you know about the Loro Parque
15
incident that occurred in December of 2009?
16
A.
17
JUDGE WELSCH:
18
I understand it completely.
She's asking you, can you just
describe the incident as you know it; what happened?
19
THE WITNESS:
20
want full details?
21
understand it.
Do you want a snapshot?

What is the question?
22
23
Q.
Do you
I don't
I want you to give the Court a description of
24
what you understand and know about the Loro Parque
25
incident.
If you would give me a few details, I'll ask
CARLIN ASSOCIATES
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1110
you follow-up questions.
2
3
A.
It happened on December 24, 2009.
It was an
incident with Keto and Alexis.
Q.
And, why were you involved, if at all, in
that incident?
A.
I was at that point given the responsibility
to oversee Brian Rokeach and the training at Loro Parque
from Sea World's perspective.
Q.
When you say you were given that
10
responsibility to oversee Mr. Rokeach, when were you
11
given that responsibility?
12
13
14
15
16
A.
I was given that responsibility in June of
Q.
When you say you were overseeing Mr.
2009.
Rokeach's activity at Loro Parque, what did that entail?

A.
Regular communication between Brian and
17
myself and visits, personal visits to Loro Parque,
18
weekly conference calls between Loro Parque and Sea
19
World.
20
Q.
And, when you say "weekly conference calls
21
between Sea World and Loro Parque," who participated in
22
those calls?
23
24
25
A.
Brian, Miguel, Dr. McBane, Chuck Tompkins,
Chris Dold, myself, Michael Tucker.

Q.
So, were all the Sea World Parks represented
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on the call?
A.
Not always.
Q.
Not always but routinely, were they welcome
to be in on the weekly call?
A.
They were welcome.
Q.
What was the purpose of the calls?
A.
To get an update from Loro Parque from a
water quality and animal care and animal training
perspective.
10
11
12
13
14
15
Q.
Why was Brian Rokeach there?
What was his
purpose for being there?

A.
He was the Sea World representative to the
Sea World whales.

Q.
So, did he act as a senior trainer at Loro
Parque?
16
A.
Actually, he was a supervisor.
17
Q.
So, he supervised the Loro Parque employees?
18
A.
No, he did not.
19
Q.
Did he supervise the activities related to
20
21
22
23
24
25
Sea World's killer whales?

A.
whales.
To the training and the care of the killer

He supervised that aspect.
JUDGE WELSCH:
As I understand it, the two
whales, what were their names?

CARLIN ASSOCIATES
Keto was one of the
(216) 226-8157
1112
whales, Your Honor.
JUDGE WELSCH:
I thought it was Alexis.
THE WITNESS:
Alexis is the name of the
trainer.
JUDGE WELSCH:
And Keto was a Sea World whale that Sea World
Oh, trainer.
I'm sorry, okay.
loaned to Loro Parque?
THE WITNESS:
JUDGE WELSCH:
So, Mr. Rokeach was there just
THE WITNESS:
To supervise the Sea World
10
11
12
13
14
to--
whales.
He did not supervise the Loro Parque trainers.
JUDGE WELSCH:
Were there other whales other
than Keto?
15
THE WITNESS:
Yes, there were.
16
JUDGE WELSCH:
How many whales did Sea World
17
loan to Loro Parque?
18
THE WITNESS:
Four.
19
JUDGE WELSCH:
Four whales.
20
21
Q.
When you say that Mr. Rokeach was supervising
22
the whales that were on loan or on lease to Loro Parque,
23
what was his job function?
24
Was he training the Loro Parque trainers so they could
25
be competent?
What was he actually doing?
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1
2
A.
He was continuing on the process of training
the Loro Parque trainers.
Q.
And, Loro Parque was actually using the
operant conditioning program that the Sea World Parks
were using; isn't that correct?
A.
That's correct.
Q.
And, when incidents would occur during the
time when Loro Parque had Sea World killer whales, Loro
Parque would weigh in on those incidents like the other
10
Sea World Parks; isn't that correct?
11
A.
12
Q.
Do you know what I mean?
13
A.
No, I don't understand completely what you
Q.
Your corporate incident reports are created
14
15
mean.
16
after there is an incident with a killer whale, and if
17
an incident happens at San Diego, that report is then
18
shared with the curators of the other parks, Florida and
19
Texas?
20
A.
Sea World Parks.
21
Q.
Sea World.
22
A.
Yes.
23
Q.
And, during the time when Loro Parque
24
actually had killer whales that were owned by Sea World
25
on lease by Loro Parque, Loro Parque weighed in on what
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they thought about the incident or the corrective
measures that a particular park might have taken; isn't
that correct?
A.
Not to my knowledge.
Q.
Not to your knowledge?
Do you get an
incident report back once it's complete; once all the
parks have made their comments?
A.
Yes.
Q.
And, do you review them --
10
A.
Yes.
11
Q.
-- in your capacity as VP?
12
A.
Yes.
13
Q.
You have in front of you --
14
15
Can I approach the
16
JUDGE WELSCH:
Yes.
17
18
Q.
-- an exhibit that's already in evidence, but
19
the first tab, this is an incident report and it has a
20
Bates number?
21
22
JUDGE WELSCH:
For the record, you're looking at
Exhibit C-6?
23
24
25
Q.
C-6, Your Honor.
Can you turn for me to Sea World 1383?
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A.
(Witness Complies)
Q.
I'm showing you a document that was produced
by Sea World of Florida and Bates Number 1383 through
1385.
Can you identify this document for the record?
A.
Yes.
Q.
Are you familiar with the corporate incident
reports that are prepared by Sea World Parks?
A.
Yes.
Q.
And, this report is dated March 18, 2008; is
10
that correct?
11
A.
Yes.
12
Q.
And it involves trainer Stephanie Glazebrook?
13
Is that the trainer that's identified?
14
A.
Yes.
15
Q.
And the animal involved is Kasatka?
16
A.
Yes.
17
Q.
Can you turn to Sea World 1385, the third
19
A.
(Witness Complies).
20
Q.
On that page, do you see the notation that
18
page?
21
has Sea World of Florida, Sea World of Texas and then it
22
also has Loro Parque?
23
A.
Yes.
24
Q.
And, would you take the opportunity to
25
actually read what Loro Parque wrote there?
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A.
(Witness Complies).
Okay.
Q.
Does reviewing the document refresh your
recollection at all that Loro Parque would, in fact,
provide comments on incidents that occurred at the Sea
World Parks during the time that they actually had Sea
World killer whales?
A.
In this particular incident, they did.
Q.
Do you recall ever reviewing those comments
that you just read on that particular incident?
10
11
A.
I'm sure that I've read this before, but I
did not remember that detail.
12
Q.
You can actually put that back, and I'll have
13
you look at another incident report.
That's Sea World
14
1379.
15
was generated by Sea World of California.
This is another corporate incident report that
16
A.
Okay.
17
Q.
I guess my question is, is this an incident
18
report that was created by Sea World of California?
19
that correct?
20
A.
Yes.
21
Q.
The incident report is dated September 10,
Is
22
2008, and it involved Robin Sheets and Kasatka as the
23
killer whale?
24
A.
Yes.
25
Q.
Now, can you turn to Page 3?
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A.
(Witness Complies).
Q.
On Page 3 it says, "Originating park curator
comments."
have made, or would that have been Mr. Garver at this
time in 2008?
A.
That would be Mr. Garver.
Q.
Could you turn to the next page?
A.
Yes.
Q.
Do you see where it says, "other park curator
10
Would they have been comments that you would
comments"?
11
A.
Right.
12
Q.
This is another example where you see Sea
13
World of Florida provided their comments and analysis of
14
the incident as well as Sea World of Texas and Loro
15
Parque.
16
refresh your recollection at all that Loro Parque was
17
routinely commenting and providing feedback and analysis
18
on incidents that occurred at the Sea World Parks?
And, does reviewing this incident report
19
A.
They obviously did on this one.
20
Q.
I guess my question is, as VP of Zoological
21
Operations of Sea World of California, is it your
22
testimony that you don't have knowledge that Loro Parque
23
during the time that they leased the whales from Sea
24
World, that they were actually provided an opportunity
25
to give feedback on incidents that occurred at Sea
CARLIN ASSOCIATES
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1
2
World?
A.
Yes, they were provided the opportunity.
That's obvious, but my recollection, if I remember the
question, was had they weighed in on every one that
happened since we have had Loro Parque, and I still say
I don't think they did.
think so.
8
9
10
11
So, maybe they did, but I don't
You have shown me two examples, but the

question was, do they weigh in on every incident report,
and I answered, "no."
Q.
Now, you mentioned that you were given the
12
responsibility to oversee Mr. Rokeach while he was at
13
Loro Parque, and I asked you some questions about what
14
your understanding was of the incident that occurred at
15
Loro Parque, and I guess I'll ask it again.
16
describe what you know about the incident that occurred
17
with Keto and Alexis Martinez?
18
MS. GUNNIN:
Can you
19
question about Loro Parque.
20
foundation laid for how that is relevant to Sea World of
21
Florida.
22
There has been no
Under the San Diego Park, the justification by the
23
Secretary was that's another company in the industry.
24
There has been no establishment that Loro Parque is a
25
company that would be considered someone as a leader in
CARLIN ASSOCIATES
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the field to be someone that you would attribute
industry recognition from.
In fact, the testimony that has been presented in
this case would be the opposite.
industry leader.
there should be recognition of hazards based on Loro
Parque, then that would fail.
8
9
So, if the Secretary's argument is
So I wonder what the relevancy is of delving into

the Loro Parque incident because that's clearly not a
10
park in this country.
11
company.
12
13
They're not an
It's a park owned by another
So, the relevancy should be established.
JUDGE WELSCH:
ahead.
14
Do you remember the question?
15
THE WITNESS:
16
JUDGE WELSCH:
She's asking you to describe the
incident.
19
20
Is it the same question she asked
me before?
17
18
Go
THE WITNESS:
What would you like to know about
it?
21
22
Q.
What was your involvement?
23
A.
I was called on the phone by Brian Rokeach
24
when the incident occurred, and I got on a plane and
25
went over there to help and to give Brian support and to
CARLIN ASSOCIATES
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1120
help in that situation.
2
3
Q.
And, what were you told when Mr. Rokeach
called you?
A.
was bad.
Q.
What did he tell you was the incident?
A.
He didn't go into the details at that point.
Q.
So, you just got on a plane and flew to the
9
10
That there had been an incident and that it
Canary Islands to give him support without knowing

anything?
11
A.
Not from the first call.
You asked me what
12
he told me, and I'm telling you what he told me on the
13
call.
14
Q.
Mr. Scarpuzzi, we can play this game all day.
15
I'm asking you simple basic questions, and you're giving
16
me the runaround.
17
JUDGE WELSCH:
18
19
20
21
22
Let's stop.
So, I'll ask you the
question again.
JUDGE WELSCH:
question.
Let's stop.
Go ahead.
THE WITNESS:
Well, you asked me what he told
23
me, and I told you what he told me.
24
been an incident and it's bad."
25
Just answer the
He said, "There's
CARLIN ASSOCIATES
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1121
Q.
And what did you do in response to that?
A.
I said, "Go back and take care of the
situation.
we're going to do from Sea World."
your question.
Q.
I will call you back and let you know what

That's the answer to
So, he told you there had been an incident
and that it was bad?
A.
That's correct.
Q.
And, you told him to go and deal with it and
10
you would call him back?
11
A.
That's correct.
12
Q.
What did you do in response to that, knowing
13
14
there had been an incident and it was bad?

A.
Then, I called Brad Andrews on his cell phone
15
and got no answer.
Then, I called his home and got no
16
answer.
17
then called Jim Atchison and I got ahold of him.
I left a message on both of those phones.
18
Q.
What did you tell -- Mr. Atchison, you said?
19
A.
Atchison.
20
Q.
What did you tell him?
21
A.
That there had been an incident at Loro
22
Parque; that Brian had called me and he said it was bad,
23
and that's all I know at this point.
24
25
Q.
At some point during that day, did you learn
what actually occurred?
CARLIN ASSOCIATES
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1122
A.
Yes.
Q.
What did you find out?
A.
After that phone call?
Q.
What did you find out, Mr. Scarpuzzi, as to
5
6
what actually occurred at Loro Parque?

A.
Brian called me back, and he told me that
Alex didn't make it.
And I said, "Okay, I'll call you
back when I know what we're going to do from here."
We did not discuss the incident over the
10
phone.
11
Your questions aren't appropriate for me to answer the
12
questions.
13
14
That's why I'm having a hard time telling you.
Q.
So, you found out that Mr. Martinez, who was
an animal trainer at Loro Parque, did not make it?
15
A.
That's correct.
16
Q.
Did you ask any questions as to what caused
17
I did find that out.
the death?
18
A.
No, I did not.
19
Q.
At some point in time, did you learn what
20
actually occurred?
21
A.
At some point in time, yes.
22
Q.
Okay, and when did you learn that?
23
A.
When I arrived at Loro Parque the next day.
24
Q.
I guess I'll go back.
25
What did you find out
about the details?
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1123
A.
That's when I walked the incident with Brian
at Loro Parque and had him go over the actual incident
itself, and then I took notes and helped take care of
the whales and did what I was supposed to do there with
helping out Brian.
Q.
What did Mr. Rokeach tell you as you walked
the scene, the area where the incident occurred?
did you learn?
A.
10
What
I learned the details of the training
session; what happened in that session.
11
Q.
What did you actually learn?
12
A.
Well, I would have to go back to the incident
13
report to tell you all the steps and details of the
14
incident.
15
16
this witness as hostile?
17
questions.
18
19
He's not answering any of my
I don't know what else to do.
JUDGE WELSCH:
I understand.
Yes, go ahead.
You may proceed.
20
21
Q.
22
Your Honor, can I treat
So you arrived at Loro Parque the next day;
is that correct?
23
A.
Yes.
24
Q.
And, you learned that the killer whale, Keto,
25
had actually killed Mr. Martinez; isn't what correct?
CARLIN ASSOCIATES
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A.
That's correct.
Q.
And, that Mr. Martinez was pulled in the
water by Keto; is that correct?
A.
That's incorrect.
Q.
Isn't it true that he was drowned by Keto?
6
7
8
He died of drowning; isn't that correct?

A.
I'm not sure what the cause was; but, yes,
Keto did forcibly take him underwater.
Q.
Forcibly took him underwater?
10
A.
Yes.
11
Q.
And, Sea World actually analyzed the incident
12
involving Keto and Alexis Martinez; isn't that correct?
13
You came to the conclusion as to why the incident
14
occurred?
15
A.
Yes, we did.
16
Q.
And, one of the conclusions that Sea World
17
came to was that Mr. Martinez got out of the water too
18
close to the whale; isn't that correct?
19
20
21
A.
No, I don't think that's the conclusion that
we came to.
Q.
When Mr. Martinez was trying to exit the
22
pool, didn't he exit the pool too close to Keto?
23
that one of the observations that was made?
24
A.
He was attempting to exit the pool.
25
Q.
And he never exited the pool?
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Wasn't
1125
A.
He did not exit the pool.
Q.
Wasn't that one of your observations that Sea
3
4
World made is that was an error made by Mr. Martinez?

A.
If I can remember the incident report, it was
suggested by one park that they would have done it
differently.
Q.
They would have done it differently?
A.
They would have done it differently.
That
was their suggestion.
10
Q.
What was your analysis of the incident?
11
A.
My analysis was that there were several
12
behavioral pieces that led up to what I feel was
13
eventually the reason for Keto to do what he did to
14
Alexis.
15
significant or major that in and of itself would have
16
caused this type of behavior from the killer whale.
17
But, none of those pieces were anything
So, my analysis was a combination of
18
relatively commonplace and minor occurrences probably
19
culminated to the point where Keto did what he did, but
20
none of them in and of themselves was what I would call
21
a significant enough event by themselves to cause this.
22
23
24
25
Q.
What did you believe to be the behavioral
pieces that culminated into this accident?

A.
Well, there was -- one was that there was
some incorrect behavior being repeated which is the spy
CARLIN ASSOCIATES
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1126
hop in the center.
fed primary reinforcement in the session.
was that the secondary trainers used primary, and Alexis
only used secondary reinforcers, and then I think that
was it.
recollection, that was the main one.
7
8
Q.
Another one was that Alexis had not

Another one
There might be one more, but to the best of my
One of the reasons was that you didn't
believe that Keto had been reinforced properly?
A.
No, I wouldn't say that.
That's not what I
10
said.
11
a lot of ways to reinforce, and Alexis choosing not to
12
reinforce with primary in that session was his choice.
13
In and of itself that would not cause Keto to do what he
14
did, but it was a piece.
15
16
17
Keto was being reinforced properly, but there are
Q.
Were there any other pieces that you
determined helped to cause this incident?

A.
Another piece was repeating the spy hop
18
behavior in the center after that was incorrect.
19
was a piece.
20
JUDGE WELSCH:
What did you call that?
21
THE WITNESS:
Spy hop.
Your Honor, it's when
22
the whale comes straight up out of the water, sky
23
hopping straight up out of the water.
24
25
Q.
Did Sea World determine Mr. Rokeach
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That
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behaved
1127
properly during the interactions with Keto and Alexis
Martinez?
A.
Yes.
Q.
Was there any trainer ever identified?
A.
No.
Q.
You mentioned earlier that you prepared -- I
don't know if you said you prepared or maybe commented
on an incident report that was created as a result of
the Loro Parque incident?
10
A.
Yes, that's correct.
11
JUDGE WELSCH:
Which part?
Did you prepare
12
the incident report, or did you just comment on the
13
incident report?
14
15
THE WITNESS:
I did both.
both, Your Honor.
16
17
Q.
18
I participated in
Who else participated in the preparation of
the incident report for the Loro Parque incident?
19
A.
Miguel and Brian Rokeach.
20
Q.
I'm sorry, who is Miguel?
21
A.
Miguel is the head trainer at Loro Parque.
22
JUDGE WELSCH:
He worked for Loro Parque?
23
THE WITNESS:
He worked for Loro Parque, yes.
24
JUDGE WELSCH:
And, Mr. Rokeach worked for Sea
25
World?
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THE WITNESS:
Q.
Yes.
After the incident report was created, was
that report circulated to the Sea World Parks?
A.
Yes, it was.
Q.
Now, you would agree with me that the purpose
of creating incident reports is so that the trainers can
learn from the incidents that have occurred?
A.
10
Q.
And, for the Loro Parque incident, I guess,
11
one of the things that the trainers learned was that
12
they shouldn't have continued a behavior that was being
13
performed incorrectly by the whale?
14
A.
No, I wouldn't say that.
15
Q.
You wouldn't say that?
16
A.
No, I would not say that.
17
Q.
But, you did say that was one of the pieces
18
of allowing it to occur?
19
A.
That's correct.
20
Q.
So, in reviewing the Loro Parque incident,
21
what was the take-away?
22
incident, if anything?
23
A.
What did you learn from that
I think the one thing that we learned was to
24
probably continue to be variable with our reinforcers.
25
That was one of the things that we talked about was that
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the variability of reinforcement was important, and to
make sure that we continue to not allow situations to
become predictable.
to become more variable in their reinforcers.
5
6
7
8
Q.
So we just encouraged the trainers
I'm sorry, what does it mean to not allow
variability in reinforcement?
A.
To make sure there is variability in
reinforcers.
Q.
To make sure that there is?
10
A.
Yes.
11
12
Let me back up because the question was
specifically -- can you repeat the question?

Q.
13
I'm sorry.
I don't know what you were answering now.

I think we were asking what the take-away
14
was; what did you learn from that incident, and I said
15
was one of the things to not allow behavior that's being
16
performed incorrectly to continue?
17
A.
In general, I think the one thing we learned
18
was that in all of the feedback on that incident, we
19
learned -- we were surprised that those four to five
20
minor situations or minor things that I discussed
21
earlier would lead to this type of behavior from the
22
killer whale.
23
So, I think that's one thing we learned.
24
And, then, we talked about each one of those details
25
about, you know, the main control trainer reinforcing
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with primary reinforcement, choosing not to do that in
that session I think it's completely appropriate; yet,
in that particular session, obviously, it was a piece of
it.
sure we use variability in reinforcement.
So, we learned that it's still important to make
So, each one of the pieces was evaluated, and
we learned probably the degree of an enforcement in this
particular case with this particular animal.
Q.
And, as a result of this incident at Loro
10
Parque, did the Sea World Parks suspend water work after
11
this incident?
12
A.
Yes, they did.
13
Q.
And, how long did they suspend water work?
14
A.
It was different in each park.
15
Q.
How long did your park suspend water work?
16
A.
Until I think it was, I want to say either
17
December 31st or January 1st.
It was the Saturday after
18
I came home.
19
the 30th, a Thursday if I'm remembering right.
I came home on a Thursday.
I think it was
20
Q.
You said December?
21
A.
Yes, I came to San Diego I think it was
22
December 30th, so I think that Saturday we started water
23
work in California.
24
JUDGE WELSCH:
So about a week?
25
THE WITNESS:
Yes.
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1131
1
2
JUDGE WELSCH:
The incident happened on December
24th --
THE WITNESS:
Which was a Thursday.
JUDGE WELSCH:
-- of 2009, you said you got
back.
So, a little over a week?
And you don't know
about the other parks; that the just San Diego?
THE WITNESS:
I do know about the other parks.
Q.
How long was Florida out of the water?
10
A.
I think Florida was out of the water on
11
Friday the 25th.
I think they went back into the water
12
sometime on what weekend.
13
Saturday or Sunday.
I'm not sure which day;
14
Q.
What about Texas?
15
A.
Texas went back into the water after Florida
16
did, probably -- I'm not sure which day but it was after
17
Florida.
18
Q.
Florida was the first one.

Do you know why water work was suspended?
19
Why water work was suspended at the San Diego Park after
20
the Loro Parque incident?
21
A.
Well, it was suspended in the San Diego Park
22
because I directed them to suspend it until I came back
23
with the incident, and we could discuss it and implement
24
any lessons that we had learned.
25
California from my direction.
CARLIN ASSOCIATES
So, it was stopped in
(216) 226-8157
1132
Q.
And, that's because -- you made that decision
because what happened at the Loro Parque facility also
influenced the San Diego Park; isn't that correct?
A.
What happens with a Sea World killer whale,
yes, I think we need to understand what's going on, and
then learn our lesson and implement that with our Sea
World whales if it's appropriate.
8
9
10
Q.
Were any changes made at the San Diego Park
as a result of the Loro Parque incident?

A.
Just a discussion and reiteration of the
11
minor parts of the incident were reinforced that we need
12
to be more variable with our reinforcement and make sure
13
we're using secondary and primary throughout the session
14
so these things were just reinforced.
15
JUDGE WELSCH:
Let me just ask you, those
16
changes in reinforcers, you called them, are you
17
applying that only to Keto, the whale involved in the
18
incident, or are you doing it for all the whales?
19
THE WITNESS:
20
whales at San Diego.
21
Honor.
22
We're just applying it to the

Keto is in Loro Parque, Your
What I was being asked was what changes did we
23
make in San Diego for our whales.
24
answering there are very, very minor, very commonplace
25
reinforcing that they're using with the animal trainers
CARLIN ASSOCIATES
And, again, I'm
(216) 226-8157
1133
is very commonplace.
just reinforced to continue to be variable with our
reinforcers.
We use it all the time.
JUDGE WELSCH:
So, we
So, in your mind then, no real
changes took place as a result of the December 24, 2009,
incident?
institute any real changes.
what was already being done at San Diego?
As a result of that incident, you didn't
THE WITNESS:
You were just reinforcing
That's correct, Your Honor, we
10
did not make any kind of significant changes in, like,
11
the standard operating procedures or anything like that.
12
It was just the continual reinforcing the importance of
13
the use of reinforcements for the whale.
14
15
16
17
JUDGE WELSCH:
And you don't know if any
changes were done in any other park?

THE WITNESS:
That's correct.
I do not know if
there were any changes in the other parks.
18
19
Q.
As the Sea World representative who went over
20
to Loro Parque to evaluate the incident, did you then
21
come back and provide feedback on the incident to the
22
other Sea World Parks?
23
A.
Yes, I did.
24
Q.
And, how did go about doing that?
25
A.
I left Loro Parque on Monday so that was a
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travel day, went to Sea World of Florida, and I met with
the Shamu trainers there on Tuesday and reviewed the
actual written document as well as the video of the
incident with the Shamu trainers.
JUDGE WELSCH:
Here in Orlando?
THE WITNESS:
In Orlando, yes, sir.
Q.
9
10
11
12
And, when you say you reviewed the documents
with the Shamu trainers, are you referring to the

incident report?
A.
Yes, at what state it was in at that point
because it takes a process.
13
Q.
Of course.
14
A.
So the draft form that it was in at that
15
point, I used that as well as my notes as a basis to go
16
over the incident report with the Shamu trainers at Sea
17
World of Florida.
18
19
20
JUDGE WELSCH:
That would be all of the
trainers; not just the curators?

THE WITNESS:
Yes, that's correct, with all the
21
Shamu trainers at Sea World of Florida.
22
trainers from other areas or anything like that.
23
24
25
JUDGE WELSCH:
So, no other
And that would include Ms.
Brancheau?
THE WITNESS:
Yes, it did.
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Q.
How long was that meeting?
A.
The meeting was probably just over an hour,
4
5
6
hour and a half probably.

Q.
And, you said you also allowed the trainers
to review the video?
A.
Yes, I did.
Q.
And, that video was that a copy that you had
9
10
11
received from Loro Parque?

A.
Well, I don't know if it was a copy, but it
was the video from Loro Parque.
12
Q.
Did you retain that video?
13
A.
I retained it to do the review with Sea World
14
of Texas and Sea World of California.
15
Q.
And, what did you do with the video?
16
A.
Then, I sent it back to Brad Andrews.
17
Q.
And Brad Andrews is part of Sea World,
18
correct?
19
A.
Yes.
20
Q.
You didn't send to it Loro Parque?
21
A.
I did not.
22
Q.
I know I got off in talking about Loro
I sent it back to corporate.
23
Parque, but I want to go back to when we initially were
24
talking about incident reports and the fact that one of
25
the purposes of creating an incident report is so that
CARLIN ASSOCIATES
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trainers can learn from the incident; is that correct?
A.
Q.
And, that's in hopes that the trainers, if
they encounter a similar incident, will respond
appropriately?
A.
7
8
9
10
Well, it's to continue to build on the body
of knowledge that we have in working with these animals.

Q.
Because this is sort of a work in progress,
right; that you're continuing to learn as you work with

the killer whales?
11
A.
We're continuing to learn, yes.
12
Q.
Now, I had you look at some incident reports,
13
but I want to take you back to an incident report
14
involving Ken Peters and the killer whale, Kasatka.
15
And, just before we go and talk about that,
16
one of the procedures when a killer whale somehow gets
17
ahold of a trainer, is that trainers are supposed to
18
initiate emergency response procedures; isn't that
19
correct?
20
A.
At some point, they are given the empowerment
21
to make a judgement call as to when to put that into
22
place, yes.
23
Q.
And, what is your understanding as to when
24
they would make that judgement call?
25
specific or does it just depend on the situation?
CARLIN ASSOCIATES
Is there something
(216) 226-8157
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A.
It depends on the situation.
Q.
And, part of that emergency procedure is the
call-back of the killer whale; is that correct?
4
5
6
A.
That's one of the options that they have,
Q.
And, in Kasatka's instance, she didn't always
yes.
respond to a call-back; isn't that correct?
have problems over the years with her responding to
call-backs?
10
A.
I wouldn't say that.
She was very well
11
trained to respond to call-backs.
12
to call-backs.
13
she would respond.
14
Q.
Did you
So, she would respond
That doesn't mean she was perfect, but
And, when you -- I know I'm using the word
15
that she had problems responding to the call-backs, but
16
in your mind when you initiate a call-back to a killer
17
whale, if they don't respond the first or second time,
18
is that a problem?
19
you that a killer whale is not responding?
20
A.
When does it become problematic to
Well, if they don't respond to the call-back,
21
that would be a clue right there that something is not
22
correct.
23
I mean, because we use the call-back, and the
24
animals respond to it and are reinforced for it, I mean,
25
it is a very high frequency that they're going to
CARLIN ASSOCIATES
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respond to it.
don't respond, that's something of significance you
should take into your evaluation of the incident as you
make your judgement call.
5
6
Q.
A.
I know there was one in 1999, but I don't
recall the details.
9
10
Do you recall the incident that occurred
between Kasatka and Ken Peters back in 1999?
7
8
So, of you give a call-back and they
Q.
And, at that time in 1999, would you have
been the curator of the park?
11
A.
I was the Vice President of Animal Training,
13
Q.
Is that now the job that Mr. Garver is doing?
14
A.
That's correct.
15
Q.
Can you turn with me, if you will, to Sea
12
16
yes.
World 681?
17
A.
(Witness Complies).
18
Q.
Can you identify this document for the record
19
681.
as a corporate incident report?
20
A.
Yes.
21
Q.
Was this a report that was created by Sea
22
World of California?
23
A.
Yes.
24
Q.
And, the date on that report, is it June 13,
25
1999?
CARLIN ASSOCIATES
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1
2
3
A.
That's the day of today's date, yes.
The
incident was 6/12/99.

Q.
incident.
Peters?
I'm sorry, I'm looking at today's date on the

And, the trainer that was involved was Ken
A.
Yes.
Q.
And the animal that was involved was Kasatka?
A.
Yes.
Q.
And, if you would turn with me to Page 4 of
10
the report?
11
A.
(Witness Complies).
Okay.
12
Q.
In this area where it has, "Give the
13
completed account or analysis of the accident," is that
14
something that Mr. Peters would have created?
15
16
A.
Well, not necessarily by himself, but he
would have been a part of it.
17
Q.
Who else would have created this document?
18
A.
Well, it would have been the trainers who
19
were there, first of all, would be part of it.
20
would actually be the driving force of it.
21
there.
22
the account.
They
They were
So, they would be the ones who would complete
23
Q.
It was a collaborative document?
24
A.
Yes.
25
Q.
So, the trainers that are listed on the
CARLIN ASSOCIATES
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front, Robin Sheets, Lisa Hubley and John Harper would
have given input regarding this incident?
3
4
5
A.
They would have been the ones to create it,
Q.
And, this incident involved Kasatka trying to
yes.
grab parts of Mr. Peters, different parts of his body;
his hands, his foot, he tried to mouth him or something
to that effect?
A.
Do you want me to read it?
I would have to
10
read it.
11
Q.
You can read it.
12
A.
(Witness Complies).
13
Q.
And, again, I guess my question was -- let me
On Page 4.
Okay?
Okay.
14
just ask you this:
Does reading Page 4 refresh your
15
recollection regarding the incident?
16
A.
Yes, it does.
17
Q.
So, this incident involved Kasatka trying to
18
grab Ken Peters' foot and hand?
19
A.
Yes.
20
Q.
And, there was an analysis done of this
21
incident, correct?
22
A.
Correct.
23
Q.
And, one of the take-aways of this incident
24
was that you shouldn't enter the water with Kasatka when
25
there are social issues going on; social behavior is
CARLIN ASSOCIATES
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present.
A.
Is that correct?
Well, yes, it was part of the feedback that
we probably needed to take that into consideration more
about the dynamics the mother-daughter social structure.
Q.
And, that social behavior involved her calf?
A.
Yes.
Q.
And, another one of the issues that or
take-aways was that the emergency procedures were not
implemented; isn't that correct?
10
A.
No, I think --
11
Q.
They weren't implemented immediately; is that
12
correct?
13
A.
That was one of the feedbacks from the parks.
14
Q.
And, in the corrective steps to be taken on
15
Page 6, is that something that you would have written?
16
17
18
19
20
A.
It's something that I would have been a part
Q.
Who would have written the information
of.
regarding the corrective steps?

A.
At this particular level of involvement, it
21
would have been the corporate curator of animal training
22
involved in this, as well as the trainers there, not
23
just the trainers in the incident but the trainers at
24
the park would have also been involved in this.
25
Q.
So, persons that were not supervisors would
CARLIN ASSOCIATES
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have been sort of weighing in on what corrective steps
to take as a result of the incident?
A.
Yes, they would have weighed in on it.
Q.
Were you responsible for actually writing up
whatever the feedback might have been from the trainers
that were involved?
7
8
9
A.
Yes, it was my responsibility to complete the
incident report, write it, finish it and send it around.

Q.
And, this incident report looks a little
10
different than some others that I have seen.
I noticed
11
that there's a detailed analysis of Kasatka and
12
incidents that occurred at the park.
13
that you did?
14
A.
15
it, yes.
16
Q.
Is that something
In this case, this was something I added to
And, on Page 6 at the bottom where it says,
17
"Kasatka," and there's some sort of graph talking about
18
her incidents and the days between her incidents, is
19
that something that you inserted into the report?
20
A.
Yes, it is.
21
Q.
Can you tell us why you added that
22
23
information?
A.
Well, I wanted to show the excellent work
24
that the trainers had been doing; that the length of
25
time in between the incidents was, in fact, increasing,
CARLIN ASSOCIATES
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which is a good thing, that we have learned to work with
her, and the length of time between her last incident
and this one was, in fact, the highest amount of time
that is shown on that graph.
And, at the end, you can see that I commented
and let the trainers know that they had been doing a
good job.
8
9
10
11
12
13
Q.
So, despite that you were evaluating this
particular incident, you were sort of highlighting the

progress that the killer whales had made over time?
A.
And, that the trainers had made with that
that particular killer whale.

Q.
The fact that -- would you agree with me that
14
Kasatka's behavior of attempting to grab Ken Peters'
15
foot was aggressive behavior?
16
A.
I would say that her behavior of attempting
17
to grab was definitely showing a physical sign that she
18
was not comfortable with what was going on.
19
Q.
In your analysis, did you do any analysis of
20
Kasatka's aggressive tendencies at all as it related to
21
this incident?
22
A.
Well, I demonstrated on the graph that she
23
has had other incidents, so in that respect, I
24
documented them.
25
Q.
I also compared them to other whales.
And, the whales that you compared her to,
CARLIN ASSOCIATES
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1
2
3
4
5
6
they're all whales that are at Sea World San Diego?

A.
No, they're whales.
They're not all at Sea
World San Diego.

Q.
I didn't see Tilikum listed.
Were these only
water work whales?

A.
No, these are not necessarily all water work
whales because not all incidents happen in the water.
Some happen on land.
9
10
11
Q.
So, the whales that you -- how did you
identify what whales to include on your chart on Page 7?

A.
Well, on Page 7, you can see that that is the
12
number of corporate incidents for active whales.
13
that was whales that are currently actively involved in
14
our training.
15
Q.
16
Tilikum?
17
A.
18
So,
Do you know how long Sea World has had
I don't remember the actual year.
It was in
the early Nineties, I think.
19
Q.
So in 1999 Sea World had Tilikum?
20
A.
Yes.
21
Q.
So, it was your understanding that Tilikum
22
23
24
25
wasn't an active whale back in 1999?

A.
Well, he was an active whale, but he didn't
have any incidents.

Q.
That were written on corporate incident
CARLIN ASSOCIATES
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reports?
A.
Yes, these are active whales who were doing
water work at that time, and he was not an active whale
doing water work at the time of this report.
Q.
On Page 6, it's underlined:

"Therefore, we will implement a 100 percent
implementation policy.
The trainers will be
required to use the emergency call-back procedure
at least once per day in all water interactions."
10
A.
Yes, right.
11
Q.
Can you explain, what do you mean by 100
12
13
percent implementation policy?

A.
Well, this was in an effort to help the
14
trainers to become more familiar with implementing the
15
call-back as well as increasing the understanding and
16
familiarity for the whale to be able to respond to the
17
call-back.
18
Q.
So, this sort of corrective action was
19
requiring that the trainers do the call-backs during any
20
interaction?
21
A.
Yes.
I think the feeling was from feedback
22
of this particular incident, that the Sea World of
23
California trainers waited too long to implement the
24
call-back in this particular case.
25
feedback to them that from this point forward until
CARLIN ASSOCIATES
So, this was giving
(216) 226-8157
1146
further directed to implement a 100 percent call-back in
each session at least one time.
JUDGE WELSCH:
Is that still in effect now?
THE WITNESS:
No.
JUDGE WELSCH:
When did it --
THE WITNESS:
I don't remember when that
directive came off.
interacted with the whales, and then we would say,
"Okay, we no longer need to do it 100 percent of the
10
It would be evaluated as we
time."
11
We would want to keep the frequency up and
12
continue to do it, Your Honor, but not 100 percent.
13
percent is 100 percent.
14
that.
15
16
JUDGE WELSCH:
So, we eventually came off of
Did that corrective action only
apply to Sea World of San Diego and not the other parks?
17
THE WITNESS:
18
Sea World of San Diego.
19
JUDGE WELSCH:
As far as I know, this was just
So, the other parks, Orlando
20
included, did not have to institute 100 percent
21
call-back?
22
THE WITNESS:
23
24
Q.
25
100
That's correct.
And, on Page 7 of Sea World 687, it says:

"Since 1987 when we had a significant number
CARLIN ASSOCIATES
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of major killer whale incidents, we have
implemented a strong technically sound safe water
work program that has resulted in very low
numbers of incidents."
Why did you include this information in this
report?
involving Kasatka and Ken Peters, and it looks like
you're doing a very detailed, comprehensive analysis of
how you're doing.
10
11
I mean, we're talking about an incident
I mean, was this report prepared for
someone else other than Sea World?

A.
No, this was just for Sea World Shamu
12
trainers just to see the good work that they have done
13
and the number of days that increased between incidents,
14
and then also the good work that since 1987 when we
15
implemented our current approach to corporate incident
16
reports, that we have, indeed, significantly decreased
17
the number of incidents that have happened with our
18
killer whales.
19
So, this was again information sharing with
20
the trainers so they would know where the incidents were
21
at and that it would encourage them to continue with the
22
good work that they were doing.
23
24
25
Q.
Now, was water work suspended with Kasatka
after this incident?

A.
With Kasatka, yes, it was.
CARLIN ASSOCIATES
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Q.
For what period?
A.
You know, I can't give you a specific, but I
know that it was almost two years, but I can't say
exactly how long.
back and look at the records.
6
7
Q.
I don't remember.
I would have to go
If you would turn to Page 8 of the document,
the sentence that starts with "therefore."
"Therefore, it is my recommendation that
we continue water work interactions with Kasatka
10
when do we have practice our emergency call-back
11
procedures 100 percent of every water work
12
interaction for a period of time."
13
Can you explain, what does that sentence
14
mean?
15
resumed with Kasatka until she had met this 100 percent?
16
Does that mean that water work wouldn't be
A.
It just simply meant that we needed to
17
implement this 100 percent call-back approach with her
18
to make sure that she has a higher frequency of response
19
to call-backs and that the trainers utilize the
20
call-back at Sea World of California in a quicker way
21
with their judgement calls.
22
So, therefore, in the meantime, we can
23
eventually go back in the water with Kasatka but not
24
until all of these things happen.
25
Q.
So, during this two-year period that you say
CARLIN ASSOCIATES
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may be approximately two years that she wasn't
performing water work, she was then considered a dry
work killer whale?
A.
Well, yes.
Q.
Temporarily.
A.
We were just not doing water work with her.
We were still doing desensitization and other things,
but not actually getting in the water.
9
10
Q.
But, you were still able to care for Kasatka
during that period?
11
A.
(Nodding in the affirmative).
12
Q.
Is that a "yes"?
13
A.
Yes.
14
15
I mean, yes, we cared for the whale.

just need to review my notes.
16
17
Q.
Now, the incident that we just discussed with
18
Ken Peters and Kasatka, that involved Kasatka trying to
19
pull Mr. Peters' foot during 1999, and then several
20
years later in 2006, Kasatka engaged in similar but more
21
aggressive behavior with Mr. Peters; isn't that correct?
22
23
A.
In 1999, she tried to grab him in several
places.
24
Q.
Several places?
25
A.
Yes.
CARLIN ASSOCIATES
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Q.
One of which was his foot?
A.
Yes.
Q.
And, in November of 2006, Kasatka also
engaged in behavior that was more aggressive.
She
grabbed his foot and actually got the foot and took him
under water; isn't that correct?
A.
That's correct.
Q.
And, Kasatka could have killed Mr. Peters in
that interaction; isn't that correct?
But, for his
10
bravery, his calm demeanor, things could have gone bad;
11
isn't that correct?
12
A.
Anything is possible.
13
Q.
But, matched up against a killer whale, the
14
possibility was rather high that --
15
A.
No --
16
Q.
Just let me finish.
Matched up against a
17
killer whale, the likelihood of success was not high
18
when the killer whale actually had Mr. Peters' foot?
19
A.
I would not agree with that.
In fact, I
20
would say the opposite; that over the years of working
21
with animals in the water, the likelihood was actually
22
very high that everything would be fine because we have
23
done millions of interactions with the killer whales.
24
So, the likelihood would be that he would be okay, and
25
even in the low number of incidents that we have had
CARLIN ASSOCIATES
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where a killer whale have grabbed somebody, the trainers
have been okay.
statement.
Q.
So, I wouldn't agree with that
You would agree that Kasatka back in the 2006
incident, that she had Mr. Peters under water for a good
period of time?
A.
That, I would agree with.
Q.
And, the trainers who were on the ledges
instituted call-back procedures.
They were attempting
10
to get Kasatka's attention to rescue Mr. Peters; isn't
11
that correct?
12
A.
13
14
15
That's correct.
They did implement the
emergency response procedures.

Q.
And, initially, Kasatka didn't respond to
those call-back procedures; isn't that correct?
16
A.
That's correct.
17
Q.
So, Kasatka's behavior, she was sort of
18
actually reverting back to her earlier years sort of not
19
responding to the call-back.
20
sort of behavior was predictable?
21
A.
You would agree that this
No, I wouldn't agree it was predictable, no.
22
The trainers implemented using a judgement call
23
implemented it much better than they did in `99.
24
what we worked on, and the trainers did it.
25
That's
Now, whether the whales responded to what the
CARLIN ASSOCIATES
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trainers offered, that result was the same.
respond.
Q.
She did not
You would agree with me that if Kasatka
didn't want to let Mr. Peters go, she wouldn't have let
him go in the 2006 incident.
foot go?
A.
At some point, she let the foot go.
Q.
But, if she wanted to, she could have kept
ahold of him?
10
11
12
13
A.
A killer whale -- I can't tell you what the
killer whale can do.

Q.
At some point she let his
They can do whatever they want.
You don't disagree with me that a killer
whale can overpower a human?
14
A.
No, I wouldn't disagree with that.
15
Q.
As a result of the 2006 incident with Kasatka
16
and Ken Peters, Kasatka became a dry work killer whale;
17
isn't that correct?
18
A.
That's correct.
19
Q.
And, she has returned to water work; isn't
20
that correct?
21
A.
That's correct.
22
Q.
Can you tell us what about the incident
23
caused you to make that decision?
24
first back up.
25
would be a dry work whale?
Well, let me just
Did you make the decision that Kasatka
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A.
I weighed in with other professionals at Sea
World to make that decision; but, ultimately, I have a
strong opinion of that and it weighs strong, but I don't
have the actual final decision on that.
corporate decision.
that I would not go back in the water with her at this
point.
Q.
that opinion?
10
A.
That's a
But, yes, I weighed in strongly
What about the incident caused you to have
The intensity that Kasatka displayed toward
11
Ken Peters while she had him under water, and the fact
12
that she would not let his foot go and that she kept his
13
foot in her mouth to me was a little different than what
14
I had seen from her in the past.
15
Q.
So, the intensity of the interaction?
16
A.
The intensity and the duration were both more
17
18
than what we had seen in the past.

Q.
As a result of the November 2006 incident,
19
did you make or did Sea World of San Diego make any
20
other changes aside from not working with Kasatka as a
21
water work animal?
22
A.
I don't recall any.
23
Q.
So, was it your position that this was an
24
25
isolated incident with Kasatka and Mr. Peters?

A.
Well, each incident is individual with the
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animals.
Kasatka we would stay out of the water.
3
4
Q.
So, yes, I think we made that choice that with
So, you made no other changes as it relates
to interacting with your other whales?
A.
I do not recall us making any other changes.
Q.
In November of 2006, did you make a
determination at Sea World of San Diego to go dry with
any other whales?
9
10
A.
Yes, I think I did.
I think I decided to
stay out of the water with Orkid and Ulises also.
11
Q.
Can you tell us why you made that decision?
12
A.
Just precautionary for everybody to evaluate
13
the Kasatka situation, the incident; you know,
14
understand the lessons learned and see if we want to
15
make any changes.
16
17
JUDGE WELSCH:
names?
18
19
THE WITNESS:
24
25
JUDGE WELSCH:
Are they still dry work whales
THE WITNESS:
Well, all the whales are dry
JUDGE WELSCH:
Up to December of 2009, were they
now?
22
23
Orkid and Ulises, and that's to
the best of my recollection, Your Honor.
20
21
What were the other two whales'
work.
still in dry work?
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THE WITNESS:
I think they were.
JUDGE WELSCH:
So, you had three of your whales
in dry work, and how many whales did you have in San
Diego?
5
6
THE WITNESS:
I think at that time, we had
seven.
JUDGE WELSCH:
Almost half.
Q.
Okay.
Now, you said as a precautionary measure, it
10
was determined that Orkid and Ulises could not do water
11
work.
12
Kasatka incident?
Was that decision made in conjunction with the
13
A.
Kasatka's incident played a role in it, yes.
14
Q.
And, what about the Kasatka incident caused
15
16
you to make that determination about the other whales?

A.
It was just that the length, the duration was
17
really the driving factor.
18
duration were the two driving factors.
19
JUDGE WELSCH:
The intensity and the
But, you must have seen some
20
comparison with Kasatka and those other two whales.
21
other two whales have some similar background and
22
behaviors that you compared?
23
THE WITNESS:
The
Well, I think in our opinion with
24
Orkid, it was that Orkid had had the highest number of
25
incidents in San Diego.
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So, I felt it would just be best to be more
conservative in our approach with her, and Ulises, he
was the newest whale to us.
male that we have.
felt that we should just kind of take a very cautious,
careful approach until we understand more fully the
situation, and then we would decide what approach we
would take in moving forward.
9
10
He's the largest, biggest
We are in the water with him.
So, I
Q.
Did you make any adjustments to your
11
emergency procedures as a result of the Ken Peters-
12
Kasatka incident?
13
A.
I don't think we did.
I think we actually
14
said that the emergency procedures worked very well.
15
don't recall that we made any changes.
16
17
Q.
Do you know if any of the other Sea World
Parks made any changes to their emergency procedures?
18
A.
No, I don't know.
19
Q.
And, an incident report was created as a
20
result of the Ken Peters-Kasatka incident, correct?
21
A.
Correct.
22
Q.
And, could I just have you briefly look at
23
24
25
Sea World 1372 through 1375?

JUDGE WELSCH:
For the record, we're still on
Exhibit C-6?
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1
2
Still on Exhibit C-6,
actually the last page.
Q.
Can you identify that document for the
record?
Is that a corporate incident report created by
Sea World of California?
A.
Yes, it is.
Q.
And, that's the incident we have been
discussing involving Ken Peters and Kasatka?
10
A.
Yes, it is.
11
Q.
The date of the incident is 11/29/2006?
12
A.
That's correct.
13
Q.
Can you turn for me to the last Page Number 5
14
where it says, "Other park curator comments"?
15
A.
Okay.
16
Q.
Actually, before we go there, the first
17
portion of that page says what corrective steps have
18
been taken, and the last sentence, can you read the last
19
sentence where it starts with "we"?
20
21
A.
"We will review all aspects of this incident
and make adjustments to our behavioral
22
techniques and emergency response plan as
23
necessary."
24
25
Q.
And, do you know if any of those adjustments
were made?
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A.
I do not know of any.
I think the response
plans were decided that they were appropriately
implemented, and I don't think we made any changes at
that time.
Q.
And, the behavioral techniques, do you know
what that was in reference to?
adjustments to our behavioral techniques"?
8
9
MS. GUNNIN:
It says, "make
Judge, there's been no foundation
that Mr. Scarpuzzi wrote this section of the report.
10
His testimony is actually he was not writing the reports
11
at this time, since he had moved to a different role,
12
and Mr. Garver was the one responsible.
13
JUDGE WELSCH:
I thought the question, though,
14
was were there any changes made as a result of that
15
report.
16
17
MS. GUNNIN:
18
19
20
21
22
Well, I think she's asked about --
he read the sentence and she asked -JUDGE WELSCH:

another question.
THE WITNESS:
But, I think she went on to
Overruled.
Go ahead.
Sorry, repeat the question,
please.
23
24
Q.
25
Exactly, Your Honor.
The question was whether you knew of what
behavioral techniques needed to be adjusted as a result
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of this incident?
A.
Yes.
And, again, there could have been
behavioral adjustments, but I'm not aware of any
behavioral adjustments made with this.
Q.
So, Sea World of Florida in the next section
says that they will evaluate their current emergency
response plan.
adjustments to their emergency response plan as well?
A.
You don't know whether they made any
No, as they said here, they commend our
10
emergency response plan, they would look at theirs, and
11
I'm not aware that they made any adjustments to theirs.
12
13
Q.
So, other than taking Kasatka out of water
work, there were no other adjustments that you know of?
14
A.
That's correct.
15
Q.
So, you're aware that we're here in this case
16
involving the death of Dawn Brancheau?
17
A.
Yes, I am.
18
Q.
And, that incident occurred on February 24,
20
A.
Correct.
21
Q.
And, what is your understanding of the
19
2010?
22
incident involving Tilikum and Ms. Brancheau?
23
you know about what occurred?
24
A.
Well, I know what occurred.
25
Q.
What is it that you know?
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What do
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1
2
A.
I just know that Tilikum pulled her in and
let her back out.
Q.
And, as a result of that situation, Sea World
of San Diego is not allowing its trainers to do water
work at its park; is that correct?
A.
Q.
And, who made the determination that Sea
World animal trainers in San Diego would not do water
work?
10
A.
11
JUDGE WELSCH:
12
13
That would be corporate.

Corporate meaning the parent
company?
THE WITNESS:
Yes, corporate zoological,
14
corporate -- I'm sure that there was -- I'm not exactly
15
sure who made the final decision because it wasn't me
16
that did that.
17
stay out of the water with all of our animals until
18
further notice.
I was just communicated to that we would
19
20
Q.
Now, when you learned of the incident
21
involving Tilikum and Ms. Brancheau, did you make the
22
initial decision to pull the animal trainers out of the
23
water in San Diego, or was that a corporate decision?
24
A.
Yes, that was a corporate decision.
25
JUDGE WELSCH:
Let's take our afternoon break.
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Let's be back at ten minutes after three.
adjourned.
JUDGE WELSCH:
you're still under oath.
Mr. Scarpuzzi, I remind you
Q.
We're
Mr. Scarpuzzi, hello again.

I think when we left, we were talking about
10
Sea World of San Diego had gone dry on the Dawn
11
Brancheau incident, and your testimony was that that was
12
a corporate decision; is that correct?
13
A.
Yes.
14
Q.
At the time on February 24, 2010, three of
15
your whales were already dry, correct?
16
A.
That's correct.
17
Q.
And, you were able to take care of those
18
whales appropriately.
You didn't have any problems
19
caring for those whales, did you?
20
A.
No, not caring for them.
21
Q.
And, you haven't had any trouble caring for
22
the whales since that time, have you?
23
A.
No.
24
Q.
We've talked a lot about different incident
25
reports, that Sea World created an incident report.
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Did
1162
you participate at all in an incident report relating to
the Dawn Brancheau incident?
A.
No, I didn't.
Q.
Do you know if an incident report was
created?
A.
There has not been an incident report for the
Dawn Brancheau incident to my knowledge.
Q.
been created?
10
11
A.
Do you know why an incident report hasn't
Well, they did a much more thorough, complete
exhaustive review of the incident.
12
Q.
When you say "they," who do you mean?
13
A.
Sea World.
14
Q.
And how --
15
JUDGE WELSCH:
16
Sea World of Orlando or Sea
World, the corporate?
17
THE WITNESS:
The parent corporation, yes.
18
19
Q.
20
do that?
21
A.
When you say a thorough review, how did they
Well, they had an internal investigation team
22
that reviewed the incident.
23
investigation team that reviewed the incident.
24
25
Q.
They had an outside
And, the internal investigation team, who was
that comprised of?
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MS. GUNNIN:
question.
about the components of an internal or external review.
A lot of this has been done under attorney-client
privilege, and I think that the Secretary's Counsel
would be going into the attorney-client privilege by
asking about the incident.
8
9
There is no basis for asking Mr. Scarpuzzi
JUDGE WELSCH:
Right now, she's just asking who
was on the team if he knows.
10
11
JUDGE WELSCH:
12
attorney-client.
13
renew your objection.
14
Go ahead.
15
THE WITNESS:
Yes.
I don't think we've gotten into
If he gets into that area, you can
Do you know who was on the team?

Yes.
It was Terry Prather,
16
Donnie Mills, Chuck Tompkins, Steve Able and Julie
17
Scarpena (ph).
18
19
Q.
20
person?
Could you spell the last name of the first

Terry who?
21
A.
Prather, P-r-a-t-h-e-r, I think.
22
Q.
And, you said Steve Able was also a member of
23
that team?
24
A.
Yes.
25
Q.
Do you know if that team created a report?
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A.
Yes, they did.
Q.
And, in the report, did the team draw any
conclusions regarding what occurred on that day?
A.
I'm not aware of that conclusion.
Q.
Were any recommendations made as a result of
the internal investigation team?
A.
Yes, there were recommendations made.
Q.
And, what were those recommendations?
A.
There were many for me to recall them here at
10
this point.
11
12
Q.
I mean, there were --
Did any of the recommendations require you at
Sea World at San Diego to implement any new procedures?
13
A.
Yes.
14
Q.
And, what procedures did you implement as a
15
result of that team's recommendations?
16
A.
Well, we're still in the process of
17
implementing some of those recommendations from the
18
team.
19
boxes to air units for the trainers to stay back so many
20
feet from the pool, to bars that are there in place if
21
you want to touch the animals.
22
can't remember exactly how many recommendations, but
23
there was quite a bit, and we were part of like any
24
other Sea World in the process of putting those
25
suggestions and recommendations in process.
So, there were a lot of them from, you know, net
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There were, I think -- I
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1165
Q.
When you say, "putting them in process," they
were recommendations, but did you as Sea World of San
Diego have to accept all of the recommendations?
A.
No, there wasn't any acceptance.
It wasn't a
accepting or rejecting of recommendations.
Company's internal investigation, and here are their
recommendations, and this is where we're moving forward.
8
9
10
11
Q.
It was the
So, those recommendations were actually
directions to the different parks to implement different

procedures?
A.
The recommendations to work on.
Everybody
12
then could be -- part of process of discussing those
13
recommendations and working together as a corporation to
14
implement as appropriate.
15
16
Q.
Do you recall when you received the
recommendation report?
17
A.
18
was in August.
19
Q.
Would that have been of 2010?
20
A.
Yes.
21
Q.
Have you implemented any of the
22
To the best of my recollection, I think it
recommendations at Sea World of San Diego?
23
A.
Yes.
24
Q.
What are they?
25
A.
Well, we have implemented using the removable
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bars, staying back from the whales three feet, only
touching them once the bars are in place, there's the
five-foot safety line that was implemented.
the ones that come to the top of my mind, and we stayed
out the water?
Q.
You mentioned removable bars.
A.
They are just like steel bars that you can
Those are
What is that?
actually pick up and put in place on the stage area or
perimeter of the pool, and you can put them in place.
10
If you want to actually touch the whales, you can put
11
the bars in place.
12
stay back, you can remove them.
13
14
15
JUDGE WELSCH:
THE WITNESS:
the facility.
17
areas.
19
20
If you want to
Would that be on those slide-
outs?
16
18
You can remove them.
It's in various places all around
So, you have slide-out, stage, back
JUDGE WELSCH:
Removable bars meaning you can
just pick them up and move them?

THE WITNESS:
It's very easy for a trainer to
21
remove them, pick them up, put them on a rack if you're
22
not going to use them.
23
24
Q.
25
Are trainers using the removable bars in all
of their show performances?
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A.
It's the trainer's choice as to when they
want to use the bars.
They're there for them if they
want to.
Q.
What is the purpose of the removable bars?
A.
Well, the bar is there.
If you want to touch
the animal, then you have to put the bar in place, and
then you're able to actually physically touch the
animal.
If you don't want to physically touch the
10
animal, you don't need the bars.
11
back and interact with the whales without touching them.
12
13
JUDGE WELSCH:
You can stay X feet
Is that the three-foot rule?
You
said something about staying back three feet?
14
THE WITNESS:
Stay back, yes, three feet.
15
JUDGE WELSCH:
So, if they don't use the bar,
16
they could stay back three feet?
17
THE WITNESS:
That's correct.
18
JUDGE WELSCH:
If they want to touch the animal,
19
the whale, they have to use the bars?
20
21
THE WITNESS:
They have to put the bar in
place.
22
23
Q.
So, are these bars put in place to protect
24
the trainers from falling in or being pulled into the
25
pool?
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A.
No, I don't think the bars are put in place
to protect the trainer from being pulled into the water,
no.
4
5
6
7
Q.
They are to protect the trainers from falling
in or slipping in?
A.
No, I don't think they're there to protect
the trainers from falling in or slipping in.
Q.
What is the purpose?
A.
I'm not really sure, other than they have
10
11
been directed to use them.

Q.
Wouldn't it seem reasonable that the bars
12
that you're being asked to use, the bar is to protect
13
the trainers from slipping in or falling into the water?
14
A.
No, it actually seemed very unreasonable
15
because the trainers have worked with these whales for
16
almost 50 years and have not been -- slipping into the
17
water is not a common occurrence.
18
they're at at all times, they know how close to the
19
water they are, and they're able to walk around without
20
slipping and falling into the water without bars.
21
Q.
They know where
When you say the trainers have been working
22
with the whales for 50 years, you mean Sea World has
23
experience in training killer whales; not that the
24
specific trainers have actually worked --
25
A.
That's correct, yes.
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Q.
When you received this recommendation report,
were there any discussions regarding what was high
priority and the why behind these recommendations?
A.
There was nothing given a higher priority.
They were all recommendations from the internal
investigation team, and they were all the same level of
priority.
priority.
9
10
Q.
There was not one that was given high
And, this recommendation report was given to
all the Sea World Parks?
11
A.
Yes, it was.
12
Q.
Are there any recommendations that were
13
included in the report that you tried to implement but
14
were unable to?
15
A.
Well, there are still some recommendations
16
that are in the process of being implemented, and that
17
are not complete yet.
18
19
20
Q.
And, what is that process and what hasn't
been completed?
A.
Well, for example, the net release boxes are
21
in the process of being designed.
This is the first of
22
their kind, and it takes engineering, and we're in the
23
process of getting these net release boxes designed
24
properly.
25
some net release boxes in California, but they still
So, they are in the middle of it.
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We have
1170
1
2
3
4
have to tweak them.

Q.
They're not quite done yet.
Now, this design of the net release boxes is
going to be used for all the Sea World Parks?

A.
Well, each park being because they are
different in their design, yes.
to be used in all three of the Sea World Parks, yes.
7
8
Q.
So, a similar design is
Are there any other recommendations that are
sort of in process?
A.
Yes.
10
Q.
What are they?
11
A.
Well, there's the lifting floors that are in
12
process.
13
groundbreaking, one-of-a-kind, never-been-designed
14
recommendation that is not complete yet.
15
16
Q.
They're not finished yet.
So, that's another
Has that work started at Sea World of San
Diego, the lifting floor construction?
17
A.
I would have to say, yes, it has started.
18
JUDGE WELSCH:
What is the lifting floor?
19
THE WITNESS:
It's like a false bottom of the
20
pool that air lifts up the false bottom so that instead
21
of draining the water out of the pool, you can bring the
22
floor up.
23
pool which would be many, many hours, a lifting floor
24
could be brought up in theoretically a few minutes.
25
Instead of the time that it takes to drain a
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1
2
Q.
And, where is this lifting floor being
created at Sea World of San Diego?
A.
are the lines.
I'm saying the work has started.
just some of the air lines.
7
8
9
Q.
Actually, the only thing that's been put in

Some of that is being done.
That's why
It's very, very basic;
Do you know at which pool area will actually
have the lifting floors?

A.
That decision has not been made to my
10
knowledge yet.
The lines are being laid in, and we have
11
not made a decision that I know of as to which pool the
12
lifting floor will go in.
13
to that.
14
Q.
Is there any recommendation that you recall
15
that's in process?
16
and the lifting floors.
17
A.
So, I don't know the answer
We're talking about the net release
Yes, the spare air is another recommendation
18
that is in process, that is being designed and it's not
19
completed yet.
20
Q.
What is the purpose of the spare air?
21
A.
To provide a trainer with the opportunity to
22
23
24
25
have air while they're under water.

Q.
And, when you say it's being designed, what
do you mean by that?

A.
Who is designing it?
I actually don't know who is designing it.
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1
2
3
4
5
can't recall the company.

Q.
Is that a contract that Sea World of San
Diego entered into, or is that a corporate contract?

A.
That would be something that corporate is
doing.
Q.
Any other recommendations in progress?
A.
To my knowledge, that's all I can think of
8
9
right now.
Q.
And, I just want to be clear.
Is there any
10
recommendation that Sea World of San Diego has attempted
11
to implement but could not implement it for some reason
12
of the recommendations that you have received in this
13
report in August of 2010?
14
A.
Not that I'm aware of.
15
Q.
These recommendations came to you as a result
16
of the February 24, 2010, incident that occurred at Sea
17
World of Florida?
18
A.
19
20
That's correct.
Your Honor, I don't have
any other questions.
21
JUDGE WELSCH:
Ms. Gunnin?
22
MS. GUNNIN:
Judge, I don't have any questions
23
of this witness.
24
JUDGE WELSCH:
Is he excused?
25
MS. GUNNIN:
Yes, Your Honor.
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1
2
3
JUDGE WELSCH:
I do want to ask one or two
questions.
You used the terms "primary" and "secondary
reinforcers."
mean by a primary reinforcer?
6
7
8
9
Can you give me an example of what you
THE WITNESS:
Primary is something that you
need to live, like food, water, sex.

A secondary reinforcement is something that you
don't need it to actually live, but it is a positive
10
experience, like rub-downs, toys, eating ice or Jello.
11
So, that would be something that's a secondary
12
reinforcer.
13
JUDGE WELSCH:
And, so the incident that was in
14
`99 involving Mr. Peters -- this is that Loro Parque
15
incident -- when you talk about the trainer, you wanted
16
to reinforce more primary reinforcers with the whales.
17
Also, you wanted to keep the secondary reinforcers, and
18
you want to keep that applied for all the whales in your
19
training?
20
THE WITNESS:
Yes, Your Honor.
It's important
21
to keep a good balance and to make sure that you are
22
being as unpredictable as you can so the animal is very
23
willing to accept both primary and secondary
24
reinforcers.
25
JUDGE WELSCH:
But, the trainer at the time of
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that incident was only using secondary reinforcers, and
that was part of the problem or one aspect of the total
problem?
THE WITNESS:
Yes, Your Honor, one aspect.
Yet, a choice of a trainer to do a session without using
primary reinforces is not abnormal, and in and of itself
is something that we do.
JUDGE WELSCH:
Now, he's excused as a witness?
10
Yes, Your Honor.
11
JUDGE WELSCH:
Mr. Black?
12
MR. BLACK:
Fine, other than, again, if
13
potentially something were to be put on in their case
14
where we would need to call him in rebuttal.
15
want him to stay here in Orlando, but we might ask that
16
the record be left open.
17
JUDGE WELSCH:
18
19
with other persons who may called later as witnesses in
20
this case.
21
22
23
24
25
You're excused, sir.
We don't
Thank you.
(Witness Excused)
JUDGE WELSCH:
wished to call their next witness?

MR. BLACK:
Yes, Your Honor, the Secretary calls
Mr. Brian Rokeach.
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---o0o---
BRIAN E. ROKEACH,
JUDGE WELSCH:
Sir, for the record, would you state your full
name, spell your last name and state your address,
please?
THE WITNESS:
My name is Brian Eric Rokeach,
10
R-o-k-e-a-c-h.
My address is 1739 Thomas Avenue,
11
Apartment 6, San Diego, California 92109.
12
JUDGE WELSCH:
13
MR. BLACK:
Thank you, Judge.
14
---o0o---
15
DIRECT EXAMINATION
16
BY MR. BLACK:
17
Q.
Mr. Rokeach, good afternoon.
18
A.
Good.
19
Q.
What is your position at Sea World of
20
21
22
How are you?
California?
A.
Right now, I'm supervisor of animal training
at Dolphin Stadium.
23
Q.
And, when did you begin that position?
24
A.
I believe it was September 12th.
25
Q.
Of 2011?
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A.
I'm sorry, of 2011.
Q.
Prior to that, what was your position at Sea
World?
A.
I was a supervisor of animal training, one of
the supervisors of animal training at Shamu Stadium in
San Diego.
Q.
How long were you in that position?
A.
Most recently, I was there from May of 2010
until I moved to Dolphin Stadium, and prior to that, I
10
was promoted prior to moving to Loro Parque, so I
11
believe it was April of 2008 until August of 2008.
12
13
Q.
Does that mean from August of 2008 until May
of 2010, you were at Loro Parque?
14
A.
15
Q.
You were still employed by Sea World at that
17
A.
Yes, I was.
18
Q.
And, were you in the same position, that is,
16
time?
19
supervisor of animal training of Sea World, even though
20
you were stationed at Loro Parque?
21
22
A.
I believe my title at the time was supervisor
of animal training, Sea World California.
23
Q.
Sea World California?
24
A.
Correct.
25
Q.
I'm sorry, thank you.
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1
2
And before you were promoted in April of

2008, what was your position with Sea World?
A.
I was a Senior Trainer 1.
Q.
And, when did you become a Senior Trainer 1?
A.
I don't recall the exact date.
Q.
Give me your best.
A.
I really don't have -- I'm sure there's
paperwork of=n it, but I don't know the --
Q.
Several years or --
10
A.
Several years.
11
Q.
Were you just a senior trainer before
12
becoming a Senior 1?
13
A.
Correct.
14
Q.
And, when, roughly, did you become a senior
15
trainer?
16
A.
17
That was roughly probably January of 2004, in
that area; but, again, I'm not exactly sure.
18
Q.
Give or take?
19
A.
Yes.
20
Q.
And, were all of those senior trainer and
21
than Senior Trainer 1 positions at Sea World of
22
California Shamu Stadium?
23
A.
I was promoted to senior trainer at Dolphin
24
Stadium in Florida, and I was promoted to Senior Trainer
25
1 at Shamu Stadium in Sea World San Diego.
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Q.
How long did you work as the senior trainer
at Dolphin Stadium in Florida?
leave?
Roughly, when did you
A.
Oh, well, I left in May of 2004.
Q.
So, from January until May of 2004?
A.
Roughly, yes.
Q.
And when you went to California, that was as
a senior trainer?
A.
Correct.
10
Q.
And, did you go straight to Shamu Stadium?
11
A.
Yes.
12
Q.
Before January 2004 and becoming a senior
13
trainer of Dolphin Stadium, did you have a position at
14
Sea World?
15
A.
I'm sorry, I don't understand the question.
16
Q.
Sure.
17
Did you work for Sea World before you
became a senior trainer at Dolphin Stadium?
18
A.
Yes.
19
Q.
What position and when did you start?
20
A.
I followed the regular path of promotion, so
21
before senior trainer, I was at trainer level at Dolphin
22
Stadium in Sea World of Orlando.
23
Q.
And, when did you start that?
24
A.
I started at Dolphin Stadium in January of
25
2002.
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1
2
Q.
Did you work for Sea World of Florida or Sea
World of Orlando before January of 2002?
A.
to that.
Q.
How long were you there?
A.
I was there from March of 2000 through July
of 2001.
Q.
I worked for Discovery Cove in Orlando prior
I guess there's a little gap between July of
2001 and when you started at Dolphin in 2002?
10
A.
Correct.
11
Q.
Were you employed by Sea World during that
12
period or not?
13
A.
No.
14
Q.
And, I want to focus on your period as -- I
15
guess at the time you were a senior trainer at Shamu
16
Stadium, so that would have been May 2004 in California;
17
is that correct?
18
A.
Correct.
19
Q.
And, what were your duties, just briefly, as
20
21
a trainer, as a senior trainer, a Senior 1 trainer?

A.
My duties at Shamu Stadium were training the
22
animals, assisting with any additional duties we had in
23
the area so that could be husbandry with the animals,
24
food prep, cleaning, performances, any kind of guest
25
interactions that we may have been doing at the time,
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Trainer for a Day, Dine With Shamu, and then all the
trainers are given different tasks, administrative tasks
to help the area out as well.
Q.
And, in your animal training duties, you
applied the Sea World protocols for how you were to go
about animal training?
A.
Yes.
Q.
And, that included the standard operating
procedures for animal trainers?
10
A.
Yes.
11
Q.
As well as I guess the Shamu Stadium manual?
12
A.
Yes.
13
Q.
What other written materials did you apply in
14
15
your job as a senior trainer or Senior 1 trainer?

A.
As far as immediate written materials, we had
16
available the marine mammal safety guidelines of Sea
17
World, and then like I said, anything that applied for
18
the Shamu safety manual.
19
Q.
Do you recall specifically any other
20
documents that contained rules that you had to follow as
21
an animal trainer in working with the whales?
22
A.
I don't recall specifically.
23
Q.
When you said the marine mammal training
24
25
manual, is that sometimes referred to as the SOP's?

A.
The marine mammal training guidelines
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basically are a compilation of all of the standard
operating procedures that we use in the training.
3
4
Q.
And, I'm sorry, I said SOP's.
Standard
operating procedures you understand are SOP's?
A.
Yes, I understand.
Q.
Then, you mentioned at Loro Parque for the
nearly two years that you were there, what were your
duties at Loro Parque?
A.
I was there to oversee the animals' care to
10
make sure that they were being taken care of
11
appropriately, as a liaison between Sea World and Loro
12
Parque, basically, eyes on site, and also assisted with
13
daily husbandry, assisting in mentoring their trainers,
14
making sure that the water quality was at the
15
appropriate levels that we require for our animals,
16
making sure that the fish quality was up to our
17
standards, addressing any concerns that we might have
18
that the animals are being taken care of in the manner
19
that we find appropriate.
20
21
22
23
Q.
And, part of taking care of them would be how
they are worked with by trainers, right?

A.
I want to make sure that the trainers are
appropriately taking care of them, yes.
24
Q.
That they're training them properly?
25
A.
Well, they are being trained, yes, but
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they're also being just managed appropriately as well.
So, there are training aspects of it, but we also want
to make sure that they're being properly cared for.
Training does have a -- there is an aspect of training
in that, per se, but we also want to make sure that
they're being properly cared for.
7
8
Q.
caring for the animals?
9
10
11
12
13
And, is animal husbandry another term for
A.
Animal husbandry is something that we do,
Q.
Do you have other areas or topics that you
yes.
consider under the proper care for the whales?

A.
Like I said, just make sure their food
14
quality is appropriate, that the water quality is
15
appropriate, that the facility is being maintained
16
appropriately and maintain our standards.
17
18
Q.
Things in the animal environment, making sure
they're up to snuff?
19
A.
Exactly.
20
Q.
And, how is that animal training related to
21
-- strike that -- that animal trainers are having the
22
whales perform certain behaviors or do certain things,
23
right?
24
25
A.
Yes, we ask animals to do different behaviors
that have been trained.
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Q.
How does that relate to the care of the
whale, if you will?
be cared for, but how does what behaviors they do with
the animals relate to whether they are receiving
appropriate care or not?
A.
Not are they training the whales to
Well, there are certain standards that we
like to maintain.
We want to be able to take voluntary
blood samples, actually any type of voluntary samples
from the animals, and that can be fecal samples, urinary
10
samples, blow hole cultures, if there's any type of a
11
skin sample.
12
are comfortable being close to the trainers, and then we
13
actually do train certain husbandry behaviors in order
14
to receive these samples or to take these samples.
15
Q.
16
So, we have to make sure that the animals
I can see my question wasn't very clear.

I meant, what is it about how the animals are
17
working in shows, for example?
What is it that you are
18
trying to make sure of in being the eyes on site that
19
Loro Parque does with the animals during shows, for
20
example?
21
A.
During shows, during sessions, whatever it is
22
that we do, that they're applying appropriate principles
23
to properly take care of the animals, properly reward or
24
reinforce the animals, that they're not doing anything
25
that's going to create a situation that could be
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dangerous because they're inappropriately interacting
with them.
Q.
Are you finished?
A.
Yes.
Q.
And applying the appropriate principles to
prevent dangers, is that danger to the trainers as well
as the animals?
A.
It can be, yes.
Q.
Well, was your responsibility to make sure
10
that the Loro Parque trainers were working with the
11
animals in such a way that the Loro Parque trainers were
12
keeping safe?
13
A.
I was watching, I was observing sessions, I
14
was participating with them, and I did want to make sure
15
that they were interacting appropriately when I was
16
there.
I wasn't always there, though, as well.
17
They also had been trained by both their
18
staff and prior to my arrival to interact with these
19
whales, using the operant conditioning principles that
20
we apply at Sea World.
21
Q.
So, Loro Parque was trying to apply positive
22
reinforcement training to the animals in the same way
23
that Sea World of California or Sea World of Florida
24
would apply those principles with the killer whales?
25
A.
Yes.
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Q.
And, the Sea World whales that were at Loro
Parque, those have been at Loro Parque since around
2006?
A.
February of 2006.
Q.
Now, Sea World still owns those whales?
A.
I'm not familiar with the contracts.
Q.
They owned those whales at the time that you
8
9
were there, right?

A.
Again, I'm not familiar with the particulars
10
of the contracts.
My understanding was that they were
11
on breeding loan, but I don't know any particulars about
12
the contracts.
13
Q.
What would be the purpose of your being the
14
eyes on site if Sea World didn't have an interest or
15
ownership in those whales?
16
A.
It sounds like a reasonable question, but
17
like I said, I'm not familiar with the particulars of
18
the contracts.
19
Q.
Now, the trainers at Loro Parque, they follow
20
certain standard operating procedures in their animal
21
training?
22
A.
Yes.
23
Q.
Similar to the kinds of standard operating
24
procedures for animal training that the Sea World
25
trainers back in the States would follow?
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A.
Yes.
Q.
I mean, there might be some differences, but
the principles were to have this relationship, positive
relationship, operant conditioning type of animal
training used?
A.
Yes.
Q.
And, Loro Parque also created incident
reports if there was an incident with the whales there
at Loro Parque?
10
11
12
A.
In the event that something occurred, they
did write up a report, yes.

Q.
The same type that Sea World here in the
13
States would create incident reports if something were
14
to occur?
15
A.
They emulated similar reports, using a
16
similar form.
17
Q.
In fact, they used the same template or
18
whatever, if you will, as Sea World's corporate
19
incidents?
20
A.
Yes.
21
Q.
I want to come back to your time here in the
22
States for a minute and talk about some things like
23
that; about your time in the States.
24
25
Sea World of California owns a killer whale

named Orkid?
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A.
Yes.
Q.
And they still own Orkid today, right?
A.
Yes.
Q.
And Orkid is a she; it's a female?
A.
Right.
Q.
And, you're familiar, of course, with the
term, "incident," as used by Sea World?
A.
Yes.
Q.
And, incidents, it notes, unwanted behavior
10
by the whales?
11
A.
Yes.
12
Q.
That is behavior that Sea World doesn't want?
13
A.
Undesirable behavior.
14
Q.
Undesirable behavior, okay.
And, you agree
15
that behavior -- it also would note behavior that is
16
unpredicted; that is, behavior when something abnormal
17
happens?
18
A.
19
20
21
If it's an undesirable behavior, regardless
of where it stems from, an undesirable behavior.

Q.
Now, you, in fact, have worked with the
killer whale, Orkid, before?
22
A.
Yes.
23
Q.
And, before you went to Loro Parque in August
24
25
of 2008, you were on Orkid's team of trainers?

A.
No.
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1
2
Q.
At some point you were on Orkid's team of
trainers?
A.
No, never.
Q.
And, are you familiar with Orkid?
A.
I'm familiar with her as one of the members
of our group.
Q.
I'm familiar with her behaviorally, yes.
And, as a senior trainer at Sea World of
California or Sea World of San Diego, before going to
Loro Parque, you would have been familiar with her
10
11
behavior by reviewing her behavioral profile?

A.
Behavioral profile plus I worked in the area
12
every day, so I was around the area, around all the
13
animals.
14
there are times where every training interacts with all
15
the whales, whether it's for husbandry in the mornings
16
or control during their separation of the whales, but I
17
was just never on her team; I was never one or her team
18
members.
19
Q.
20
Trainers discuss everything about them, and
And, back prior to August of 2008, how many
killer whales were there at Sea World San Diego?
21
A.
I believe at the time we had seven.
22
Q.
So, she was one of seven whales?
23
A.
Correct.
24
Q.
Others would include Kasatka, Ulises?
25
A.
Yes.
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Q.
Corky?
A.
Yes.
Q.
Tuar?
A.
No, not Tuar.
Q.
How about Nakai or something like that?
A.
Yes.
Q.
Do you remember the other --
A.
Kolea and Sumar.
Q.
And, you were pretty familiar with the
10
behavioral characteristics of all of those whales?
11
A.
Yes.
12
Q.
What was the basis for your familiarity
13
14
Some more than others; but, yes.
besides being around them every day?

A.
Well, again, their behavioral profiles,
15
talking with the trainers, watching sessions, the
16
animals whose teams I was on, working with them daily
17
throughout the day, any kind of written information
18
about each animal.
19
20
Q.
And, that written information about each
animal would include incident reports?
21
A.
If there were any, yes.
22
Q.
And, as a senior trainer working with or near
23
animals in San Diego, you would want to have reviewed
24
the incident reports pertaining to San Diego animals?
25
A.
Yes.
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1
2
Q.
And, in fact, there are, what, a hundred or
so incident reports corporatewide?
A.
I don't know.
Q.
Have you reviewed them all at some point in
I don't remember.
your career?
A.
No.
Q.
Now, Orkid, although you weren't on her team,
you did know that she had been involved in a number of
incidents prior to your going to Loro Parque?
10
A.
Yes.
11
Q.
In fact, you knew that she had been involved
12
13
in the most incidents of any of the whales at San Diego?

A.
I don't know that.
14
accurate; I'm not sure.
I know exactly the number, but
15
I wouldn't say definitively that she had the most, more
16
at that time.
17
Q.
You would have as a senior trainer or Senior
18
Trainer 1, you would have access to all the incident
19
reports kept at the park, right?
20
A.
Yes.
21
Q.
And, that should include all the incident
22
reports that Sea World has created for its killer
23
whales?
24
A.
At Sea World San Diego.
25
Q.
Well, okay, are you saying it doesn't include
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1
2
3
4
5
6
incident reports for whales not at Sea World San Diego?

A.
I'm saying I've only reviewed incident
reports of the animals that I've worked with.

Q.
Do you mean you have not ever reviewed an
incident report for Orkid?

A.
No.
I have worked with Orkid, I said that
before.
team, and all the animals who are in the care of a
particular park I've been in, I have reviewed all of
10
those incident reports, and anything generated since
11
I've been a trainer with killer whales, but I have not
12
reviewed all of the incident reports ever generated by
13
Sea World.
14
15
Q.
I just wasn't on her
And, forgive me for not understanding you.
You have corrected some of my misperceptions.
16
17
I've worked with her.
So, if you're not on the team, how is it that

you worked with a particular whale?
18
A.
19
animals.
20
20 trainers working in the area, and every trainer
21
doesn't work every whale all of the time.
22
Teams are designated essentially to focus on

We have, typically since I've been there 18 to
We're all able to do certain things with
23
them, like I said before, separations with them, morning
24
husbandry or just feeding them.
25
but we like to focus on certain animals so that we can
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build a very strong relationship, know exactly what each
of those whales are doing.
Also, to limit the number of people working
on particular behaviors so that they're not just
inundated with 20 different people with 20 different
types of criteria.
behavior, it's a small group of people doing so.
But, when we're training new
So, within that group of 18 to 20 trainers,
everybody is assigned a certain number of whale teams.
10
Newer trainers are usually given maybe one or two;
11
whereas, more experienced trainers work on more animal
12
teams.
13
Q.
Now, of course, you understand that having
14
read incident reports, you know how to read them and
15
understand how they're put together?
16
A.
Yes.
17
Q.
The structure of them?
18
A.
Yes.
19
Q.
And, you understand the purpose of them?
20
A.
I do.
21
Q.
What is that purpose?
22
A.
The purpose is, one, to communicate a
23
situation that has occurred not only to the people that
24
work with the animal, but also throughout all of the
25
animal training areas that work with the killer whales
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and then to review anything that has happened, look for
possible errors or things that may have occurred to
cause whatever the incident report is referring to, and
learn from them in the future so that these things are
not repeated.
JUDGE WELSCH:
I guess I'm a little unclear.
You don't see the incident reports -- you don't review
the incident reports from other parks?
THE WITNESS:
It hasn't been since I have
10
worked there protocol to have, like, a file of all of
11
the incident reports from all of the parks, only for
12
those animals that we're working with directly.
13
I don't know the reason why.
So, anybody I've
14
worked with or anything that's occurred while I've seen
15
working with those animals I have reviewed.
16
it happens in another park, if I was at the time working
17
with the killer whales, then that was sent to us, but
18
anything prior to May of 2004, I have not read.
19
BY MR. BLACK:
20
Q.
So, even if
And as part of your training to be a trainer,
21
you viewed some videotape of some killer whale
22
interactions?
23
A.
I have viewed a lot of interactions, yes.
24
Q.
Well, you have viewed some video footage of
25
some of the aggression incidents that have happened over
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the years?
A.
Yes.
Q.
And, that might have included, say, Steve
Able and Kyuquot in San Antonio?
A.
Yes.
Q.
And, you've seen the video tape of Ken Peters
and Kasatka from 2006?
A.
Yes.
Q.
And, you've seen video tape of Tamari Tolson
10
and Orkid and Splash?
11
A.
Yes.
12
Q.
And, you've seen the videotape of yourself
13
when Orkid pulled you under in 2006?
14
A.
Yes.
15
Q.
Now, you said you weren't sure, you didn't
16
think that Orkid was involved in the most incidents of
17
any of the California whales?
18
A.
At the time when you had asked me about the
19
time frame, I don't know where she was as far as numbers
20
of incident reports.
21
Q.
Would it surprise you if that binder in front
22
of you contained 15 incident reports involving Orkid
23
through the year 2010?
24
A.
If it's 15, it's 15.
25
Q.
Would that surprise you?
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A.
It wouldn't surprise me either way.
Q.
No opinion or feeling one way or the other?
A.
No.
Q.
And, many of those incident reports involved
shows, incidents that occurred during shows.
surprise you?
MS. GUNNIN:
Would that
Judge, I'm going to object to his
questioning him about the incident reports.
He's
already testified that he hasn't reviewed all the
10
incident reports that are part of Exhibit C-6.
11
he testified that prior to 2004, he didn't review any of
12
the incident reports.
13
14
15
In fact,
So, questioning him about all the incident reports

would be an unfair line of questioning.
MR. BLACK:
We'll do this simply.
I'm trying
16
to get an overview.
17
was wholly accurate, but let me ask a question.
18
JUDGE WELSCH:
19
BY MR. BLACK:
20
Q.
I don't think that characterization
Rephrase the question.
Did I understand you to say that you didn't
21
review incident reports that occurred prior to 2004 for
22
whales that you did work with?
23
A.
I reviewed certain reports that were
24
available about animals working at the Sea World of San
25
Diego.
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Q.
And, many of those reports proceeded 2004?
A.
It's very possible.
specifically.
Q.
But, you would have reviewed them if they
were, in fact, available at Sea World of San Diego?
A.
them, correct?
Q.
9
10
11
I don't recall
If they were available, I would have reviewed
And, is it fair to say that many incident
reports involving Orkid involved trainers making errors,

making mistakes?
A.
If we go through specific ones, but I would
12
say there's a chance that there are trainer errors when
13
there's an incident report written.
14
15
Q.
Because each time there's an incident, Sea
World evaluates the incident, right?
16
A.
Yes.
17
Q.
And, in doing that, one of the things they
18
look at is whether the trainer did something wrong,
19
right?
20
A.
Correct.
21
Q.
And, whether the trainers, either the ones
22
involved or other trainers might do something
23
differently the next time?
24
25
A.
Correct, and I would think that the vast
majority of time, in hindsight, we would say we would do
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something differently.
Q.
So, not only do some of the reports show the
trainers making errors, they also show trainers missing
precursors sometimes?
A.
They may.
specifically.
Q.
I would have to review them
And, they involve or some of them involve
instances where there were errors for the missing
precursors by senior level trainers?
10
MS. GUNNIN:
Judge, he's asking very general
11
questions again about these exhibits that are shown in
12
C-6.
13
whale, any time frame, any location.
14
15
He's not asking specifically about any particular
JUDGE WELSCH:
Sustained.
I think you need to
rephrase your question.
16
MR. BLACK:
17
approach, Your Honor?
18
JUDGE WELSCH:
19
BY MR. BLACK:
20
Q.
Let's do it this way.
May I
Yes.
Just for ease here, I have written down the
21
page numbers of incidents that involve this killer
22
whale, Orkid, and this is a list of -- and I just want
23
to go through a few of these.
24
25
MS. GUNNIN:
Judge, I'm going to object unless
I'm given an opportunity to verify that this is
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accurate.
That has a list that was just prepared today.
JUDGE WELSCH:
I'm assuming --
MR. BLACK:
This has not an exhibit, Your
Honor.
Rokeach is able to turn the pages as well as --
6
7
JUDGE WELSCH:
10
I'm assuming you're going to the
actual pages of the incident reports in C-6?
8
9
This is to aid the examination so that Mr.
MR. BLACK:
this.
And, we won't even be offering
We may present a chart like this in our brief,
but we're not offering this.
11
JUDGE WELSCH:
12
BY MR. BLACK:
13
Q.
Okay, go ahead.
So, Mr. Rokeach, this sort of overwhelming
14
looking stack is C-6, and it's in numerical order with
15
the page numbers on the lower, right-hand corner.
16
17
Have you seen incident reports with those

page numbers on them before?
18
A.
With page numbers?
19
Q.
Well, no, no, no.
Do you see where it says
20
"Sea World," and it has a page number on it?
21
seen some of those prior to sitting down here today?
22
23
24
25
Have you
A.
I've never seen anything with page numbers on
Q.
So, I was just going have you turn to, for
it.
example, the first one is Sea World 252, and if you
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would turn to that.
A.
(Witness Complies).
Q.
I don't know that I'm going to go through all
of these with you, but I do want to go through some of
them with you.
So, this incident report that you have in
front of you, which is numbered Sea World 252, this is
an incident with Orkid that happened back in 1990; is
that correct?
10
A.
Yes.
11
Q.
It indicates on the first page of the report,
12
right?
13
A.
Yes.
14
Q.
And, if you would turn to Page 255, it's the
15
fourth page of the report; do you see that page?
16
A.
255?
Yes.
17
Q.
And, Sea World of California indicated that
18
the control trainer of Orkid must use more mental and
19
physical stimulation to ensure the manner of the control
20
trainer is more interesting and rewarding than splitting
21
to another trainer; do you see that?
22
A.
Yes.
23
Q.
And, so what it's indicating is the employee,
24
the trainer made an error that he or she needed to
25
prevent doing the next time, right?
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A.
I have to review this whole thing.
I'm not
just going to make a judgement based on the last page.
So, if I can, I want to read the whole thing first.
Q.
I'm not asking for your assessment here,
although we can do that if you want.
asking if this was Sea World of California's
determination in this report that the trainer had made
an error?
9
10
A.
I'm really only
I don't want to just read it out of
context--
11
JUDGE WELSCH:
Mr. Black, I can read the
12
report.
13
know, if you're just asking him to reiterate what you
14
understand the statement is in the report and this
15
gentleman is asking you to read the whole report before
16
he necessarily agrees with you, I'm just not sure where
17
that's getting us.
18
I'll read the incident report myself.
MR. BLACK:
I don't
Well, it might get us answers to
19
some of the these questions that the Respondent didn't
20
like general questions about what some of the reports
21
show.
22
JUDGE WELSCH:
Well, the exhibit is in evidence.
23
You can in your brief identify the point you're trying
24
to make with references to the individual reports.
25
may or may not agree with your characterization, but I
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will read the report that you've identified and decide
for myself what the appropriate characterization is.
This gentleman, unless he was involved in the
report or unless he was involved in the incident, he's
just giving his own opinion.
know if I'm going to give that any weight.
opinion going to be any more valid than my opinion?
8
9
MR. BLACK:
No offense, but I don't

Is his
Really, it's something that is done
to highlight certain bits of evidence because I don't
10
realistically expect the Court to go through all of
11
those reports and look for what might be helpful or not.
12
This is one way that one points out.
Otherwise,
13
we would just authenticate our exhibits at the beginning
14
of trial and hand them to you and have you --
15
JUDGE WELSCH:
Let's go on, Mr. Black.
If
16
you're just going to have him point to these different
17
reports and ask him the same questions to verify your
18
understanding of what the report says, then we're going
19
to be here all day or the rest of the day and probably
20
tomorrow for him to read all these reports to agree with
21
you or not agree with you.
22
going to go.
23
MR. BLACK:
I don't know which way it's
Well, let's just then -- I've
24
tabbed a hundred of them here, but I'm just going to
25
pick the five top points that I would like to make with
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these.
Okay?
BY MR. BLACK:
Q.
Let's turn if you will to Page 471.
A.
Page 470 --
Q.
Page 471 of C-6.
A.
I'm with you.
Q.
And this incident report is from 1995, right?
A.
Yes.
Q.
And, the session that was occurring was
10
Are you with me?
during a show, right?
11
A.
That's what it says, yes.
12
Q.
And, now, if you would turn to the next page,
13
Page 472, and I want to turn to the very last paragraph
14
on that page.
15
The very last sentence says:
"Also, several incidents had occurred over
16
the past week either each whale separately or
17
both together," and those whales being Orkid and
18
Takara, "which should have served to alert the
19
trainers as to the severity of the progression of
20
inappropriate behavior."
21
Do you see that?
22
A.
Yes.
23
Q.
So, am I understanding Sea World's language
24
correctly when it says "several incidents had occurred
25
over the past week," that those are incidents that are
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incident report type incidents?
2
3
A.
I can't answer that by reading one statement.
I've got to read the whole report.
Q.
Well, let me ask you -- and I'll be happy to
have you read the whole report, but my question was,
really, does the word "incident" for Sea World, is that
a term of art that is in an incident with the whale?
8
9
A.
I can't out of the context of one sentence
tell you what that means.
I can tell you these are
10
called incident reports, but I can't tell you that every
11
day.
I mean, there's like incidents --
12
JUDGE WELSCH:
Did you write this sentence?
13
THE WITNESS:
I didn't write this sentence.
14
wasn't even a Sea World employee when this was written.
15
JUDGE WELSCH:
Sustained.
16
MR. BLACK:
That was a question.
17
18
19
Mr. Black -If he can't
answer it, that's fine.

JUDGE WELSCH:
He didn't draft the report as to
what it means.
20
BY MR. BLACK:
21
Q.
Is it important that you be able to
22
understand the incident reports in order to perform your
23
job as an animal trainer?
24
A.
Yes.
25
Q.
So, if you're given the time to read one,
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then you would be able to understand it, you think?
A.
I think that if there were any questions,
that I could ask the people that were present who may
have further information about it to clarify.
5
6
Q.
pretty clear on their face?
7
8
Okay, but sometimes the reports will be
A.
Ideally, we like to write the reports to be
as clear as possible.
Q.
Let's try one other.
10
of the incident report.
11
MS. GUNNIN:
Let's turn to Page 542
Judge, 542 is the same kind of
12
issue.
13
did not write the report, so this is the same
14
15
It's before Mr. Rokeach was at the stadium.
JUDGE WELSCH:
is.
Let's wait.
He
--
I don't know what the question
Hold your objection.
16
BY MR. BLACK:
17
Q.
Do you want to take just a second so you
18
won't have the same difficulty of not having read the
19
report?
20
21
A.
I'll take the time to read it if I can read
the whole thing.
22
Q.
Sure.
23
A.
Okay.
24
THE WITNESS:
Is that okay?
25
JUDGE WELSCH:
Yes.
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THE WITNESS:
BY MR. BLACK:
Q.
Thank you.
If you would turn to the second page of this
report, and it's page Sea World 544.
A.
544?
Q.
Yes, sir.
That's the third.
And do you see
where it says, "Did the acts of the employee contribute
to this incident?"
And it says, "yes," right?
A.
Okay.
10
Q.
And, it says, "What could have been done to
11
prevent this incident?"
Do you see that?
12
A.
Yes.
13
Q.
And, it indicates that the trainer should
14
have done something differently, right?
15
A.
Yes.
16
Q.
It indicates that the trainer made an error,
17
right?
18
A.
Yes.
19
Q.
And, that in that indication, it says that
20
the error or what could have been done to prevent this
21
incident, it says:
22
"The kneeling position is very close
23
proximity to the whale and is less mobile to the
24
trainer.
25
line-up, SD, from a standing position at a safer
Bob could have decided to give the
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distance."
Right?
A.
Correct.
Q.
So, that's pretty clear, isn't it?
A.
I would say that that assessment is clear as
it's written.
Q.
8
9
Yes, I understand it.
And, you understand it to mean that you don't
want to kneel in close proximity to the whale, right?

A.
I would say that's what this is saying is
10
that if he was not kneeling next to the whale, when he
11
gave that signal, she would not have had that
12
opportunity right there to touch his leg.
13
understanding.
14
Q.
15
16
17
18
19
That's my
Because being in that position there gave the
whale an opportunity to touch the leg?

A.
I would say that he could be -- if he's
standing, it might give less of an opportunity to touch.

Q.
And, it's a safer position to be standing up
rather than kneeling?
20
A.
Yes, I would say it's more mobile.
21
Q.
Does that make it safer for the trainer?
22
A.
Depending on what's going on.
It could if he
23
needs to move somewhere rather than being right there,
24
but it can also cause other issues being standing up and
25
far away.
CARLIN ASSOCIATES
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Q.
Well, it said:
"Bob could have decided to give the line up
SD from a standing position at a safer distance."
That was the analysis, right?
A.
That's what the analysis says, correct.
Q.
Do you disagree with that analysis?
A.
I don't disagree that if he was standing up
and gave that signal there, then she wouldn't have the
opportunity to touch his thigh.
10
Q.
11
bad.
12
the thigh?
13
14
15
And, touching the thigh doesn't sound very
Why were you concerned about the whale touching
A.
I think it's important to communicate
anything that looks out of the ordinary with these guys.

Q.
Isn't the real concern more than that the
16
whale is just going to touch his thigh; but, instead,
17
the whale might do something that has far worse
18
consequences?
19
A.
We always want to make sure that we're taking
20
every precaution possible for any eventuality, but the
21
reason that we write this is to communicate, "Hey, this
22
was out the ordinary.
23
24
25
Q.
Be aware of the situation."
And, so don't kneel and put yourself in a
vulnerable position?
A.
I think that's saying in this situation, if
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he wasn't kneeling, he wouldn't have been touched.
not saying don't ever kneel next to a killer whale.
3
4
Q.
It's
But, it's a recognition that when you're
kneeling, you're less mobile?
A.
You can be less mobile, correct.
Q.
And, lying down would be the less mobile than
kneeling?
A.
Generally, lying down is less mobile.
Q.
I want to go back to --
10
JUDGE WELSCH:
The question I have is on an
11
incident report like that, when the trainers get that
12
incident report, and you read it over, is a rule put in
13
place amongst the trainers that you're no longer going
14
to be kneeling down with this particular whale?
15
think we're talking about Orkid.
You don't kneel down
16
when you're dealing with Orkid?
Is that a rule that's
17
put in place, or is that just information passed about
18
this behavior at this particular time and no other
19
changes are made?
20
THE WITNESS:
And I
In this situation, I think it's
21
be aware.
22
circumstance presented itself, it could become a rule
23
like --
24
25
I don't think it's a rule.
JUDGE WELSCH:
I think if the
So, if he does it a second time
or third time?
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THE WITNESS:
Perhaps or if it was something
more egregious, I guess, rather than just touching your
thigh; like, hey, this is a situation that presents
itself to be very unsafe to us so let's don't put
ourselves in that situation.
rule.
7
8
9
JUDGE WELSCH:
Then, it could become a
But, at that point in time, as
far as you know, there wasn't a rule?

THE WITNESS:
No.
My understanding from this
10
is that there wasn't a rule, and when I was working at
11
Shamu Stadium, there was no rule to my knowledge of not
12
kneeling next to Orkid.
13
BY MR. BLACK:
14
Q.
And, now, I want to talk about the incident
15
you were involved in with Orkid on Page 1150.
16
have what in front of you?
Do you
17
A.
Yes.
18
Q.
And, in that incident, Orkid left the area of
19
the pool where he had been swimming and came after and
20
grabbed you and took you under water?
21
A.
Yes.
22
Q.
Did I say "he"?
23
A.
Yes.
24
Q.
Orkid, she grabbed you and dumped you.
25
A.
Yes.
She.
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1
2
Q.
And, you suffered some strained ligaments,
tendons as a result of that incident?
A.
Correct.
Q.
You were injured in that incident?
A.
Correct.
Q.
And, it was after that incident, that Sea
World decided that until further notice they were going
to go dry, if you will, with Orkid.
cease water work with Orkid?
They were going to
10
A.
Correct.
11
Q.
What was it about that incident in your
12
understanding that caused Sea World to decide to go dry
13
with Orkid?
14
A.
With Orkid?
15
Q.
Yes.
16
A.
Well, I know that for one thing, after we saw
17
something like that, we wanted to give her an
18
opportunity not to really think about it, don't want to
19
give any opportunity to -- just basically forget the
20
occurrence, kind of get it out of their head and also
21
allow us the opportunity to review and make sure that
22
we're in a good place and then when we're ready to get
23
back in, if we're going to, to take the opportunity to
24
approximate the steps back in, make sure that we're
25
reinforcing the appropriate behavior and not giving any
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1
2
opportunities to rehearse inappropriate behavior.

Q.
And, in that instance after the November 2006
incident, Sea World of California did not resume water
work with Orkid prior to Ms. Brancheau's death?
A.
I can't say for certain.
I don't believe.
don't know for certain.
any type of water work from the point that this occurred
until when I left, which was in August of 2008.
recall that ever happening.
10
11
Q.
I don't recall anybody doing
I don't
And, so in the two years before you left, Sea
World hadn't returned to water work with Orkid?
12
A.
Again, not that I recall.
13
Q.
And, so they had spent -- at least as of that
14
point, they had spent two years evaluating and trying
15
the figure out what the next steps were?
16
A.
I know that we didn't return to the water
17
with her.
18
-- or I shouldn't say that.
19
that it was directly related to Orkid or other events
20
that occurred as to why we didn't get back in or why the
21
decision was made not to get in.
22
I don't know the specific reasons as to why

I should say I don't know
I know initially, after the incident, we made
23
that determination that we were to stay out of the
24
water, but then beyond that, I wasn't party to the
25
decision as to why we weren't going to get back in with
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1
2
her specifically.
Q.
You were a Senior 1 trainer -- excuse me, you
had already before you had left to go to Loro Parque,
become an assistant supervisor, right?
A.
Supervisor.
Q.
Supervisor?
A.
Correct.
Q.
And as a supervisor at Sea World, the people
9
10
11
above you didn't tell you why they weren't getting back
in the water with Orkid?
A.
Like I said, I wasn't part of that
12
conversation, that decision as to why, but I know that
13
it was decided that we were not going to get back in
14
with her until the future.
15
Q.
Do you know the reason for that decision?
16
A.
The reason why we weren't getting back in
17
with her?
18
Q.
Yes, sir.
19
A.
We were, I believe, eventually going to plan
20
on a water work approximation, but I know that she and
21
Kasatka, we decided not to get back in with her until a
22
time that they decided was appropriate that we would
23
start again.
24
25
And, those decisions are made by the

assistant curators and the VP of Zoological who are both
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1
2
3
above me.
Q.
Did they communicate to you the reason for
their decision?
A.
Not specifically.
Q.
How about less than specific?
Did you hear
in your duties as a trainer, as a supervisor why Sea
World wasn't getting back in the water with Orkid?
8
9
A.
I did not talk to them specifically about
their specific reasons as to why they were not getting
10
back in.
11
Q.
It sounds like you maybe have some indication
12
or some knowledge as to why Sea World chose not to get
13
back in.
14
A.
About why we chose not to get back in?
15
Q.
Correct.
16
A.
Like I said, after they decided not to get
Do you?
17
back in because at the initial time they decided not to
18
get back in with either Orkid or Kasatka until further
19
notice in the future when they decided that they wanted
20
to start the water work approximation process.
21
They didn't tell me what their reasoning was
22
or the time table would be, and that's a question for
23
those people that were above me.
24
25
Q.
I understand it's their decision, but I'm
asking you about the communication of that decision to
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you as a supervisor, one step below, the assistant
curator?
A.
Correct.
Q.
They didn't in any way communicate to you
what the reason was?
A.
They didn't communicate to me specifically
why we're not going to get back in the water with them.
If anything, I would ask, "Are we going to, or is there
a time table?"
10
Q.
And, I would get no specific answer.
So, for that nearly two years after you got
11
out of the water with her until you went to Loro Parque,
12
you don't recall there being any of the water work
13
approximations that you described?
14
A.
I don't recall, no.
15
Q.
Is it commonplace in your career at Sea World
16
for them to cease water work with whales?
17
A.
18
left.
19
occurring.
20
21
It occurred from November of 2006 until I
So, that's the only experience I have of that
Q.
And, it occurred with three of Sea World of
San Diego's whales, right, Ulises being the third?
22
A.
I think that was stopped with Ulises as well.
23
Q.
And, what was it about those three whales as
24
opposed to the other four whales that Sea World had that
25
caused Sea World to stop doing water work with them?
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A.
Well, Orkid and Kasatka was history, and
Ulises was just a -- I believe it was a general concern
because he was a larger male.
Q.
And, tell me what you mean when you say,
"history."
involved in some serious aggressions?
A.
correct.
Q.
Does that mean because those whales had been
Because of the incidents that had occurred,
So, there was a safety concern; a safety
10
consideration?
11
A.
Yes.
12
Q.
Now, returning to Loro Parque, how long after
13
-- you said you returned to Loro Parque or you went to
14
Loro Parque in August 2008?
15
A.
Correct.
16
Q.
And, then, the trainer, Alexis Martinez, was
17
killed on Christmas Eve of 2009?
18
A.
Correct.
19
Q.
And, you were working during that session in
20
which Mr. Martinez was killed?
21
A.
Yes.
22
Q.
And, you were on stage of the stadium?
23
A.
Correct.
24
Q.
And, we have heard testimony that there were
25
several small ordinary commonplace and minor occurrences
CARLIN ASSOCIATES
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that caused that death or caused that incident?
A.
Speculated, yes.
Q.
And, that was the evaluation that Sea World
had made?
A.
Correct.
Q.
And, that wasn't anything big or egregious or
anything wrong.
It was a bunch of minor things that
likely attributed to the incident?
A.
Yes.
10
Q.
Now, can you tell us what happened?
11
Can you
describe the incident and how it happened, briefly?
12
A.
From what points?
13
Q.
Well, as far as back as you need to go to
14
15
give us a picture of what was going on there.

A.
Okay.
Alexis sensed a behavior from one of
16
the back pools to the front pool which Keto did
17
correctly, and Keto was received or taken under control
18
of the slide-out area which is closest to the audience
19
and rewarded with -- actually, I'm not positive what he
20
was rewarded with.
21
fish, and then I believe he went on a perimeter behavior
22
which is just a slow swim along the surface of the pool
23
around the perimeter where he received on side stage, to
24
the right side of the stage by Alexis where he was given
25
a rubdown.
I believe in the report it says with
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I believe at that point Alexis got in and did
a spy hop which is a high energy behavior in the center
of the pool where he kind of rides up on Keto.
And, the criteria wasn't exactly correct so
he did not receive the whistle, the bridge.
surfaced, he was LRS'd, least reinforcing scenario, at
which point I believe he recalled Keto.
8
9
He asked for a stage call to the slide-out

area.
Basically, Keto would be called over where he was
10
reinforced.
11
at the report because I think I'm getting --
12
13
14
Q.
17
Actually, you know, I think I need to look
It's actually at the very end.
I believe the
last report.
A.
15
16
So, when he
So, yes, so far I'm good.

He was pointing back to Alexis in the water
where Alexis was -Q.
Just for the record, you're reading from the
18
report that's at pages Sea World 2722 to 2728.
19
ahead, I'm sorry.
20
A.
Okay, go
So, Alexis received him in the center of the
21
pool -- and I totally skipped something.
22
after the initial spy hop, that high energy behavior at
23
the center and after what LRS was applied, Alexis came
24
back to stage with Keto where I was, and he rewarding
25
him with a big snow ball, something that Keto finds very
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1218
reinforcing.
He then did another perimeter ride.
He
actually rode Keto around the perimeter of the pool,
dove off of Keto with a foot push, foot pushed towards
the bottom where he performed another stand-on sky hop
another high energy behavior in the center.
Again, it was a good spring, but it was a
little twisted on the criteria, so he didn't receive the
whistle.
The three-second LRS, the usual response was
10
applied again, and that's when he was called over to the
11
slide-out area and rewarded with food.
12
Keto was then pointed by Alexis back in the
13
center of the pool, and Alexis said he was just going to
14
bring him to stage on what's called a haul out and
15
basically pulled on Keto's nose or rostrum and ride him
16
underwater and then up on the stage.
17
At that point, Keto went very deep toward the
18
bottom of the pool, and I think Alexis really wasn't
19
correct.
20
together.
21
look quite right," or something to that effect, and he
22
asked for a stage call and actually an underwater tone
23
which asks the animal to come to stage.
24
25
So, he let go and they both floated up

Alexis looked at me and said, "he doesn't
Keto responded correctly, but his control was

very vague, looking at Alexis in the pool.
CARLIN ASSOCIATES
(216) 226-8157
So at that
1219
time, I asked for the trainer to bring me some
reinforcement, a bucket of fish so that I would have
something available.
And, I was trying the get into control with
Keto, and when I thought I had the best control I could
get, realizing that something didn't look right, I asked
Alexis to swim out toward stage but in an area I call a
slide-over which is a little easier to get out.
that point, Keto left control with me and spun around
10
11
and pushed into Alexis's chest.

Q.
Now, you said he pushed him into the chest.
12
Actually, he rammed him such that he suffered
13
compression injuries to his chest?
14
A.
I can't really testify to when he received
15
those injuries.
16
taken down under water, and at what point he was
17
injured, I don't know.
18
And at
Q.
I know that he turned around and he was
But, you do know that not only did he drown,
19
but the autopsy showed that he had serious compression
20
injuries to his chest?
21
A.
Yes.
22
Q.
And, he died as a result of that incident?
23
A.
Correct.
24
Q.
Now, when you said that you were, I think you
25
said you were turning around, and then you were
CARLIN ASSOCIATES
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1220
signalling or telling Alexis to exit at the slide-out
area?
A.
Slide-over.
Q.
Slide-over, I'm sorry.
Those are slightly
different places.
Keto then left you at the stage and went over to Alexis?
7
8
A.
Was it immediately after that that
Yes, but one thing, I never turned around.
was facing Keto.
Q.
And, I'm sorry I didn't -- so, in a split
10
second, Keto left you and went over and made contact
11
with Alexis?
12
A.
Yes, in a fairly fast motion, yes, he did.
13
Q.
How many seconds?
14
A.
I mean, I think that when he started swimming
15
he started to turn, even though Alexis was over here, he
16
started moving this way, maybe a second or two; I don't
17
know.
18
19
Maybe.
Q.
And, then took him down apparently to the
bottom of the pool?
20
A.
Correct.
21
Q.
Now, there wasn't any time to implement
22
23
24
25
emergency call-back procedures, was there?

A.
I mean, I called him back but not before he
was already engaged.

Q.
So, Sea World knows from experience that
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1221
emergency call-back procedures performed while the whale
is in a heightened state, if you will, will rarely
succeed in getting the whale to come back?
4
5
6
A.
I guess -- I'm sorry, there hasn't been a lot
of success in that specific scenario.

Q.
Now, as a result of this incident, Loro
Parque decided that it would perform its shows with the
whales with the trainers out of the water with those
whales, right?
10
A.
Yes.
11
Q.
And, are you aware that the Government of
12
Spain concluded that swimming with the whales was
13
inherently dangerous in the water?
14
MS. GUNNIN:
15
question because there's not been a foundation about
16
whether what --
17
JUDGE WELSCH:
18
BY MR. BLACK:
19
Q.
Sustained, sustained.
And, I just have a couple more questions.
20
Now, at the same time that Loro Parque chose
21
to stop doing water work, Sea World continued its water
22
work interactions?
23
24
25
A.
I don't know.
Are you saying the moment of
or sometime after?
Q.
Yes, that's a fair point.
CARLIN ASSOCIATES
In the immediate
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1222
aftermath, Sea World briefly ceased water work at its
parks until Mr. Scarpuzzi went around and
provided training regarding the incident?
MS. GUNNIN:
question because we've had Mr. Scarpuzzi testify, who
actually walked us through in detail about the decision
to go back in the water, and he discussed going to the
other parks.
There is no foundation that Mr. Rokeach had
10
anything to do with that.
11
that he stayed at Loro Parque after that event.
12
13
JUDGE WELSCH:
In fact, his testimony is
Mr. Black, you need to lay a
foundation.
14
MR. BLACK:
15
BY MR. BLACK:
16
Q.
Certainly, Judge.
As a trainer -- excuse me, as an assistant
17
supervisor at Sea World of San Diego, do you have an
18
understanding, a genesis, of how it came to be that
19
events followed what happened at Loro Parque?
20
21
A.
That's a really broad question.
I need
something more specific.
22
Q.
Do you have some understanding?
23
A.
I understand that they did get back in the
24
water, but I was not at all a party to any of those
25
decisions.
CARLIN ASSOCIATES
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1
2
3
Q.
And, they got back in the water at some point
after December 24th?

A.
At some point after Alexis, at some point, I
don't know the time table, they did get back in the
water, yes.
Q.
And, they stayed in the water, whatever that
point was, until two months later, Ms. Dawn Brancheau
was killed at Sea World of Florida?
A.
That is my understanding.
10
Q.
And, they did that despite knowing that
11
relatively commonplace and minor occurrences had caused
12
the death of Alexis Martinez?
13
MS. GUNNIN:
14
that question because there is no foundation that Mr.
15
Rokeach makes any decisions at Sea World of Florida.
16
JUDGE WELSCH:
17
can answer that question.
18
Go ahead.
19
MR. BLACK:
20
21
Sustained.
I don't think he
I'm not sure what was -- and this
is my last question, but I'm not quite sure -JUDGE WELSCH:
The way I understood your
22
question, you're asking about the motivation of Sea
23
World corporation, what the motivation was as to whether
24
or not to get back in the water.
25
MR. BLACK:
I will ask it more carefully.
CARLIN ASSOCIATES
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1
2
JUDGE WELSCH:
trainer or whatever.
MR. BLACK:
BY MR. BLACK:
Q.
He's a trainer or a supervisor

He doesn't make those decisions.
Let me ask it more carefully.
Whatever the basis for Sea World's decision
to go back in the water prior to Ms. Brancheau's death,
you understand that Sea World's evaluation was that
relatively commonplace and minor occurrences caused that
death of Mr. Martinez?
10
A.
Our evaluation was there was a series of
11
occurrences that accumulated that we think caused that
12
issue.
13
Q.
And, there were minor commonplace
14
occurrences; would you agree with that?
15
evaluation that Sea World made?
16
A.
Commonplace as in they occur.
That was the
These are
17
things that we saw that we noticed that combined
18
together occurred, yes, that we have seen in the past
19
that there's a history of.
20
21
22
23
Q.
So, they were not things that had never
occurred at Sea World Parks?

A.
That's correct, they were not things that had
never occurred.
24
MR. BLACK:
25
JUDGE WELSCH:

Ms. Gunnin?
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1225
MS. GUNNIN:
Yes, Your Honor.
I think I may
have some Cross, but how long are we going to be able to
be in the courtroom?
4
5
6
JUDGE WELSCH:
five.
Is he available tomorrow morning?

MS. GUNNIN:
8:00 a.m. tomorrow.
him to leave.
9
10
I think we need to leave by
JUDGE WELSCH:
flight?
Judge, he has a flight out at

So, I don't really want to delay
Can he catch a little bit later
We could start at 8:00 in the morning.
11
MS. GUNNIN:
I don't think that he can, Judge.
12
JUDGE WELSCH:
How long is your questioning?
13
MR. BLACK:
Judge, we made the reservations,
14
Government reservations.
15
later flight.
16
17
18
JUDGE WELSCH:
I'm sure we can get him on a
Do you know if there's a later
flight to San Diego?

MR. BLACK:
I can look it up, but what we
19
certainly don't want to do is not finish with this
20
witness and leave this witness.
21
JUDGE WELSCH:
22
Do you have any problem if he takes a later flight
23
24
25
No, no, I'm not going to do that.
tomorrow?
MS. GUNNIN:
Judge, I would prefer to finish
tonight if possible.
CARLIN ASSOCIATES
(216) 226-8157
1226
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2
3
4
5
JUDGE WELSCH:
But, how long are your questions
going to take?
MS. GUNNIN:
this witness.
Judge, we have no questions for
We'll let him go back.
JUDGE WELSCH:
You're excused.
I will instruct
you not to discuss your testimony with other persons who
may be called later as witnesses in this case.
9
10
11
(Witness Excused)
JUDGE WELSCH:
With that, we stand adjourned
until 9:00 tomorrow morning.
12
---o0o---
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BY:__________________________
Norma Carlin
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----------------------------------- x
)
)
SECRETARY OF LABOR,
)
)
Complainant,
)
)
-vs)
)
)
)
Respondent,
)
)
)
------------------------------------x
OSHRC DOCKET
NO. 10-1705
13
14
VOLUME VII.
15
16
Before:
Judge Ken S. Welsch
17
Date:
Wednesday, November 16, 2011

9:00 a.m.
Place:

18
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21
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25
CARLIN ASSOCIATES
(216) 226-8157
1229
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APPEARANCES:
JOHN BLACK, ESQ.
Suite 7T10
(404) 302-5435
Suite 2400
(404) 525-8622
GEORGE COE, ESQ.
Suite 840
407-425-7118
17
18
19
20
21
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25
CARLIN ASSOCIATES
(216) 226-8157
1230
I N D E X
WITNESSES
Name
Mairot
Flaherty Clark
8
9
10
11
1265
1456
Cross
1363
-
Redirect
Recross
1445
-
---o0o---
6
7
Direct
EXHIBITS
Complainant's
Description
Marked
(None)
Respondent's
(None)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CARLIN ASSOCIATES
(216) 226-8157
Admitted
1231
Morning Session
9:00 a.m.
JUDGE WELSCH:
Does the Secretary have any further witnesses?
MR. BLACK:
We do not, Your Honor.
10
JUDGE WELSCH:
Does the Secretary rest?
11
MR. BLACK:
Before we rest, we just want to
12
make sure that our Exhibits C-1 through C-13 all have
13
been received.
14
JUDGE WELSCH:
Yes, according to my records, C-1
15
through C-13 have been admitted into evidence, and
16
Respondent's Exhibits R-1 through R-5 have been admitted
17
into evidence.
18
Anything further?
19
MR. BLACK:
20
Nothing further.
The Secretary
rests, Your Honor.
21
JUDGE WELSCH:
Ms. Gunnin?
22
MS. GUNNIN:
Yes, Your Honor.
23
JUDGE WELSCH:
Do you wish to call your first
24
25
witness?
MS. GUNNIN:
Prior to the start of our case we
CARLIN ASSOCIATES
(216) 226-8157
1232
would like to make a motion to dismiss some of the
citations.
that.
I would like the field and have argument on
JUDGE WELSCH:
Okay.
MS. GUNNIN:
Judge, I would like to draw your
attention to Citation 3, Item 1.
This is the item
involving an allegation of a violation of 29 CFR
1910.305(j)(2)(v) about an electrical receptacle.
There's been no testimony submitted by the Secretary on
10
this citation item, and as such, we would move for
11
dismissal of the item for lack of the Secretary
12
presenting its prima facia case of this item.
13
JUDGE WELSCH:
14
Mr. Black?
15
MR. BLACK:
Let's do this one at a time.
Your Honor, we have not provided
16
any evidence to that item.
17
than serious item that we understand has been corrected.
18
So, we would withdraw that.
19
20
21
22
JUDGE WELSCH:
This was a no penalty, other
So, Citation 3, Item 1, has been
withdrawn by the Secretary.

MR. BLACK:
Right.
That was the item dealing
with weatherproofing of electrical outlets.
23
JUDGE WELSCH:
Right.
24
MS. GUNNIN:
Yes, Your Honor, on the Citation
25
Okay, Ms. Gunnin?
2, Item 1, the alleged violation of Section (5)(a)(1) of
CARLIN ASSOCIATES
(216) 226-8157
1233
the Occupational Safety and Health Act, although it is
understood by Respondent that in cases such as this, it
would be an unusual case where we would be given a
directed verdict on the evidence at the close of the
Secretary's case, we would like to present an argument
related to this item and some lack of evidence that we
feel hasn't been submitted in the Secretary's case.
8
9
As you know, Judge, for a 5(a)(1), there are

certain elements that the Secretary must prove.
One of
10
the elements -- and I'm not going to go through all of
11
them, but I will discuss one element in particular, and
12
that is the feasible abatement that is to be offered by
13
the Secretary, the Secretary has the burden to prove the
14
feasible abatement that would permit the employer to
15
engage in whatever activity it is that they are claiming
16
they are not engaging in safely.
17
And, in this case, with regard to feasible
18
abatement, there has not been evidence presented by the
19
Secretary of what the feasible abatement methods would
20
be that would permit Sea World to continue to engage in
21
the activity of caring for, displaying and showing for
22
entertainment purposes, killer whales.
23
burden that is on the Secretary of Labor.
24
25
That is the
There has been lots of testimony in the case about

different aspects, but when it comes down to who has
CARLIN ASSOCIATES
(216) 226-8157
1234
offered testimony about feasible abatement, there has
been no testimony from someone from OSHA who would say
that this is a feasible abatement, and this has been
achieved by Sea World or this would be the abatement
that if you would do this abatement, this would be
feasible for you to continue to operate in the manner
that you operate.
8
9
The Secretary has made interesting arguments about

not being in the water, not doing shows, but when it
10
comes down to legal argument and the legal requirements
11
of the 5(a)(1), the 5(a)(1) requires identification of a
12
hazard, identification of recognition of a hazard by the
13
Company and then a feasible abatement method that is
14
proven by the Secretary to be feasible.
15
In this case, we have not heard from the only
16
witness from OSHA who has testified that, one, what
17
they're doing now would be a feasible abatement because
18
as Mr. Grove, the only OSHA representative to testify,
19
has said, he's not seen the show.
20
whether or not the show is in compliance as it's
21
presented now.
22
So, he doesn't know
He does not know what kind of husbandry goes on,
23
he doesn't know how they care for the killer whales, so
24
he doesn't know whether or not there is a feasible
25
abatement method for those practices.
CARLIN ASSOCIATES
(216) 226-8157
1235
All OSHA has said in this case is, if you look at
the citations, do not have close contact with killer
whales unless you are behind a protective barrier.
Mr. Grove was questioned about what would a protective
barrier look like, what would that be, "I don't know."
When
It's the burden of the Government to prove what
that protective barrier would be and how that protective
barrier would be used by the Respondent to carry on its
business.
10
It is not enough for the Government to just simply
11
say in a 5(a)(1), "I don't know really what you do, I
12
don't really know how you can safely do it, but,
13
furthermore, I'm telling you you're willfully violating
14
5(a)(1)."
15
There has to be a feasible abatement method
16
proffered by the Secretary, and the only OSHA witnesses
17
in this case has not given the reasons for that.
18
expert has not given what feasible abatement methods
19
would be offered to allow Respondent to engage in its
20
business and to do it safely.
21
OSHA's
There's been no direction by the Government.
And
22
on that basis alone, we would say a key element in the
23
citation has not been proven by the Secretary.
24
25
But, if you take that a step further and then if

you're not so inclined to really recall the testimony --
CARLIN ASSOCIATES
(216) 226-8157
1236
there's been a delay of two weeks from the testimony --
then I proffer another argument and that is on the
willful itself.
You've heard a lot of testimony from the training
level, from management level, you've heard testimony
from OSHA's expert, none of which would prove a willful
citation in this case.
plain indifference or reckless disregard of compliance
with 5(a)(1).
10
There has been no evidence of
In fact, what you have heard is the Company over
11
time is continuing to improve the opinions of OSHA's
12
expert, Sea World is the expert in the field.
13
experts in the field have continued to improve.
14
have heard testimony after incidents, things that were
15
changed, things that were done.
16
about whether they achieved ultimate safety, but the
17
experts in the field were taking active measures to
18
improve the safety of its trainers.
19
The
You
And, we may disagree
And, this is not just subjective, this is actually
20
objective because if you look at the incidents, they've
21
trimmed down dramatically.
22
incidents, talking about the incidents.
23
Company showing every near miss.
24
injuries, they're near misses in most cases.
25
heard testimony, they're not all injuries.
You have a book of
CARLIN ASSOCIATES
Those are the
They're not all
(216) 226-8157
You've
In fact, the
1237
1
2
vast majority are not injuries.

So, unlike most OSHA cases where you don't hear
evidence of every near miss that the Company has had
happen, there's been testimony presented of every near
miss because that is the attention to detail that the
Company has paid to that.
They have wanted to take away all the near misses,
so they document those.
So rather than those being used
as a positive, those been defined as a negative.
And,
10
they are not a negative.
11
That's a Company paying attention to safety, looking for
12
ways that they can improve the safety of the trainers
13
who are interacting with the killer whales.
14
They're actually a positive.
Going past their own look at their program,
15
looking at what they do, Cal-OSHA looked at this very
16
activity in 2006, 2007.
17
they didn't do in that report is they didn't issue a
18
Citation.
19
They issued a report, and what
They never said, "You're in violation of the
20
general duty clause," and as they looked at this very
21
activity, we have heard great details now about the
22
incident that Cal-OSHA looked it.
23
Peters and the whale known as Kasatka.
24
at that very incident, the one that we've seen video on,
25
the one that we've heard Ken Peters testify about.
CARLIN ASSOCIATES
It involved Ken
Cal-OSHA looked
(216) 226-8157
And,
1238
at the end of the day, Cal-OSHA said, "We are not
issuing a citation.
but do it if you can, but if you can't, there's no
action afterwards."
We are issuing suggested abatement,
That's what Cal-OSHA said.
And, Cal-OSHA is not just some agency out there.
Cal-OSHA is a State Plan mandated by the federal plan by
Federal OSHA to be not half way as good, not close to
being as good, but at least as effective as the federal
plan.
10
So, to look at that and to not consider that OSHA
11
has looked at this very issue and not considered that,
12
how can that be willful to a Company that just had that
13
issue looked at, and the agency passed its safety, did
14
not give them any further recommendations through a
15
citation.
16
So, what we have in present time, since we have
17
Federal OSHA saying, "Disregard that Cal-OSHA has looked
18
at that.
19
That doesn't matter."
But it does matter, and it matters about willful,
20
it matters a lot about willful, and it also matters
21
about the citation itself because there is an element
22
here of fair notice.
23
notice of what it needs to do to comply?"
24
say, no, not when Cal-OSHA just looked at this issue and
25
they didn't offer anything and they didn't issue a
"Has the Employer been given fair
CARLIN ASSOCIATES
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And I would
1239
1
2
citation, and they could have issued a citation.

And, lastly, on willful, if you look the AZA
standard that has been proffered into evidence, OSHA
looked at this.
and considered, and they decided that's not relevant;
we're not looking at it because they don't point to the
AZA standard in their willful citation, although
typically in a 5(a)(1) case, you would look at industry
guidance, you would look at industry recommendations,
10
you would look at ANSI, for instance, ASME, you would
11
look at those recognized bodies.
12
This was something that they looked at
And, there's testimony about what AZA is; that Sea
13
World is an accredited member of that institution, and
14
OSHA in this case decided, "We're not looking at a
15
recognized body that gives recommendations for safety
16
and compliance and accreditation.
17
that because that's not in our mind good enough, so
18
we're not going to consider it in this case."
We're not considering
19
So, again, something that OSHA has diverted from.
20
They would not typically do that in a case, but in this
21
circumstance, because it didn't suit the pattern of
22
willful, it's disregarded.
23
So, I would submit that willful citation has not
24
been proven.
I would also submit that there's a key
25
element in the citation itself that has not been proven
CARLIN ASSOCIATES
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1240
and that is feasible abatement.
JUDGE WELSCH:
Thank you, Ms. Gunnin.
Secretary?
MS. HOWARD-FISHBURN:
The Secretary in response to Sea World's arguments
with regard to the 5(a)(1), of course, we disagree that
there has not been evidence to prove each of the
elements that we are required to prove.
There was testimony by Mr. Grove regarding a
10
feasible means of abatement, which was the physical
11
barrier, there was testimony from countless Sea World
12
employees informing the Court that essentially they have
13
abated this issue with regard to Tilikum.
14
So, they know how to abate the hazard, but for
15
whatever reason, they have decided that they don't want
16
to do that for all the other whales.
17
So, I don't think that the statement is accurate
18
that a feasible means of abatement has not been
19
presented.
20
was that that was just one means because OSHA doesn't
21
sort of say, "do it this way."
22
example in the citation, and the Company is free to try
23
to explore other areas if that's not one that they agree
24
with.
25
among other means, some feasible means would be not to
I think also the testimony from Mr. Grove
They give them an
And, that's the citation they just read that says
CARLIN ASSOCIATES
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1241
allow the animal trainers to have contact in this
instance with Tilikum unless they are protected by a
physical barrier.
JUDGE WELSCH:
But, you would agree that under
5(a)(1), the Secretary does have some burden to show
feasible means of abatement?
7
8
9
I do, Your Honor.
I do
agree and I believe Mr. Grove's testimony -JUDGE WELSCH:
What is the feasible means of
10
abatement that the Secretary believes that they have
11
shown in this case?
12
Out of the water with
13
the other whales and for Tilikum being away from them
14
and a barrier.
15
JUDGE WELSCH:
Is a feasible means of abatement
16
that the Secretary is proposing just remaining out of
17
the water for all the whales?
18
different but for all whales just remaining out of the
19
water?
20
Tilikum is a little bit
Remaining out of the
21
water in some respects, yes, Your Honor.
22
way to abate the hazard of not being struck by or not
23
being drowned is not to swim with the whales.
24
JUDGE WELSCH:
25
That is one
What about barriers?
CARLIN ASSOCIATES
Barriers would be one
(216) 226-8157
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1
2
suggestion, but from the testimony -JUDGE WELSCH:
I guess what I'm asking is, is it
the Secretary's position in terms of feasible abatement
that all Sea World has to do is have the trainers remain
out of the water when they're putting on their shows for
all the whales, or is the Secretary also requiring any
kind of barriers in addition to remaining out of the
water?
A barrier would be one
10
work requirement or distance so that they are not
11
putting themselves in a position where they could be
12
struck by the whale where they could be pulled into the
13
water and be drowned.
14
I believe that has been the testimony, and Sea
15
World is doing that right now.
16
removed the trainers from the hazard that the Secretary
17
identified, and so that we believe there's been
18
evidence.
19
JUDGE WELSCH:
They have essentially
So, based on your understanding
20
as to Sea World's testimony, based on your
21
understanding, then you would agree that at the present
22
time, Sea World is in compliance or has abated the
23
alleged hazards that the Secretary has cited for?
24
don't have to make any other changes, other than what
25
they have right now?
They
If they kept going on with what
CARLIN ASSOCIATES
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1243
they have right now, as far as the Secretary is
concerned, that they have abated the condition or have
feasibly abated the situation?
Your Honor, as it
relates, yes.
think there's still an issue regarding the trainers
being near the ledge and not being far enough away from
the other whales.
As it relates to the other whales, I
JUDGE WELSCH:
Then, that's the question.
What
10
is the abatement that the Secretary has shown with
11
regard to the other whales in terms of their burden of
12
proof?
13
That they could have a
14
barrier or some distance with the other whales, and
15
they're doing all of that with Tilikum now, but they're
16
not doing that with the other whales.
17
JUDGE WELSCH:
So, the Secretary's abatement
18
would be the same thing they're doing with Tilikum to do
19
it with all the whales?
20
say?
21
22
23
Is that what I'm hearing you
As it relates to the dry
work activity, yes, Your Honor.

JUDGE WELSCH:
Under any scenario, would the
24
Secretary recognize water work as an abatement, being
25
able to work in the water with the whales as in
CARLIN ASSOCIATES
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compliance with the alleged violation?
JUDGE WELSCH:
No, Your Honor.
Okay, what about the willful?

As it relates to the
willful, Your Honor, I believe that there has been
evidence of a willful violation.
the evidence that has been presented, but I think the
evidence shows that Sea World was on notice that there
was a hazard to their trainers to be in close proximity
10
11
You could argue about
to the whales.
They had numerous incidents, as you can see from
12
C-6, and repeatedly while they say the injuries trimmed
13
it down, the evidence shows that repeatedly something
14
happens, they learn as they would say from that
15
incident, but they continue to put their trainers back
16
into harm's way with the trainers, and at least leading
17
up to Ms. Brancheau's death, I mean you had a situation
18
that occurred with Alexis Martinez.
19
park, but they had a worker there, their whales were
20
there.
It wasn't their
21
So, again, they're being sort of notified.
22
issue of being so close to the whales, look what just
23
happened.
24
out of the water, depending on what park, maybe a week,
25
maybe two days, depending on how long it took for Mr.
What did they do?
CARLIN ASSOCIATES
The
The took their trainers
(216) 226-8157
1245
Scarpuzzi to come and talk to people about the incident,
and then they're back in the water again.
So, it would be our contention that this does show
that they disregarded the safety of their employees;
that they continued to rely on volumes of rules and
documents rather than really evaluating the hazard and
saying that this should not be permissible to allow our
trainers to be in harm's way.
So, it's our position that this activity does show
10
willful behavior, and in hindsight always sitting back
11
and talking about, "Oh, we could have done this, we
12
could have done that."
13
paper, maybe it looks good for some insurance company
14
that they're doing some risk analysis, but the bottom
15
line is that people's lives are at stake, and Sea World
16
did not take any real measures to try to change their
17
program repeatedly.
18
Your Honor, it may look good on
In 2006, in the Ken Peters incident, again, they
19
were out of the water, and then they returned their
20
trainers right back in the water.
21
that we talked about in open court through witnesses,
22
you had two situations where Kasatka behaved badly, and
23
they would say, "Well, you know what, we're going to
24
continue water work and we'll just work on a call-
25
back."
CARLIN ASSOCIATES
In other incidents
(216) 226-8157
1246
1
2
3
All this information that was at Sea World's

fingers tips, but they continued to ignore it.
JUDGE WELSCH:
What about what Ms. Gunnin was
arguing about Cal-OSHA?
involving the Ken Peters incident, and they concluded, I
guess, no citations; but merely some recommendations.
They did the investigation
Sure, Your Honor.
As it
relates to the Cal-OSHA, one, I would say that we don't
know the full details of that investigation, but it's my
10
understanding that part of that investigation was that
11
the emergency procedures related to Sea World of the San
12
Diego and how they responded in the situation with Mr.
13
Peters himself.
14
That was one situation that occurred, but simply
15
because you're not issued a citation does not mean that
16
you are absolved from trying to improve your operation.
17
It's our contention again that once on notice, they have
18
a prop, they have their employees exposed to this
19
hazard, and they haven't taken any steps to alleviate
20
those hazards.
21
and sending it around to the other Parks, getting
22
feedback, patting each other on the back about, "Oh,
23
you're doing a good job.
24
that precursor, next time we will take notice of this
25
particular act by the whale" is not enough.
And, simply writing an incident report
Oh, the next time, we'll see
CARLIN ASSOCIATES
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1247
The issue is that they're too close to the whales,
they're in the water with them, they cannot win over a
whale.
Ken Peters was just an anomaly.
He acted and he
kept his head in an extraordinary manner, and we're glad
he survived, but that's not going to be every trainer,
and Sea World needs to take steps in order to remove the
hazards that exist when trainers are in the water or at
pool ledges with the whale because the hazard continues
10
to exist, and this is not something new.
11
We heard the testimony of Mr. Scarpuzzi who said
12
even looking at they evaluated the Alexis Martinez
13
incident, it was commonplace.
14
wow, you wouldn't think a death could result from this.
15
So, they're being put on notice repeatedly about these
16
issues.
These were things that,
17
And then we also have Tilikum, and when they got
18
Tilikum, they knew he had already been involved in one
19
death.
20
all the details about the 1999 death, but, again, a
21
patron ended up dead.
22
and we're not trying to say that it is, but they still
23
had information that Tilikum is dangerous.
24
the Tili Talks, they're telling when you start, "Be
25
safe.
Then, he comes to the park, and we don't know
Of course, that's not an employee
They have
If you get too close to him and you get into the
CARLIN ASSOCIATES
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water, you're going to die."
enough to protect someone from killer whale?
Okay, is that really
And, then with all of that information, they let
Ms. Brancheau get this close to the whale?
hug him, she could kiss him?
She could
To me, Your Honor, it's just beyond imagination
that you would think that Sea World knowing all that
they knew about Tilikum would allow their trainers to be
that close to Tilikum.
10
11
I don't care how experienced
they are.
We don't deny that they have some form of a
12
trainer program, we don't deny that as the testimony has
13
come through the witnesses that, yes, trainers are not
14
being attacked every day by the whale.
15
their training, of course, has to be worked with because
16
it's not something that's happening every day.
17
bottom line is they knew that Tilikum was dangerous,
18
they're telling people as they start, "Oh, he's
19
dangerous, stay away from him unless you're on the
20
approved team."
21
Yes, some of
But, the
Then, I guess if you're on an approved team, that
22
somehow that makes you better than the other trainers
23
which really from the testimony you've heard is, yes,
24
what do they know?
25
about them, they have developed a relationship with
They have read the whales, they know
CARLIN ASSOCIATES
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1249
them, but that relationship does not protect you from
the unpredictable act which occurred here in this case.
So, it's our position with all this information,
Sea World turned a blind eye to safety and allowed their
trainers to essentially be in harm's way just for a
show.
evidence we have presented is plausible enough
information for Your Honor to consider and that this
case should not be dismissed.
10
11
12
13
And, it's our contention, Your Honor, that the
JUDGE WELSCH:
Ms. Gunnin, do you want to
reply?
MS. GUNNIN:
Yes, Your Honor, if I may just on
a few points that Ms. Howard-Fishburne raised.
14
First of all, with regard to the feasible
15
abatement, I think you asked a very pointed question
16
about the abatement, and Ms. Howard-Fishburne has given
17
the opinion that with regard to Tilikum, Sea World has
18
abated.
19
However, Mr. Grove testified that he is unaware of
20
how they're doing husbandry or other care for Tilikum.
21
Therefore, would it be the Secretary's contention that
22
when they are in the pool and they're in close contact
23
with Tilikum, and they're touching Tilikum and giving
24
him injections and other things with him, and there's no
25
barrier, that that is compliant.
CARLIN ASSOCIATES
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1250
JUDGE WELSCH:
The thing is, Ms. Gunnin, I
hear what you're saying, and I'm kind of troubled that
the Secretary's citation addresses performances.
think Mr. Black indicated that very early on, I think
the very first day, the first hour of our hearing.
I hadn't read the citations specifically the way
he addressed it, but it's the Secretary's position that
the citation only goes toward performances.
activities, the husbandry activities, the back pool
The other
10
activities, I'm not sure, or at least from Secretary's
11
position is not part the citation.
12
MS. GUNNIN:
And, Judge, to that I would say
13
what case are you aware of where a 5(a)(1) has been
14
bifurcated, and that a hazard that the Secretary is
15
claiming exists and is recognized by the employer only
16
exists under this scenario but doesn't exist under this
17
scenario.
18
So, if we have a fall protection issue and you're
19
on the 30th floor, that's a problem.
20
tenth floor, that's not a problem.
21
hazard, but we're going to say it's not a problem.
22
If you're on the
Well, it's still a
By trying to part them so closely, the Secretary
23
is attempting to do something that they've never done in
24
a 5(a)(1) case.
25
The hazard only exists under these circumstances, and
They've never said, "Here's the hazard.
CARLIN ASSOCIATES
(216) 226-8157
1251
we're not going to look at see if the hazard exists at
other times."
the employer, if the hazard is as alleged in the
citation, close contact with killer whales, and the
abatement is you do not have close contact with killer
whales unless you're behind a protective barrier, then
how do you bifurcate the two?
8
9
If it's a hazard, if it's recognized by
Secondly, on that issue, there's been testimony,

these incident reports, they don't all relate to shows.
10
If that's the Secretary's position, they need to
11
withdraw every piece of evidence that relates to
12
incidents that occur outside of the show because that
13
doesn't support their case.
14
I think this has been a clever attempt to change
15
the theory because they don't want to address close
16
contact that occurs at other times.
17
quintessential question of this whole thing is --
18
JUDGE WELSCH:
And a
I'm not sure that part was
19
investigated.
Your analogy about the fall protection
20
from the tenth floor or the 30th floor, I think is a
21
little bit different in this scenario.
22
do an investigation about the husbandry activities and
23
the behind-the-scenes activities, I'm not sure they
24
would have any basis to decide whether or not it's the
25
same activities in the shows versus the these other
CARLIN ASSOCIATES
If they didn't
(216) 226-8157
1252
1
2
activities.
MS. GUNNIN:
In all fairness, Your Honor, you
have not heard testimony from our vet, who was
questioned by the compliance officer.
that up so that would not be a fair representation that
they didn't look at the issue.
So, we can bring
JUDGE WELSCH:
Okay.
MS. GUNNIN:
But, going back to the citation
itself and the feasible abatement, the question of what
10
must the Secretary prove with regard to the abatement if
11
a company such as Sea World is engaged in an activity,
12
it's a legal activity, they're in the water with the
13
killer whales, it's permitted by the Government, and the
14
Secretary says you're not doing it safely, here's the
15
feasible abatement.
16
feasible abatement immediate is.
17
But, they have to proffer what the
In this case, they're not offering a feasible
18
abatement method to still do what they do.
19
saying, "You can't do what you do, you just can't do it,
20
you can't ever do it."
21
feasible abatement method.
22
Secretary is don't get in the water with the killer
23
whales.
24
25
JUDGE WELSCH:
They're
That's not an offering a

The statement by the
The evidence I've heard thus far
is since the accident, the trainers have been pulled out
CARLIN ASSOCIATES
(216) 226-8157
1253
of the water for all of the whales like they did with
Tilikum before, and have been operating outside of the
pools and have been able to perform the shows.
The shows have been going on, maybe not in the
same manner as the shows before.
I don't know if it had
any effect on their attendance or their ability to put
on the shows or any of those kinds of activities, but my
impression is that Shamu Stadium maybe in a different
configuration has been operating since the accident to
10
Ms. Brancheau, and shows have been going forward in
11
maybe a different format, in a different way not being
12
in the water, but at least the shows have been going
13
forward without any disruption that I've heard of to the
14
Company itself in terms of the ability to put on shows.
15
MS. GUNNIN:
Well, Your Honor, as Ms.
16
Howard-Fishburne opined, they're not in compliance with
17
regard to the other killer whales.
18
that they are in compliance with regard to the other
19
killer whales.
20
they do Tilikum, and that is not -- the Secretary is
21
taking an issue and saying, "You can't do that.
22
just can't do this.
23
"Here is a feasible abatement," and I think that is
24
stretching the limit of 5(a)(1).
25
to prohibit a Company from doing something.
She has not stated
She just simply stated treat them all as
You can never do this."
CARLIN ASSOCIATES
You
It's not,
5(a)(1) is not meant
(216) 226-8157
It's meant
1254
to provide a feasible abatement so the Company can
continue.
OSHA can't just say, "We don't know how you can do
it.
how you can safely do it."
should offer and actually they are required to offer a
feasible abatement method.
8
9
You're willfully doing it.
OSHA as an Agency, they
So, I would say that they should offer a feasible

abatement method to allow Sea World to continue with
10
water work at a minimum.
11
do it."
12
We can't help you with
It should be, "You just can't
Under that theory, back in the days before there
13
was a steel erection standard and 5(a)(1) was used to
14
prove the violation, then, the Secretary would have
15
said, "We don't know how you can erect that building.
16
We absolutely don't know.
17
shut down."
18
You cannot do it.
That wasn't how it worked.
You're
There were feasible
19
abatement methods proffered by the Secretary.
20
eventually, there was a standard promulgated, and it
21
worked that buildings were still constructed.
22
wasn't, "You can't do that."
23
And,
It
So, in this situation, it is, "You can't do this.
24
You can't ever again do water work."
25
of a feasible abatement method.
CARLIN ASSOCIATES
There's no offer
And, I think that's a
(216) 226-8157
1255
pretty strong recommendation by OSHA in this case
because when is that going to change, and is that going
to be the mandate now for (5)(a)(1)?
businesses now must adhere to is, "You're not doing it
safely.
We're not going to tell you how to do it
safely.
You can't do it."
Is that what all
That's a pretty strong power that OSHA will have
to shut down businesses when they decide, "You're not
safe, and we're not going to tell you how you're safe."
10
11
12
13
I would submit -JUDGE WELSCH:
Are you saying that Sea World
would shut down if they're unable to do water work?

MS. GUNNIN:
I think the practice that they're
14
engaged in which is presenting shows doing water work,
15
that hasn't happened, and OSHA is saying, "You can't do
16
that."
17
That has been the nature of their shows.
But, furthermore, OSHA will not say and has given
18
no opinion that the show as it has changed to, even
19
though they're not in the water, they are in close
20
proximity to the killer whales.
21
right next to the trainer, and there is no barrier.
22
during the show, there, in fact, is close contact
23
without there being a protective barrier.
24
25
The killer whales are

So,
So, OSHA is saying, "You can't do that show

either, but we're not telling you how you can do it."
CARLIN ASSOCIATES
(216) 226-8157
1256
So, they are saying, "You can't do that, we're not going
to tell you how you can do it.
protective barrier, but we're not going to tell you what
the protective barrier would look like."
is a killer whale we're talking about.
guardrail system that you're establishing.
that protective barrier look like?
testimony on what the protective barrier looks like for
the killer whale?
10
Nobody.
You've got to have a
Because this
This isn't a
What does
Who has offered
No one has offered testimony
on that.
11
JUDGE WELSCH:
I thought Mr. Scarpuzzi from
12
San Diego was using some kind of removable barrier that
13
he was talking about.
14
MS. GUNNIN:
He gave the opinion that it was a
15
removable barrier, that he didn't know what its purpose
16
was and that it didn't serve the purpose of not allowing
17
contact.
18
burden to address that.
19
that.
20
That's not what it served.
And, it is OSHA's
There's been no addressing of
But, furthermore, going back to the issue of the
21
show, it should be noted that the testimony about the
22
incident with Ms. Brancheau, that was not done during
23
the show.
24
of ceremonies, if you will, of that show testified that
25
the show had ended.
The trainer who was there who was the master
That wasn't an interaction that
CARLIN ASSOCIATES
(216) 226-8157
1257
happened during the show.
So, if the Secretary's case is all based upon
shows, that should be dismissed right now.
there is no testimony that that was done during the
show.
Because
And, furthermore, on the willful, I think we
disagree about what Exhibit C-6 means.
The Secretary
would say that's all of the bad reasons why you're
willful.
We would say that is the Company showing
10
everything they have done to analyze what they do.
11
I would disagree with the Secretary's position that
12
that's supportive of the willful.
13
So,
With regard to Loro Parque, the Secretary concedes
14
it wasn't our park, but it was disregarded.
15
at it, they considered it, and it wasn't just a common
16
thing.
17
an accumulation of many things that all happened.
18
didn't give the opinion that all of those commonplace
19
minor things as the Secretary has characterized them
20
would occur in conjunction, and that is something that
21
they have parched out of Mr. Scarpuzzi's words.
22
They looked
What Mr. Scarpuzzi testified to was that it was

He
He was surprised at the individual things and he
23
admitted in his testimony that it was all accumulated
24
and that led to what they believe happened.
25
So, it's not a situation where they ignored it,
CARLIN ASSOCIATES
(216) 226-8157
1258
but the parks at Sea World all commented on that, and
there has actually already been testimony in the record
from Ms. Flaherty Clark about the analysis that was
done, thinking about that, the consideration, and that
opinion is offered in the exhibit itself that talks
about the Loro Parque incident.
Company just disregarding it, the Company considering
and deciding that's not something that's going to happen
here.
10
So, it wasn't the
So, that's not plain indifference or reckless
disregard.
11
And, Cal-OSHA, to say, "We don't know how that
12
investigation went.
We don't know.
13
anything about it."
Well, they had the whole Cal-OSHA
14
file.
15
reviewed the Cal-OSHA file.
16
memorandum that was issued by Cal-OSHA.
17
memorandum is clear on its face.
18
incident, it talks about the analysis that was done.
19
this case, that is squarely fitting in with fair notice,
20
that is Miami Industries because that is OSHA looking at
21
an issue and analyzing it, giving an opinion and the
22
employer relying on what opinion.
23
important fact that Cal-OSHA looked at this very issue
24
and issued no citation.
25
We don't know
They got it as part of their inspection.
JUDGE WELSCH:
They
They have reviewed the

The Cal-OSHA
It talks about the

In
So, this is an
But, it says that Cal-OSHA, I
CARLIN ASSOCIATES
(216) 226-8157
1259
think that was what in 2008, 2006?
MS. GUNNIN:
It was issued in 2007.
JUDGE WELSCH:
Since that incident, Sea World
has -- I agree that Loro Parque is not part of the Sea
World, but there was some activity that Sea World was
involved in at Loro Parque, but since the incident
involving Mr. Peters and Cal-OSHA, there were two
fatalities involving trainers dealing with killer
whales, one at Sea World Orlando and the other in Loro
10
11
Parque, and they happened in fairly short order.

So, I don't know how that plays into it, but it
12
puts Sea World on a little higher notice of certain
13
activities.
14
I understand what Mr. Scarpuzzi said in terms of
15
his investigation into the Loro Parque that taken by
16
themselves, they were not unusual incidents.
17
opinion was, the way I understood it, as a group, these
18
little incidents in and of themselves are not unusual.
19
As a group, that's what he thought led to that accident
20
in Loro Parque.
21
But, his
On the other hand, as far as Ms. Brancheau is
22
concerned, I have not heard that Sea World has come up
23
with any rationale or activity or incidents that led to
24
that accident to Ms. Brancheau; that there were no
25
factors, at least as I have heard so far, that were
CARLIN ASSOCIATES
(216) 226-8157
1260
missed or should have been taken into consideration or
any changes made.
Now, I understand I haven't heard your case yet,
but there hasn't been anything as far as the record thus
far shows with regard to Ms. Brancheau's accident.
the other incidents, there has been at least some
information and some analysis done coming to some
conclusion as far as I understand as to what happened
and what triggered the accident or the incident, unlike
10
All
Ms. Brancheau, I didn't hear anything.
11
MS. GUNNIN:
Well, Judge, in terms of notice,
12
certainly Ms. Brancheau's accident couldn't be notice of
13
that accident.
14
we're here because of that incident, because there was
15
actually only one fatality prior to, not as Sea World
16
Parks.
17
and what was going on with them and their injuries and
18
incidents.
19
So, when you mention two fatalities,
I do think you have to look at Sea World Parks,
With regard to Ms. Brancheau, as you're aware,
20
there are multiple decisions issued for a fatality to
21
occur, that doesn't mean there's a violation of the Act.
22
The fact that there is a fatality does not prove it, and
23
there can be accidents.
24
free.
25
and it doesn't mean you have to have a risk free
The Act is not meant to be risk
The United States Supreme Court has opined that,
CARLIN ASSOCIATES
(216) 226-8157
1261
workplace.
You can have the accident.
What you have heard is you've heard about the
experience with Tilikum.
Now, it sounds great to talk
about here's what happened in '91; here's what happened
in `99.
patron of the park.
There is not evidence that it was a
patron of the park.
In fact, it's known that it was not
a patron of the park.
I would correct the statement that it was a
It was a trespasser.
But, the incident in '91, you have heard that's
10
why they took special care with working with Tilikum.
11
They didn't disregard it.
12
like all the rest.
13
because they developed SOP's that were specific, because
14
they had special people who were higher-level trainers
15
that were permitted to work with them, higher-level
16
trainers who had more skills, that that is used as a bad
17
fact rather than a good fact, which is we are
18
considering his history, we are considering things about
19
him.
20
They didn't say, "He's just
Let's treat him the same."
But,
But, what you have also heard is all the
21
interactions they had with Tilikum, he was not a whale
22
that they threw fish from afar and said, "good luck."
23
They had lots of close interactions.
24
intubations of this whale which meant they put their
25
arms down his mouth.
They did gastric
He had every opportunity to grab
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people.
right next to him, touching him.
how to do that safely and in all those 19 years, nothing
happened.
They had countless examples of people standing

They had protocols for
He behaved perfectly.
They had no incidents for 19 years with that
killer whale.
They had no reason to believe that what
happened on February 24, 2010, was going to happen.
And, in fact, Ms. Brancheau, she was not just your run-
of-the-mill killer whale trainer.
She was one of the
10
premier killer whale trainers.
11
She had great expertise, and people with great expertise
12
there can be an accident.
13
and it is truly unfortunate but Sea World didn't regard
14
her as nothing.
15
She was regarded highly.
That's the unfortunate thing,
They regarded her with great respect.
But, the fact that she had an accident, though,
16
does not mean that the Company was willfully
17
disregarding all that.
18
and thousands and thousands of interactions with this
19
particular whale, close up, placing their hands down his
20
throat, touching him, working with him, right next to
21
him, no protective barrier.
22
believe they needed it.
23
that they were working safely around him, and for
24
19 years, that proved to be true.
25
They had 19 years of thousands
There was no reason to
They had a good faith belief
And, yes, there was a tragic accident on
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February 24th, but that doesn't put them on notice of
the accident.
with him.
They didn't know.
They had a history
So, we would submit that with Tilikum, if you look
at all of that evidence and you look at all of that
record, there was no reason to believe that what was
going to happen, happened.
evidence presented that Sea World had reason to believe
that.
10
And, there's been no
In fact, the Secretary in the Secretary's case has
11
chosen to call multiple people from Sea World to
12
testify, and none of those people have testified that,
13
"yes, we knew that was going to happen."
14
What they testified is, "We have special
15
precautions for working around him."
16
on day one and work with him.
17
Tilikum.
18
Tilikum, and that selective group worked with him for
19
19 years without an accident.
20
willful, we would say that is the Company showing
21
regard, showing care and attention to work safely around
22
this particular killer whale.
23
24
25
You didn't come in
You might never work with
There was a very selective group working with
So, rather than being
So, I would submit again, there has not been

evidence of willfulness in this case.
JUDGE WELSCH:
Ms. Gunnin, I think you have
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made some valid points that at this juncture for a
motion to dismiss, the Secretary's burden of proof is
just in terms of making a prima facia showing, and I
think the rule also says all inferences have to be drawn
in favor of the nonmoving party.
consideration, I am denying the Respondent's motion to
dismiss.
denied.
9
10
11
12
And taking that into
So, the Respondent's motion to dismiss is
Ms. Gunnin, is there anything further before you

call your first witness?
MS. GUNNIN:
Nothing further, Your Honor.
We
are prepared to call our first witness.
13
JUDGE WELSCH:
Then, call you first witness.
14
MS. GUNNIN:
Your Honor, we call Jenny Mairot.
15
---o0o---
16
JENNIFER A. MAIROT,
17
18
19
JUDGE WELSCH:
Ma'am, for the record, would
20
you state your full name, spell your last name and state
21
22
THE WITNESS:
Jennifer Ann Mairot,
23
M-a-i-r-o-t, and I live at 12945 Reeves Road, Winter
24
Garden, Florida 34787.
25
JUDGE WELSCH:
Your witness, Ms. Gunnin.
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MS. GUNNIN:
---o0o---
DIRECT EXAMINATION
BY MS. GUNNIN:
Q.
Ms. Mairot, where are you employed?
A.
Sea World.
Q.
Where do you work at Sea World?
A.
I'm a supervisor of animal training at Shamu
Stadium.
10
Q.
And, if you could, after high school, would
11
you describe what your educational and/or employment
12
background has been?
13
A.
14
1986.
15
in 1986.
16
Q.
17
18
I've worked for Sea World since March of
So, I graduated in '85 and started with Sea World
Where did you start your employment with Sea
World?
A.
I started at the Whale and Dolphin Stadium, I
19
was there for about nine months, and then I was moved to
20
Shamu Stadium.
21
Park for about a little over a year or so, and then I
22
was asked to help open the Texas Park.
23
I was at that stadium in the Florida
I went to Texas for six years.
Most of that
24
time at Shamu was at Whale and Dolphin, and then we did
25
a lot of cross training, cross utlage there, and then
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came back to Florida in 1993.
I was at Sea Lion and
Otter for about nine months and have been and Shamu
Stadium since then.
Q.
You have been at Shamu Stadium since 1993 in
Florida?
A.
In Florida, yes.
Q.
And, during your time when you came to Shamu
Stadium in Florida in 1993, what level of trainer were
you?
10
A.
Actually, I was at Sea Lion for about nine
11
months, and then got moved.
12
beginning of `94 is when I ended up at Shamu.
13
14
15
16
17
18
19
Q.
So, probably the end of `93
When you came to Shamu at that time, what
level of trainer were you?

A.
Senior trainer, I think, was what my title
was at that time.

Q.
How did you progress to senior trainer?
were the levels that you achieved?

A.
For me it went -- I'll just tell you what the
20
titles are now.
21
supervisors, and then supervisor.
22
more progressions to where I am right now.
23
24
25
What
Q.
Now, they're called leads, assistant

So, I had just two
And, there have been some changes in terms of
terminology of trainers over the years?

A.
Yes, and there's also been another level
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inserted there, Senior 1, which didn't exist at the time
that I was coming up.
3
4
Q.
So, you now go from a senior trainer to a
Senior Trainer 1 and then you would be lead?
A.
Lead and then supervisor.
Q.
And, your current title is supervisor.
How long have you had that role?
8
9
A.
Probably 11 years, 12 years; somewhere in
there.
10
Q.
And, during your time at Shamu as a
11
supervisor, have you had an opportunity to work with
12
trainers who come into the area?
13
A.
Oh, yes, ma'am.
14
Q.
If you could, describe to the Judge what
15
kinds of interactions do you have with trainers in the
16
area?
17
A.
My position is a front line leadership
18
position.
19
with the trainers on deck.
20
80 percent of my day is spent doing that, training
21
trainers to work with the animals.
22
So, basically, my responsibility is to be

I would say, probably
So, when a new trainer comes in, I spend time
23
with them when they first come in, meeting and greeting
24
them if I'm in that day or my first day back, and I help
25
assign the coaching teams that will be responsible for
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them, and then I'm available poolside all the time to
talk with them, dialogue with them, help bring them
along.
Q.
all the time.
A.
Right.
Q.
So, do you have other managers at your level
And, you obviously can't be at the stadium
or below that help you?
A.
Yes, the leadership at the stadium consists
10
of one person that's above me, myself, and we have
11
Kristin, Dave, Brian and Daniel.
12
leads, and they are actually part of the management
13
team.
14
lot of weight, be able to make decisions and
15
responsibilities.
They're considered
They're also on line, and so they would carry a
16
The six of us together really work
17
cooperatively to make sure that there's a lot of checks
18
and balances as far as decisions that are made with the
19
trainers, who does what, who is ready to progress.
20
watch over the animals, make sure that the animals are
21
learning what they need to learn, but we make decisions
22
concerning their next steps, where animals will be
23
placed in the show, what behaviors would be next on
24
their docket as far as the training process.
25
We
So we work cooperatively, although I'm able
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to bring things forward and influence in that position.
There's always that check and balance of there's six of
us, and if anybody says, "Um, let's wait," or we think
there is an opportunity for dialogue and to make a
decision as we move forward as a group.
6
7
JUDGE WELSCH:
When you say "six," you're
referring to --
THE WITNESS:
Kristen.
JUDGE WELSCH:
Who is the one above you?
10
THE WITNESS:
Craig Thomas.
11
JUDGE WELSCH:
And his position; his title is?
12
THE WITNESS:
Assistant curator.
13
JUDGE WELSCH:
So, you're talking about Mr.
14
Thomas, yourself and then Kristen, Dave and Brian as the
15
leads?
16
17
THE WITNESS:
Kristen, Dave, Brian and Daniel,
yes, sir.
18
JUDGE WELSCH:
So, that's the six?
19
THE WITNESS:
Those are the six leaders in the
20
area, yes, sir.
21
JUDGE WELSCH:
22
BY MS. GUNNIN:
23
Q.
24
25
Thank you.
Ms. Mairot, what is your reporting
relationship to Kelly Flaherty Clark?

A.
She's my curator.
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So, I have open access to
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her.
Craig is in between us in the chain of command.
Q.
And, how does Mr. Thomas' role work with you?
A.
Could you be more specific?
Q.
How does the assistant curator role work over
the supervisor at Shamu Stadium?
interaction?
A.
What is the
We're the salary team members at the stadium.
So, Craig and I work together very cooperatively, very
side by side.
We will make decisions together
10
concerning the area.
Of course, if there's a tie
11
breaker, either Kelly will make the tie breaker or Craig
12
will, just depending on what the decision is and what
13
the range of impact is, but Craig and I pretty much talk
14
about almost every aspect of the stadium as far as
15
maintenance, the whales, the people, we talk all the
16
time about what's happening in the area.
17
Q.
And, you knew Dawn Brancheau, correct?
18
A.
Yes, I did.
19
Q.
And what was her position?
20
A.
She was my partner.
Q.
Ms. Mairot, when you discussed the training
21
22
She was a supervisor as
well.
23
of people coming into the Shamu Stadium area, if you
24
could, outline for the Judge, a new trainer coming into
25
the area, brand new, how do they progress up the chain?
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1
2
What is the career progression for that?

A.
Would you like me just to talk about the
levels, or would you like to know kind of what's encased
in each level?
Q.
6
7
If you could, describe the level and what
would require you to able to go up to the next level?

A.
Okay, so when a person first comes in,
they're called an apprentice trainer, associate trainer
-- it's changed a lot over the years -- their basic
10
responsibility at that point in time if they're at Shamu
11
Stadium is to learn how to care for the area.
12
Their responsibilities are learning opening
13
and closing procedures, learning about the whales, being
14
able to identify them, learning about show support,
15
things like setting the buckets, breaking the show back
16
down, lines, any kind of gating activity or support
17
around spotting, being out around the pool, watching
18
over guests; those types of things.
19
That level usually takes a minimum of a year,
20
and during that time, they are also working with their
21
coaches, and they're learning the basics of behavior,
22
like in the terminology aspect, asking a lot of
23
questions.
24
25
So, during a show, it wouldn't be uncommon

for me to come up next to a new person and say, "Hey, so
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did you see this?
is how this behavioral term applies in this situation";
just kind of watching.
and learning that way, learning through talking,
learning through reading material, reading all our
manuals, reading books on behavior, reading the animal
profiles, and then seeing how those things actually work
together.
What do you think about this?
This
They're doing a lot of watching
That's about a year.
The next level is
10
trainer level, and at that level, the expectation would
11
be to take those things that they have been learning
12
about and begin to start applying them with leadership
13
and guidance.
14
At this point, we typically will take that
15
person and assign them an animal team.
16
that's done with the six of us.
17
we will take that person and what we have learned about
18
them in that first year and what we know about our
19
whales, and we'll take them and put them with an animal
20
that we feel is the best pairing, and where they'll
21
begin building a relationship with that animal and
22
learning how to apply all the things that they've been
23
talking about.
24
25
And, again,
We talk about it, and
That will be where they will be side by side

with somebody.
They will be mentored, they will be
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coached, they will be critiqued.
their interaction with the whales they will be walked
through.
say, "Hey, this is Katina.
line up, this is how you do this," taking them and
really being right there, right with them, talking to
them.
8
9
Every little bit of
It's not uncommon for me a take a person and

This is how you ask her to
In that time, they'll also start training

behavior, actually shaping behavior from ground zero all
10
the way to completion.
And, again, that's done with
11
their coaches, with the leadership team.
12
to write out a behavior plan.
13
into practice all the things that they have learned.
They learn how
They're actually putting
14
The next level is the senior trainer level.
15
At that level, the expectation would certainly be that
16
they would be able to shape behavior on their own, and
17
they may even begin to interact with naive animals at
18
that point.
19
something new, like interacting with a naive animal,
20
that would be highly mentored, highly coached.
21
they're doing the things that they've learned in their
22
trainer level, then the coaching becomes less intense
23
and more just watching and then giving feedback, not so
24
side by side but more letting them practice, letting
25
them take those things that they know and do them over
And, again, any time they're starting
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and over and over.
JUDGE WELSCH:
and senior trainer?
What is the time between trainer

How much training?
THE WITNESS:
Those are minimums, sir.
JUDGE WELSCH:
7
8
9
Usually, about a year and a half.
If I understand, what did you
mean by when you called it a naive animal?

THE WITNESS:
nothing.
Like a baby, an animal who knows
Ever once in awhile during my career, we've
10
gotten whales in from other marine life parks.
11
Typically, those animals have a lot of learning to do or
12
relearning.
13
So, teaching those animals the very basics of how
14
to learn, what our learning process is.
It's one thing
15
to teach an animal how to do a bow that already knows
16
how to learn.
17
animal how to come over and touch your hand, how to
18
start the learning process and how to enjoy learning.
19
And, it's really fun.
20
think, is work with the naive animals.
It's a whole other issue to teach an
It's the part I like the most, I
21
But, that is a little bit more of a refined skill
22
set and so when you go out -- and we have a whale named
23
Katina.
24
very experienced animal.
25
her and you're new, she has a lot of grace for you.
She's been with us a really long time, she's a

So, when you're working with
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has trained more trainers than you can even imagine.
So, she understands the learning process, and she
understands how to work with people that are kind of new
and maybe a lot of mistakes.
When you're working with a baby, they don't know
the learning process.
So, it's kind of the difference between working with
someone in a grad program versus kindergarten.
9
10
11
They don't have any ground work.
BY MS. GUNNIN:
Q.
Ms. Mairot, you have done a good job of
explaining up to senior trainer which is where we are?
12
A.
Okay.
13
Q.
If you could carry that on to the next level
14
of senior trainer, how many years and what that job
15
would be like?
16
A.
I believe it's a year and a half -- it might
17
even be two -- but, then, the next level is Senior 1.
18
In that level you're certainly expected to be able to
19
shape behavior on your own, to be able to problem solve,
20
be very proactive in behavioral management.
21
At that point, your skill set is very
22
refined, and you will also be doing coaching newer
23
trainers, leading them through, teaching them the basics
24
of behavior, having influence and input over how that
25
skill set is coming along for newer trainers, definitely
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taking the lead roles in shows.
be at an extremely level, interacting with other
departments so that your people skills should be
refined, your behavioral skills should be refined, your
showmanship skills.
the crew that you're watching to see if they're ready
for the leadership roles.
should be kind of in the wings waiting to take that next
step.
10
11
JUDGE WELSCH:
14
It's basically a place where that's
They should be ready, they
From senior trainer to Senior
Trainer 1?
12
13
Your showmanship should
THE WITNESS:
sir.
I think it's a year and a half,
I could be a little bit off on these time frames.

JUDGE WELSCH:
Am I understanding you correctly,
15
a Senior Trainer 1, are they the only ones that actually
16
take the lead in the shows?
17
THE WITNESS:
No, sir.
That is a person that
18
you would expect could step into any role in the show at
19
any time.
20
Their skill set is --
JUDGE WELSCH:
Typically, if I went to a show,
21
a typical show, who would be or do you have a role or
22
does Sea World have a role as to what the level is of
23
the person that's doing the show; putting on the show?
24
25
THE WITNESS:
Yes, we do have some rules
concerning that, and I would a make sure my terminology
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isn't confusing you.
meant is that's a person that I would say, "I can put
you in the show at any point in time, and you can handle
it," no matter if the whales are doing great or if the
whales are not doing great, you can work any whale at
any point, any time.
When I say a lead role, what I
So, that's a person that their skill set is so
strong that they have enough things to pull from, they
can adapt to anything.
It
10
doesn't mean somebody else can't play that role.
They
11
just may need more coaching going into it, or you may
12
look at it and go they're learning how to do that, they
13
did everything right, but their showmanship wasn't that
14
great.
So, I may have to go back and coach that.
15
JUDGE WELSCH:
Let me just ask you this way.
16
THE WITNESS:
Sure.
17
JUDGE WELSCH:
Would there ever be a situation
18
where an associate trainer would take the lead in the
19
show?
20
THE WITNESS:
No, sir; no, sir.
21
JUDGE WELSCH:
Would there ever be a situation
22
23
where a trainer would take the lead in a show?

THE WITNESS:
They would be able to learn the
24
different parts of the show, but they would not be
25
running the show, and I think that's where my
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terminology might have gotten you a little confused.
lead is always running the show.
3
4
JUDGE WELSCH:
There's one person that is
running the show?
THE WITNESS:
In charge.
JUDGE WELSCH:
And that's the lead person.
THE WITNESS:
Right.
JUDGE WELSCH:
And, then, you have spotters and
other people who might be around the pool?
10
THE WITNESS:
Yes, sir.
11
JUDGE WELSCH:
Okay, I'm only focusing on the
12
13
14
15
person that's doing the lead part of the show.

THE WITNESS:
and I'm sorry.
That's where I got you confused
Let's go back.
When we go out to do a show, there's always an
16
assistant supervisor or above participating in the show.
17
So, there's always Dave, Kristin, Brian, Daniel, myself
18
or Craig, every single show, and we are in charge.
19
We're in charge.
20
part, we are in charge.
21
It doesn't matter who's doing what
If I'm taking a person who is a trainer level and
22
I'm going to say, in our current show, there's a part
23
called side-by-side for a girl, and it's kind of the
24
heart of the show.
25
drives the show.
It's a real emotional part, it
You have to really be able to pull it
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1
2
off.
So, I'm going to take a person who is a trainer
level and teach them how to do that.
going to fumble.
too strong, they're going to be concentrating so much on
that, they're not going to have the whole package.
At first, they're
Their showmanship is not going to be
But, after they're through their trainer level and
they hit that senior, they're going to keep getting
better and better and better.
By the time they hit that
10
Senior 1, I should be able to go, "You're in," and I
11
don't even have to blink that you've got it wrapped up.
12
I'm still watching.
13
ultimately making the calls and responsibility, but that
14
person's skill set has taken them to a level that
15
they're able to do that.
16
JUDGE WELSCH:
17
by "side by side"?
18
THE WITNESS:
19
I'm still in charge and I'm still
For the record, what do you mean
Side-by-side is just the name of
a show sequence that we have in our show.
20
JUDGE WELSCH:
Can you describe the sequence?
21
THE WITNESS:
Yes, it's the part where there's
22
a female trainer with an adult whale, and then either a
23
male or female trainer with one of the calves, and the
24
music, talks all about how we work side by side, how we
25
interact and live side by side, and they do the
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sequence.
the trainers are very in synchronicity, the whales are
in synchronicity, so it's just a segment of our show.
4
5
JUDGE WELSCH:
Things are working,
I understand, I'm just trying to
get --
6
7
It's very all together.
MS. GUNNIN:
I think what the Judge -- if you
don't mind, Judge.
JUDGE WELSCH:
BY MS. GUNNIN:
10
Q.
No, go ahead.
I think what the Judge might be trying to
11
understand is where the whales and the trainers and how
12
is that interaction going on?
13
side-by-side.
14
A.
They're at the slide-out.
15
Q.
And, if you could describe what the slide-out
16
They're at the
If you could determine, where is --
is?
17
THE WITNESS:
Have you ever seen our pool.
18
JUDGE WELSCH:
I have seen pictures.
19
20
I know
what you mean by slide-out.

THE WITNESS:
It's the part near the audience
21
that is the shallow part where we can stand.
22
in the middle of the main show pool, and sort of looks
23
like a dock but it has some water that we can stand in.
24
BY MS. GUNNIN:
25
Q.
So, it's
So, the trainers are in the slide-out?
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A.
The trainers are in the slide-out.
Q.
And where are the killer whales?
A.
Right at the edge of the slide-out and moving
4
5
6
around the pool as we direct them to.

THE WITNESS:
confused.
JUDGE WELSCH:
BY MS. GUNNIN:
Q.
10
11
I'm sorry for getting you
I get that a lot.
I think you walked through Senior Trainer 1.
What would the next level be?

A.
The next level is lead.
And, at that point,
12
you have session two around where you can be left
13
responsible for the area, and so you have all that skill
14
set and that's the point where you can open and close
15
the area on your own.
16
Q.
Now, with regard to the reading materials
17
that you mentioned, what are the reading materials that
18
new trainers read, and are there materials that trainers
19
read yearly?
20
A.
Yes.
We have department manuals and area
21
manuals that people are required to read, and they
22
contain assorted information.
23
like what your uniform is, and what you need to show up
24
to the park in and leave the park in, clothing, and some
25
of it is very specific, like animal profiles would be
CARLIN ASSOCIATES
Some of it is very basic
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this those manuals.
We would also have different types of
protocol, safety protocol would be in those manuals.
How to do certain things like open the stadium, close
the stadium, all those procedures.
in those manuals, and the trainers are required to read
them.
8
9
MS. GUNNIN:
Those would be found
Judge, may I approach the
witness?
10
JUDGE WELSCH:
11
BY MS. GUNNIN:
12
Q.
Yes.
Ms. Mairot, I'm going to show you what has
13
been marked as an exhibit and entered into this case,
14
and I'm going to direct your attention to C-1 and ask if
15
you can identify that?
16
A.
This?
17
Q.
Yes.
18
A.
This is the animal training SOP, Sea World of
19
Orlando.
20
Q.
21
Is that one of the manuals that you were
testifying about?
22
A.
Yes, ma'am.
23
Q.
Is that required reading for all trainers at
24
Shamu Stadium?
25
A.
Yes, ma'am.
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Q.
How often do the trainers read that manual?
A.
Annually.
JUDGE WELSCH:
Ms. Brancheau's accident?
THE WITNESS:
BY MS. GUNNIN:
Q.
Was that in effect at the time of
Yes, sir.
I'm going to direct your attention to
something that's been marked as Exhibit C-5.
A.
Would it be possible for me to get my
10
glasses?
11
Q.
Absolutely.
12
A.
I have them in my purse.
13
Q.
I should have asked you before.
14
A.
What am I looking at?
15
Q.
This is what's been labeled as Exhibit C-5.
16
A.
Okay.
17
Q.
Can you identify that?
18
A.
This is an orientation checklist that we
I'm so sorry.
I apologize.
19
would give to a new person when they would come into our
20
stadium.
21
Q.
22
23
24
25
And, there's lots of the checkoffs to that.

If you could just describe to the Judge, what
does what mean?

A.
How does that work for a trainer?
Okay, when a trainer is coming into our
stadium, we know in advance that they're coming, and the
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leadership team and I will sit down, and we will decide
on a coaching team.
A coaching team is comprised of two or more
Senior 1's, a lead is above them, and I oversee all the
coaching teams and Craig oversees me.
This particular document would be something
that the coaches would print out and have ready for the
person when they come in on the first day.
see, there are very specific goals for the very first
As you can
10
day that they're there.
11
and we would go over each of those items and begin their
12
orientation to the stadium.
13
Q.
Most of that is safety-related,
Ms. Mairot, before we leave C-5, just one
14
question about that.
15
checklist.
That was a long list, the
Was that all done in one day?
16
A.
Oh, no, ma'am.
Can I go back?
17
Q.
Yes.
18
A.
I believe it's even broken down on here.
19
has day one, the new hire opening.
20
post week one, educational information.
21
time.
22
class requirements, this could take months to do all
23
this.
24
done the first day.
25
It
It says week one,

This will take
This is something that -- I mean, even these
The only thing is the stuff on day one, that's
Q.
Can the trainer simply check off by
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themselves that they have done these things?
A.
No, ma'am.
Their coach has to do it, yes.
Q.
And, if you could turn now --
JUDGE WELSCH:
Would this have to be completed
-- I assume you're talking about what you call the
associate trainers come in when they're first hired.
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Does this have to be completed
9
10
11
before they move from the associate trainer to the

trainer position?
THE WITNESS:
Sometimes, sir, somebody will
12
come into our area that is already a level higher.
13
Like, they may come in as a trainer level or from
14
another area, so in that case, obviously, not.
15
The expectation -- if you came in as a brand new
16
trainer, the expectation would certainly be that these
17
would be completed before your promotion, yes.
18
JUDGE WELSCH:
But, even somebody coming in,
19
let's say, from another park already at the trainer
20
level, do they still have to complete this checklist?
21
THE WITNESS:
Oh, yes, sir.
They just may move
22
through things quicker because of their experience; but,
23
yes, they would have to do all these things, absolutely.
24
BY MS. GUNNIN:
25
Q.
Ms. Mairot, if you would turn to Exhibit C-7.
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A.
Okay.
Q.
If you could identify what has been marked as
Exhibit C-7?
A.
This is Taima's profile.
Q.
Okay, if you look through --
MR. BLACK:
What page are you on?
The first
page?
JUDGE WELSCH:
BY MS. GUNNIN:
10
Q.
Yes, if you could look at all of C-7.
11
not just simply one.
12
exhibit previously.
13
A.
It's not just her profile.
I know you haven't seen this
Oh, is it all the animal profiles?
I'm
14
sorry, these are animal profiles for a variety of
15
animals.
16
page.
17
Q.
It's
I'm sorry, yes, I just looked at the first
You can take the time to read, but are those
18
the animal profiles of the killer whales that were
19
housed in I think it's '09 at Sea World of Florida?
20
A.
Are you talking the whole year, or are you
21
talking about right before Dawn's -- because Takara
22
wasn't there.
23
Q.
Okay, which --
24
A.
Takara.
25
Q.
Okay, Takara was not there.
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That would have
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been a profile -- these were, I think, identified
marked--
A.
These animals have all been at our stadium,
yes, ma'am.
Q.
Did you say Takara was not there in 2010?
A.
I don't believe she was.
Q.
So, with the exception of Takara, were those
all the killer whales at Sea World of Florida in
February of 2010?
10
A.
Yes, because Makio wasn't born yet, and we
11
have both the babies, Tura and Nalani.
12
would be correct.
13
Q.
Yes, ma'am, that
Since February of 2010, those would not be
14
representative of all the killer whales.
15
whales have died since that time?
Some killer
16
A.
Yes, ma'am, and Makio was born.
17
Q.
So, Makio was the new killer whale, and the
18
two killer whales that you lost since those profiles
19
were written are?
20
A.
Taima and Kalina.
21
Q.
So, the animal profiles that you're looking
22
at, if you could describe for the Judge, how do those
23
relate to a trainer working at Shamu Stadium?
24
25
A.
One of the things about my job is I get to
teach people about the whales.
CARLIN ASSOCIATES
Not only do I teach them
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about general principles of behavior and how they work
and how they work together, but I get to teach them
about the unique individual personalities of each
animal.
These animal profiles are one aspect of that.
We ask the trainers to read these, and then when we go
out pool side and I'm interacting with a particular
animal, I will bring up things that are in the profile
and say, "See this?"
Whether it's a mark on them that
10
makes it a characteristic of them, like Tina has a super
11
white chin right here, different things like that, or a
12
particular thing that that animal has a strength or
13
weakness in.
14
So, we learn all these different things so
15
that there are many ways we approach the learning
16
process.
17
on, we do observations, and all these things give the
18
trainer a whole picture and a firmer base of who that
19
animal is, how they fit into the pod, what their
20
behavioral strengths and weaknesses are.
We do reading, we talk about it, we do hands
21
And, that's just the very beginning of
22
learning because when you're interacting with the
23
whales, you have to consider that particular animal and
24
how they fit into the pod.
25
job that I spend a lot of time dialoguing side by side
So, that's the part of the
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with the trainers about these things but expound it in
more in depth as we're pool side and interacting with
the animals and seeing things occur.
Q.
So, is there any expectation that a trainer
would just read the profile on their own and then go
work with a killer whale?
A.
8
9
Absolutely not.
First of all, we never interact with killer
whales by ourselves.
Never.
We always have a spotter
10
with us.
11
what we do.
12
their eyes and ears and what they're seeing and what
13
their observations are just as important as what yours
14
are.
15
The safety of numbers is a crucial part of

Understanding that that person next to you,
The other part is the process is very, very
16
refined and very slow and steady.
17
everybody go out and just take the whales for a test
18
drive."
19
do things in a certain order, and we do things in a
20
certain way, so that the animals remain safe and the
21
trainers remain safe, and there's a logical process to
22
it.
23
It isn't just, "Hey,
That's not the process at all.
It's very -- we
So, reading this is just a very small part of
24
actually understanding, for instance, who Taima was and
25
knowing how to interact with her in a way that was
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1
2
productive and safe for her and for the trainer.

Q.
And, if you had a situation where a trainer
wasn't progressing quite the same, do they automatically
move up the career ladder?
A.
No, ma'am.
Q.
Who makes that decision about their
7
8
9
progression?
A.
Well, there are multiple layers of people who
have input.
The coaches would say, "Hey, I think this
10
person is doing great."
11
daily working shoulder to shoulder with these people,
12
and we have weekly meetings, and usually, I would say,
13
once every other week, we probably talk about the entire
14
staff, how are we doing?
15
The leads who are again on line
How are they progressing?
So in those meetings, those kinds of concerns
16
would be brought up.
17
give the trainer an opportunity to figure out what their
18
learning process is and ways they can communicate with
19
them, and they can actually master the skills.
20
We would try and address them and
And, then, Craig and I ultimately have to go
21
to Kelly and say -- and she's going to play devil's
22
advocate.
23
isn't just automatic, no.
24
25
Q.
She's going to say "Why?
Prove it."
So, it
And, with regard to doing water work, the
citation talks about water work and dry work.
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Do all
1291
trainers do water work?
A.
No.
Q.
And if you could, describe what that means.
A.
Water work is interacting with the whales in
the pool, you being actually in the pool with them and
interacting with them.
No, all trainers do not do water work, and
even the trainers that are doing water work don't do all
the different aspects of water work, nor do they do all
10
the water work with all the whales.
11
segmented.
12
Q.
It's all very
And, if you can could just give an overview,
13
how are those decisions made about a trainer that's
14
going to do water work?
15
stadium as an apprentice.
16
eligible to do water work?
17
18
A.
So, they've begun at the

At what point are they
At the trainer level, the rules say they're
eligible, but that doesn't mean they will.
19
The process has changed over time.
So, I'm
20
going to talk about the process and how it was like
21
in --
22
Q.
February of 2010?
23
A.
Right, around that time.
24
25
At that point in time, we were required to -there had been this segment where there was this
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grandfathered group in, and then anyone who came in new
was required to pass the swim test, and then that whole
process began changing where they had to pass this one
test, and then we had like 90 days to look at the person
and see did we think they were going to be a person that
we would want to move forward into water work.
Those were lots of decisions, but basically
my job was to put them in situations where I could see
how they interacted with the whales and give them
10
feedback concerning that.
11
six of us, make a recommendation to Kelly of whether we
12
thought that person would be ready to move into the
13
water or not.
14
Q.
15
And, we would as a group, the
And, with the water work, would they work
with just any the killer whales in water work?
16
A.
No, ma'am.
17
Q.
How did that work?
18
A.
Remember how we talked about we would assign
19
an animal team?
That's the whale that we would say,
20
"Okay, you're going to be on Katina's team," and
21
although they would continue observing all the whales,
22
all the different training sessions and how the pod
23
works together, they would spend their time interacting
24
with the whales with Katina, and they would learn about
25
her, and they would build a relationship with her, and
CARLIN ASSOCIATES
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they would spend time teaching her, playing with her,
relating with her, doing shows with her.
And, then, when it came time for the water
work, that would be the animal that they would initiate
water work with, the animal that they have spent time
and already built a rapport with.
7
8
So, that's how we would decide who they would

be in the water with.
Q.
And, ultimately, would the trainer be able to
10
work in the water with more than just one killer whale?
11
And, not necessarily at a time, but at any different
12
times, would they work with more than one killer whale
13
and be in the water?
14
A.
Yes.
And, that would go back to the
15
different levels of experience that we dialogued with
16
about earlier.
17
has been at our stadium to be able to interact with a
18
variety of whales in the water, whales that were
19
experienced and naive animals, yes, absolutely.
20
I would certainly expect a Senior 1 who
MS. GUNNIN:
Judge, I'm looking at the time
21
here, and before I get into the next area, would it be
22
appropriate to take a morning break?
23
JUDGE WELSCH:
24
break.
25
you.
Yes, let's take our morning
Be back at 25 until.
CARLIN ASSOCIATES
We're adjourned.
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Thank
1294
3
4
JUDGE WELSCH:
Mairot, I'll remind you, you're still under oath.
THE WITNESS:
Okay, thank you.
JUDGE WELSCH:
Ms. Gunnin?
MS. GUNNIN:
Thank you.
BY MS. GUNNIN:
Q.
10
Ms. Mairot, before the break, you were
talking about the animal profile.
11
A.
Yes, ma'am.
12
Q.
And, if you could, describe for the Judge
13
14
Ms.
what an incident report is?

A.
An incident report is when there's been a
15
level of aggression between a whale and a trainer or a
16
whale toward the trainer, we document that, and it's
17
shared within the Sea World Parks.
18
19
Q.
And, during your time at Shamu Stadium, have
you read incident reports?
20
A.
Yes, ma'am.
21
Q.
How are those used as part of the training
22
23
process of a new trainer at Shamu Stadium?

A.
Well, the incident report is a more extreme
24
-- what to do on a daily basis.
25
with the whales, we're going to talk about it, and we're
CARLIN ASSOCIATES
Every time we interact
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going to say, "This is what you can learn, this is what
you can take, this is take-away."
So, when there's an incident in any park that
we review, we'll sit down and say, "This is our
take-away.
what we will do differently given a similar situation."
This is how we handle this, this is how we would not get
to that point where this is aggression.
places we could have taken the animal and go a different
10
This is what we learned from this.
This is
These are the
direction or chosen a different path.
11
So, we do that on a smaller level.
Every
12
single show we're going to talk about, "Oh, next time
13
let's do it this way," or "Let's add a slap in here and
14
help that whale know to jump in this spot."
15
But, when you have an incident, you know
16
you're talking about something that's more serious, but
17
you're still looking for the take-away.
18
learn?
19
that I know so that when I'm either -- if I'm a brand
20
new trainer so I'm learning about the whale or if I'm a
21
leader like me, so I'm taking my team through this
22
safely.
23
What did I
How can I add this to my repertoire of things
So, I'm teaching them how to see the
24
precursors, notice them way early out and take the road
25
that's going to take them around that so we don't have
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1
2
an incident.
Q.
And, on the incident report, is there an
expectation that a trainer read every incident report
since the reports have been accumulated by the Company?
A.
I don't think so, no, ma'am.
Q.
How did you determine what incidents they
7
8
9
need to be familiar with, a new trainer?

A.
Well, when an incident occurs in their
tenure, typically, that will come through the system and
10
it will get talked about.
At a minimum, it will get
11
talked about.
12
reads every single report, but things are discussed, and
13
what's more important than actually reading the report
14
is talking about it, talking about these types of
15
things, like -- may I give you an example from
16
yesterday?
I wouldn't necessarily say that everybody
17
Q.
Yes.
18
A.
We were working with the whales in a group
19
setting, and all the trainers except one took their
20
whales out, and that one trainer continued to interact
21
with their whale, and I said, "I want you to take her to
22
the back," and she did.
23
And, I talked to the team afterwards and I
24
said, "you know what, after we have done a session --"
25
it was probably like an hour and a half into a show
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rehearsal -- I said, "I've seen before when whales can
get a little irritated if they don't go up with the
group and come back out a little later into the session.
So, let's just take her up."
We didn't see anything.
This wasn't
something that nothing happened yesterday.
Kayla was
fine, she was completely relaxed, but in my repertoire
way back here, I remember a time, and I was like, "Let's
just not even go there.
Let's just take her up, and we
10
can bring her back out in ten minutes and she can go out
11
and do a session, and it's not a big deal."
12
That's what you learn.
Those are the things
13
you pass on.
14
there, and I shared that information with them, and they
15
added it to their box of things they could pull from and
16
say, "Oh, I remember this and I'll not go in that
17
direction.
18
So, I had a group of 13 trainers standing
I'll go in a different direction."

So, that's when you're seeing things way far
19
out here, and that's what you're learning, that's what
20
you're learning from those reports, that's what you're
21
learning from the dialogue.
22
Q.
So, would it be fair to say that the incident
23
reports become part of the training; become part of the
24
mentoring?
25
A.
Oh, absolutely, just like these are part --
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the incident reports are part of the dailiness part, the
stories are part, yes, it all fits together and makes --
the learning comes in from many different streams,
absolutely.
5
6
Q.
How about after -- do you recall Ken Peters
being involved in an incident with Kasatka in San Diego?
A.
Yes, I do.
Q.
And, do you recall there being any kind of
9
10
communications with the trainer of the Shamu Stadium

after that incident?
11
A.
Absolutely.
12
Q.
If you could tell the Judge what happened
13
after that at the Shamu Stadium in Florida?
14
A.
Concerning the incident report itself?
15
Q.
Concerning the incident report,
16
communications to the trainers, and any changes that
17
would have been made.
18
A.
After Peter's incident, we watched the video.
19
They did have some underwater video footage.
20
that.
21
pulling the net and how that net was directed and used
22
in that particular incident.
23
We watched
We watched some surface video where they were
There was dialogue at length about what
24
possibly could have led to Kasatka becoming that
25
frustrated, and there were changes made at Shamu
CARLIN ASSOCIATES
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Stadium.
that point, we got a net system that was on a reel
versus up to that point our net had been in this like a
box that was on wheels.
The reel made it much quicker to be able to get it to
the pool side.
was much quicker than getting it out of the box.
began training and doing ERP's on a regular basis.
We were provided with underwater cameras at
It was very heavy, cumbersome.
Actually getting the net off the reel

We
JUDGE WELSCH:
ERP?
10
THE WITNESS:
Emergency response plan.
11
We implemented doing a swim test annually.
12
there were a lot of changes that came because of that.
13
BY MS. GUNNIN:
14
Q.
So
How about any communications changes for the
15
trainers working in the back areas?
Any additional
16
communication devices so the trainers could talk to one
17
another?
18
A.
Oh, we have an intercom system that allows us
19
to communicate and be able to say, you know, "This is
20
what I see," or whatever, yes, ma'am.
21
Q.
How does all of that relate to safety?
22
instance, the net, what was the point of that?
23
that going to improve the safety?
24
25
A.
For
How was
Well, the idea of the net is basically when
the net goes in the water -- did you see the Kasatka
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incident?
Did you see the footage?
JUDGE WELSCH:
Yes.
THE WITNESS:
So, when the net went in the
water, Kasatka immediately went with that, and that's
exactly what we wanted.
with the whale's behavior and make a change so that we
can have a moment to intersect and make some decisions
ourselves as far as how to get out of that situation.
9
10
We wanted to interfere, impact
BY MS. GUNNIN:
Q.
You mentioned practicing the ERP.
11
that mean practicing?
12
after Mr. Peters' accident?
How often would you practice
13
A.
I think it was three times a year.
14
Q.
What does that involve?
15
A.
Do you mean like the --
16
Q.
What would be the practice?
17
18
What does
What would you
do to practice ERP?
A.
We would hit the alarm, and it would be
19
timed, and then the team would come from wherever they
20
were and execute releasing the net, pulling the net.
21
would pretend there was a person in the water, we would
22
dive in, get them, roll them, bring them over to the
23
backboard, put them on the backboard.
We
24
You know, we would come up with a scenario,
25
like there's whales in this pool but not in this pool,
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so we would practice having to move the whales just kind
of simulating what it might be like.
Q.
As part of that practice and part of the ERP,
you mentioned diving in.
Would you dive in when the
killer whale was still in the pool?
A.
Not in the ERP situation, no, ma'am.
Q.
And, that would be for all of the killer
whales.
You would move the killer whale?
A.
We would move the whale, yes, ma'am, yes.
10
Q.
And you practice that three times a year?
11
A.
Minimum, yes, ma'am.
12
Q.
Any other things that you would practice
13
about in doing practice for the event of an emergency
14
situation?
15
A.
Well, on a monthly basis, we would do our
16
rolls, our water extrication roll, so a person would be
17
face down, you would dive and roll them, we would put
18
them on a backboard.
19
our trot line, which is a line that has air on it, so we
20
would as a team practice pulling that across the pool.
We would practice what's called
21
Q.
Let me stop you on the trot line.
22
A.
Sure.
23
Q.
If you could describe for the Judge what
24
25
would that mean, air on the line?

A.
Okay, it's a long rope and every so often,
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maybe like every six feet, there's a small scuba bottle
about that big around (demonstrating), and if you were
underwater, you could unhook it and breathe off that;
emergency air.
Q.
the trot line?
A.
So, you would practice that monthly deploying
Yes, and we had life rings.
We would
practice throwing them and catching them.
So, you would
either be in the water catching the ring and getting
10
pulled in or throwing it, and we would practice throwing
11
scuba koozies and catching them underwater.
12
13
14
Q.
What's the difference between a scuba koozie
and a trot line?

A.
The scuba koozies are scuba tanks that are
15
bigger, they're maybe this big around (demonstrating),
16
and they were encased in like a neoprene so they had
17
some buoyancy in the water.
18
regulator attached to them where the first one I was
19
telling you about, it just had the mouth piece.
20
would breath right off of that; whereas the scuba koozie
21
had a little regulator.
22
23
24
25
Q.
They actually had a
So, you
And, the video cameras, what was the purpose
of the video cameras with regard to enhancing safety?

A.
Well, at that point when we were in the water
so much of the interaction was underwater, and so the
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ability as the spotter to be able to see what was
occurring underwater.
long someone should be underwater for every particular
behavior, so being able to watch and see how the run
underwater was occurring was very beneficial.
You definitely had a sense of how
Q.
That would been something that the spotter
would look at?
A.
Oh, yes, ma'am.
Q.
Where are those cameras located in the
10
Florida park?
11
A.
The cameras are -- I know there's one on
12
either slide-out, there's one at stage that points
13
towards -- I mean, either end of the pool at the hug
14
dunk.
15
JUDGE WELSCH:
Hug dunk?
16
THE WITNESS:
Hug dunk.
17
Sometimes our
terminology as kind of funny.
18
BY MS. GUNNIN:
19
Q.
So, you were describing in the front pool?
20
A.
Yes.
21
Q.
That's also known as the A Pool or show pool?
22
A.
The show pool, right.
23
It has a lot of
different names.
24
Q.
So, the cameras were located there?
25
A.
There's ones on the corners that shoot in,
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there's one under the slide-out, and there must be ones
under stage because you have a slide-out view.
3
4
Q.
Are there
cameras underwater?
5
6
How about any of the other pools?
A.
Underwater viewing had some cameras, yes,
ma'am.
Q.
located?
A.
That was the Shamu Close-Up, the Dining With
11
Q.
Sometimes that's referred to as G Pool?
12
A.
G Pool, yes, ma'am.
13
Q.
And then you mentioned E Pool?
14
A.
E Pool, I think, had one camera that went
10
15
16
And underwater viewing, where is that
pool.
into it from a little window.

Q.
So, the other pools -- maybe it's a good time
17
to describe -- what is the use of all those different
18
pools?
19
to killer whales?
20
21
How do you use them as a trainer as it relates
A.
Well, every pool -- wow, that's a big
question.
22
Q.
We actually have an exhibit.
23
JUDGE WELSCH:
Why don't you look at C-2.
24
MS. GUNNIN:
Yes, Your Honor.
25
THE WITNESS:
Okay, so this is what you're
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looking at too, you and me together?
under that C-shaped tarp?
MS. GUNNIN:
The pool that's
Judge, before she goes too far,
just so the record is clear, can we have her mark the
exhibit that is in evidence with these pools?
6
7
8
9
JUDGE WELSCH:
Just put her
initials when she identifies something.

Your Honor, can I
approach so I can see where the markings are?
10
JUDGE WELSCH:
11
BY MS. GUNNIN:
12
Q.
13
That's fine.
Yes, when she starts marking.
I'm going to hand you, actually, the Court's
exhibit that's been marked C-2, and a red pen.
14
A.
So write nicely?
15
Q.
So, if you could identify what is known as A
16
17
18
19
Pool or the show pool, the main pool?

A.
Would you like me to write on the water or
next to it?
Probably next to it would better?
JUDGE WELSCH:
Why don't you just draw a line to
20
the pool with an arrow and off to the side if you're
21
talking about the A Pool.
22
23
THE WITNESS:
Okay, so this is A Pool.
that work, sir, like that?
24
JUDGE WELSCH:
25
BY MS. GUNNIN:
Does
Does that work for you?
That's fine.
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Q.
If you could identify B pool?
A.
(Witness Complies).
goes this way.
Q.
And C Pool?
A.
(Witness Complies).
This one circle.
It
So that's this other one
counter to the C Pool.
Q.
Do we have a D Pool?
A.
Yes, this one is D Pool.
Q.
Is D Pool known by any other name?
10
A.
Med pool.
11
JUDGE WELSCH:
Med pool?
12
THE WITNESS:
Yes, sir, this smaller pool right
13
here that looks kind of white.
14
BY MS. GUNNIN:
15
Q.
And then E Pool?
16
A.
E Pool is one that has the white rectangular
17
tarp over it.
18
Q.
Yes.
19
A.
Yes, which is this pool but it's kind of --
20
21
22
Can I just mark it right here, Carla?

And then we have an F pool?
it's this pool.

Q.
And, then, I think that G Pool may have
already been identified?
23
A.
Shamu G Pool.
24
Q.
And you would agree that is --
25
A.
Oh, yes, that's G Pool.
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Q.
All right, very good.

So, with regard to these different pools, if
you could describe what kind of activity is taking place
in the different pools?
A.
Okay, well, I'll just start with like the
core.
where we do our shows.
8
9
10
The front pool, most people would say that's
The back, the next two pools, B and C, are

pools that we use during the shows so that we can move
the animals through.
11
E Pool and G pools are pools that are used
12
for housing whales, and G Pool is also to be used for
13
the Dine With experience.
14
However, with that said, it's really
15
important that each pool maintains a high degree of
16
reinforcement value, and you do that by using a variety
17
of different types of interactions in each pool.
18
don't do just shows in the front pool, as you don't do
19
just medical procedures in the med pool.
You
20
It's really important that the animals learn
21
and experience each pool in a variety of different ways
22
so that that pool is fun and reinforcing because of the
23
variety of interactions they receive in each pool, the
24
variety of social interaction with the trainers and
25
different types of things that we do with the animals.
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Q.
What would be the problem of doing, for
instance, all medical procedures in D Pool or doing only
shows in A Pool?
4
5
Leading.
JUDGE WELSCH:
Overruled.
Go ahead.
BY MS. GUNNIN:
Q.
Go ahead, you can answer.
A.
Well, here's the problem.
If you only do
10
medical things in the med pool -- do you have a dog,
11
sir, you can take to the vet?
12
the vet and the only thing that happens to that dog
13
there is bad things, and you never take the dog in the
14
car to pick up your kids from school or go to the dog
15
park or just go for a ride, your dog will not want to
16
get in the car because it is associated with painful,
17
negative things.
18
If you take that dog to
And, if you are so lucky as to get your dog
19
in the car and get him to the vet, they're going to
20
fight you every step of the way.
21
So, it's really important that the car
22
experience is a variety of things.
23
to school, to the ballpark, to the dog park, all these
24
other things, your dog is going to readily jump in the
25
car and go to the vet with you.
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If you take your dog
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And if you're a wise trainer and owner, if
you reinforce or take your dog to the vet every once in
awhile for something fun, your dog is going to walk into
the vet, no problem.
Same kind of concept.
When I'm teaching a
whale about the med pool, I don't want their first
experience or their primary level of experience to be, I
go in there and they work on me, they do something to
me.
10
11
I want it be I go in there and I have fun with my
trainers.
I go in there and play with other whales.

So, what we do is we teach them -- I'll take
12
them in and give them a toy to play with.
13
them in and give them a big rubdown, I'll take them in
14
and have the vet come and feed them a couple of fish.
15
I'll take them in and lift the floor and put the floor
16
back down and we're done.
17
Do you see what I mean?
I'll take
It's that variety of
18
different experiences that maintains the animal's
19
ability, willingness and desire to do those things for
20
us voluntarily.
21
The same with the front show pool.
22
did was shows, then it wouldn't maintain it's
23
reinforcement value, but we teach them out there, we
24
play with them out there, we rub them down out there.
25
We have a variety of different types of interactions
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If all we
1310
that we do, and so when the whale is going out there,
they don't -- of course, they know when they're doing a
show because they can hear the music, they can see the
audience.
pointed to the front pool, they don't know if they're
getting an exercise, a play time, a relationship, a
learning.
know what they're learning until they get out there in
the session again.
10
But, in a training session, when they get
If they're getting a learning, they don't
That's a crucial part of what we do.
It's so
11
important that the animals have variety and that the
12
animals have different experiences with different
13
trainers in different pools.
14
Q.
And why is that variety so important?
15
A.
Because it keeps them following us, it keeps
16
them looking to us to meet them and that helps with the
17
safety; that keeps it safe.
18
Q.
You mentioned something about precursor a
19
little bit earlier.
20
what does that mean for you?
21
A.
If you could explain to the Judge
A precursor is something that the animal is
22
going to show you before they exhibit a higher level of
23
frustration or aggression.
24
Frustration leads to aggression.
25
Behavior follows a chain.

It's very simple.
So, you know, most people have a dog or they
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have seen a dog snarl or growl.
if you keep pushing me, I'm probably going to bite you.
And, most human beings will respond.
them, they will make a change in their behavior.
will back off, they'll give them room, they call for the
owner.
Those are precursors to
If a dog snarls at
They
They will respond to that because we as
people know in interacting with dogs, that is a
precursor to this dog is getting frustrated or they're
10
scared or they're confused and the next thing if I keep
11
on this same path is I'm going to get bit.
12
would agree that's a pretty reasonable assumption from a
13
dog.
14
15
16
17
Most people
The whales all have precursors, and they show

them to us, and our job is to take note of them.
Q.
Before we get too far off topic, let me
direct you to a couple of other documents.
18
I'm going to point your attention to
19
something that's been marked as Exhibit C-11 and ask if
20
you can identify what that document is?
21
22
23
A.
This is was part of the associate trainer
notebook, and the title of the page is Rules of Thumb.

Q.
And, is that meant to be a comprehensive
24
document for a trainer to know how to work with killer
25
whales?
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A.
No, ma'am.
Q.
What is that meant to be?
A.
These are things that over the years are
words of wisdom.
They're not golden rules, they're
rules of thumb, they're things to take note of, they're
things to add to your box.
learned that either the whales like, they don't like,
they work, you know, something to do or not to do.
haven't read them all recently, but, yes, some of them
They're things that we've
10
are things to do and some of them are things not to do,
11
yes.
12
Q.
Now, I'm going to direct your attention to
13
Exhibit R-1 and ask if you can identify what that
14
document is?
15
A.
Animal Training Department Manual.
16
Q.
So, what is that manual and who is supposed
17
to read it?
18
A.
I'm sorry, I didn't hear that.
19
Q.
What is that manual?
You have identified it,
20
but what does it mean when it's saying Animal Training
21
Department Manual?
22
A.
This is the manual for our entire department.
23
It has basic procedures in here for -- this is the one I
24
was mentioning to you that talks about uniforms,
25
grooming, attire, how to handle show delays; you know,
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if we have lightning in the area.
do reviews, describes the career ladder.
So, this goes over our entire animal training
department.
Shamu Stadium.
6
7
8
9
It talks about how we
This isn't necessarily specific just to
And, I think your other question is,

everybody is supposed to read this.
Q.
Now, I'm pointing your attention to something
that's called Exhibit R-2, and ask if you can identify
10
that document?
11
A.
Yes, this is Shamu Stadium Area Manual.
12
Q.
So what is the Shamu Stadium Area Manual?
13
A.
This is the manual that is very specific to
14
Shamu Stadium.
15
in here apply specifically to our area.
16
Q.
So, the things that would be contained
So, when you testified previously about all
17
of the manuals that a trainer must read, would that be
18
the manual that you have been testifying about?
19
A.
Yes, ma'am.
20
Q.
Before we got back to the manual, jumping
21
back to precursors --
22
A.
Okay.
23
Q.
-- how do you train the new trainer at Shamu
24
25
Stadium to recognize precursors?

A.
Well, there's lots of ways.
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One of my
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favorite ways is if I see one is to show them.
what it looks like.
are?
looks like?
that vocal?"
See that?
See how big her eyes
That's what it looks like.
"This is
See what her back
See how high she is in the water?
Hear
Those are all things that I would take a
trainer and walk them over to the pool and say, "Look,
here it is.
looks like."
10
You can see it right here.
This is what it
Of course, different precursors are you can
11
see them on video, you can read about them.
12
there are ways, but my favorite way is to show them.
13
14
15
16
17
Q.
I mean,
Does every precursor that you would show a
trainer result in an incident report?

A.
Oh, absolutely not.
Most don't, especially
if we're doing our job.

Q.
How about the killer whales themselves?
Are
18
all the killer whales that are housed at Sea World of
19
Florida identical?
20
A.
No, ma'am, they are not.
They're all unique.
21
Q.
And, with that uniqueness, how do you work to
22
train a new trainer to understand the uniqueness of
23
those different killer whales?
24
25
A.
Well, I think we've dialogued a little bit
about that.
We definitely use animal profiles and the
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mentor program, the coaching program to do that.
But, it's not that unique of a concept.
mean, many people are associated with, you know, having
two of the same breed of dog at home.
those are very unique animals, and they recognize that,
or two of the same types of birds or three of the same
type of birds.
8
9
And, obviously,
You know, people recognize that animals,

although they may be of the same species, have unique
10
personalities and things that they like, don't like,
11
quirks, things about them.
12
uncommon.
So, that's not that
Most people seem to grasp that quite readily.
13
Q.
And, how do you go about the training of a
14
killer whale?
15
use at Sea World?
What kind of methodology is it that you
16
A.
17
reinforcement.
18
And, we do things in what's called approximation steps,
19
small steps.
20
process should be fun.
21
Well, all our training is based on positive

I'm sure we've dialogued about that.
The whole point is that the learning
So, we take them through -- if they're going
22
to learn a particular behavior, it's broken down into
23
tiny steps, and we go through each step so that the
24
animal is successful or on the way.
25
that positive frame.
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That keeps it in
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The whole point of what we do is to have
positive, safe interactions with the animals, and we do
that through those different techniques of positive
reinforcement, reinforcement variety, and we also -- the
teaching process, the coaching process is what is able
to carry those concepts through, because when a person
begins to interact with the whale, they're not just
reinventing the wheel.
who knows that animal who has interacted with them, who
They're going out with somebody
10
has proven to our upper leadership that they know how to
11
teach the concept, teach about those animals.
12
They're paired up with that person, they go
13
out, and they're walked through that step by step by
14
step.
15
there just winging it.
16
talked out, and rehashed when it's over.
17
each time.
18
19
20
They're not out on their own.
Q.
It's all very thought out,

They learn
What does positive reinforcement mean as a
training technique?
A.
They're never out
Basically, it's a pretty easy concept.
21
Reinforcement increases the frequency of behavior.
22
Positive reinforcement is something that you add to that
23
environment that's going to increase the frequency.
24
25
We encompass that as a holistic term, but

basically, it means when the animal does something
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right, we give them something that will increase the
frequency of that behavior happening again.
food, we can use toys, we can use a variety of different
things that we have discovered that they seem to enjoy,
like a hose on their back or ice cubes or visual
changes, addition of another animal that they enjoy the
company of.
8
9
We can use
All these things are at our disposal.

Basically, your imagination is your limit.
We can make
10
a change as long as it's not something that the vets say
11
you can't give them.
12
pumpkin or something like that.
13
that's already approved.
14
at any point in time for the animals when they are
15
performing correctly.
16
17
18
Q.
But, I mean, anything
You can provide those changes
What if the animal does not perform a
behavior correctly?
A.
Like, you can't give then a
What, if anything, do you do?
We do what's called an LRS.
It's basically
19
three seconds of neutral response, and we after that
20
have the option of going on to something else, repeating
21
the same behavior or terminating the session.
22
Q.
And, if you could, give us an example of what
23
that would look like?
If we were watching you training
24
a killer whale, and it did not do what you expected,
25
what would an LRS look like?
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A.
That's it.
Q.
If you could describe --
A.
It's just three seconds of neutralness.
There's not a particular stance, there's not a
particular movement, there's not a particular -- we're
not glaring at them.
nothing for three seconds.
we go on.
9
10
11
Q.
It's just neutral.

That's it.
It's just
One, two, three,
Why have you found that that helps with
training a killer whale?

A.
Consistency will decrease the frequency of
12
behavior.
13
it, consistency will decrease it, and that's something
14
that we can all do the same.
15
It's very simple.
So, it's simple.
So, while change increases
The LRS is just a very
16
consistent thing that we can all apply that the animal
17
over time understands their opportunity for
18
reinforcement is in a particular response to that
19
neutralness, and then we can move on from there.
20
Q.
And, what about the trainers making mistakes
21
when they're working with killer whales?
22
thought about any training that's needed to prepare the
23
killer whales for that?
24
25
A.
Absolutely.
Is there any
We do a lot of stuff.
One of
the very first things that we'll teach an animal when
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they're learning is what's called desense.
And,
basically, when a trainer is interacting with the animal
in the water and they fall off, the animal's next
opportunity for reinforcement is to go into desense, and
that's the thought process we basically put into
everything.
It is, okay, just like I just said about the
LRS, the animal did the behavior wrong, but there is an
opportunity for reinforcement.
The opportunity for
10
reinforcement is I'm giving you your LRS, you stay calm,
11
I can reinforce you.
12
for responding correctly.
13
the way we have our training set up, there's always a
14
way the animal can get reinforced.
15
dead end.
16
can set in because there's no opportunity for
17
reinforcement.
18
And, they do get reinforced

So, there's always a way --
They're never at a
They're never at a point where frustration
And, then, there's the whole thing about the
19
precursors.
20
taught my team, if I'm working with the animal and
21
they're frustrated, there's nothing wrong with me
22
saying, "Thank you for showing me you're frustrated.
23
I'm going to leave you alone now."
24
25
We can -- I've done this before, and I have
I don't want them to hide that.

to show me that.
I want them
There's also the opportunity when you
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make a mistake, like in the water.
If I was doing a
ride and I slipped, and I landed on them and put my
finger in their blow hole, and they stay calm, I could
get out and go, "Thank you.
for you, and then we can either go on with the show or
you can be done.
appreciate you working with my frailties as being a
human being," because we are going to slip, we are going
to fall, we are going to make those little mistakes.
I'm going to make a change
We can be done with the show because I
10
And teaching the animal to show us when they're a little
11
frustrated or teaching them to handle us being not
12
perfect, that's how we keep that safety net nice and
13
wide around us all.
14
Q.
So, are there any other things you can think
15
of involved when training the killer whale?
16
a little bit about desense.
17
that process a little bit more?
18
A.
You talked
If you could walk through
Well, basically, desense comes in many forms.
19
One of the first things that we would teach them is how
20
to swim at the surface of the water along the perimeter.
21
That's what we would consider our desense perimeter.
22
And, while they're doing that, you may have
23
somebody who is splashing in the water, and we're going
24
to expect that animal to go by that trainer and stay in
25
their perimeter.
That's a very entry level position of
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desensitization.
At some point in time, that trainer may
actually fall in the water and that animal is asked to
continue on past them and not interact with them at all.
And, then, as they continue to progress, the trainer may
actually be on their back and fall off of them.
again, their next opportunity for reinforcement is don't
turn around and go back to the trainer.
going, staying calm, and listening for the call-back.
10
And,
Just keep on
Another aspect of that is being in the water
11
in the middle of the pool where you're not along the
12
perimeter.
13
doesn't matter what your trainer is doing, come back to
14
stage, we want you to come back to stage.
15
We have a tone that basically says it
So, when that sound is played -- we practice
16
that over and over and over -- when the sound is played,
17
come back to stage, come back to stage and get
18
reinforced.
19
well.
20
21
22
Q.
So, that is also part of that process as
What is the importance of the tone and come
back to stage when we call you to stage?

A.
Well, as a spotter, it's really important
23
that at any point in time, you can stop the activity in
24
the pool.
25
"Everybody come back to stage," and if I'm watching
You can almost like reset.
CARLIN ASSOCIATES
You can say,
(216) 226-8157
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somebody in the pool, and I thinking, "You know what,
I'm not liking what I'm seeing over here.
ask that whale to come back to stage.
them to get out of the pool, come back around to stage,
let's talk."
I'm going to
I'm going to ask
We'll have communication, and then we can
decide from there what the next step is going to be.
So, that call-back tone -- that's what it's called, a
call-back tone -- is just an opportunity for us to say,
10
"You know what, we're going to give you an opportunity
11
for reinforcement back here at stage," and then we can
12
make a decision from there.
13
the trainer in the water or we can ask the trainer to
14
get out or whatever.
That way, I can go back to
We can make a decision from there.
15
Q.
And, has that call-back tone been successful?
16
A.
Yes, it has.
17
Q.
Why is it successful?
18
A.
Because it holds a high level of
19
reinforcement.
20
not used only when they're doing something wrong.
21
used mostly when they're doing something right.
22
Q.
It's used at a variety of times.
in a frustrated state?
24
successful?
A.
It's
How about when you see a killer whale that is
23
25
It's
Has the call-back tone been
It can be, yes, ma'am.
CARLIN ASSOCIATES
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Q.
Have you seen it be successful?
A.
I have, yes.
Q.
With the desense that you do with the killer
whales, does what also play into how you train the
killer whales to allow trainers to work in the water
with them safely?
A.
Oh, yes, ma'am.
Q.
Walk us through that process.
A.
Can you ask your question a little more
9
10
11
12
How does that
work?
specifically, please?
Q.
If you're training a killer whale to be
13
tolerant of a person in the water with the killer whale,
14
how would you go about doing that?
15
A.
From training like a baby whale?
16
Q.
Yes, training a young whale.
17
A.
Okay.
18
19
Wow, that's a good question.
I'm just
trying to think, where do I start?

Again, we go back to always remembering that
20
the learning process has to be fun.
21
the animal to understand that while they're learning,
22
there's lots of opportunity for reinforcement.
23
So, we're wanting
If I'm going to teach a baby whale the
24
beginning of water work, if I have a mother that's in
25
the water, I'm going to utilize her as well because they
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learn a lot through observational learning, and she will
help coach the baby as well.
That will speed the process along, the calf
will do more things right.
don't, I'm probably going to start in shallow water,
maybe in the slide-overs which are in that front pool --
they go from one of the back pools to the front pool --
and we're going to -- the very first thing we're going
to teach is how to go away from me, how to do the call-
10
11
Learning will be fun.
If I
back.
So, you're sitting with me, the sound is
12
going to play, another trainer is going to be this far
13
and say, "Come here, baby," and when the baby moves,
14
we're going so say, "That is awesome," and we're going
15
to have a big party for them.
16
All those safety things, we're going to do
17
that first so where the baby can hit that call-back, hit
18
that call-back.
19
to do it, and then we're going to start that on the
20
perimeter because they already know the sound, so I'm
21
riding, I fall, and we're like this close, you and me.
22
You and I are working a session.
23
"Baby, come here," baby leaves me, you hit that sound
24
that they already know is a good sound, and, yes, I'm
25
getting reinforced for leaving my trainer and leaving
He knows how to do that, he knows how
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them be.
So, that is the beginning.
You don't just
dive in the pool and start letting them push all around.
The first thing you do is you teach them how to interact
with you correctly, how not to bump you, how not to hit
you with their flukes on the way when they're leaving
you.
8
9
Other things like don't burp on me, don't

breathe on me.
All these things, it's etiquette, it's
10
manners.
11
be gentle with us, to keep your space, don't crowd me,
12
don't get in on my chest, stay out here, give me room.
13
That's ground work, and that's all towards that how to
14
interact with us safely.
15
We teach them how to have manners with us, to
If I have a baby whale in here, I can't
16
maneuver.
17
then there's room, there's room for me to adapt and
18
adjust, and there's etiquette, he's not going to
19
accidently push me too hard or bump me.
20
Q.
If I teach them, this is my personal space,
So, how about for husbandry procedures and
21
medical procedures?
22
as it relates to those?
23
killer whale trained so that they can --
24
25
A.
What is the importance of training

Is it important to have the
Yes, absolutely.
We can teach them to do just about everything
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that you can do at the doctor, we can teach them to do
voluntarily, and having an animal that would do it
voluntarily astronomically increases your chances of
being able to care for them.
If they're not well and you're having to
stress them out even more by doing things involuntarily
by manipulating them, that's going to add to their
stress level and could potentially lead you to even more
problems.
10
So, yes, being able to care for an animal
11
while they're sick and have them still give you a fluke
12
blood without having to drop the water level and pulling
13
that on them and do all kinds of other things that you
14
would need to do to get that, if they didn't know how to
15
do it voluntarily is unquestionably the right thing to
16
do.
17
Q.
And, what are these types of husbandry
18
procedures, necessary procedures that you regularly do
19
with killer whales?
20
A.
We weigh them, we take blood samples.
21
Q.
And, if you could, when you're describing
22
23
those, when you weigh them, how do you do that?

A.
When we weigh them, we actually have a scale
24
that is like a cargo scale, and we ask them to slide up
25
on it, and it reads out to within 20 pounds of their
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actual weight.
We can take a fluke blood, so we ask the
animal to roll over and give us their flukes, and the
veterinarian withdraws a small sample of blood from one
of the veins in their flukes.
from our lactating mothers, we can take urine samples
from our animals.
We can take milk samples
Do you need me to describe how we do that?
We take a urine specimen cup, and we ask them
to slide up on their side, and we present the cup to
10
their genital region and collect the urine.
11
a fecal sample by placing a small tube in their anus and
12
extracting a fecal sample.
13
them to slide up.
14
and put their jaw over the side of the pool, like right
15
here (demonstrating) so that we can put the x-ray panel
16
there and bring the machine in super close to take the
17
x-ray.
18
drilling out their teeth.
19
which is sticking a tube down their throat.
20
21
22
23
We can do x-rays by asking
They really have to slide up close
We can do dental work, including flushes and
Q.
about.
We can take
We can do gastric tubes,
Describe the gastric tube that you're talking
How would you do that?
A.
The gastric tube is about that big around
(demonstrating).
24
JUDGE WELSCH:
25
BY MS. GUNNIN:
How
big is that?
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Q.
And, describe the gastric tube that you're
talking about.
A.
The gastric tube is about that big around.
Q.
Can you describe that?
A.
You tell me.
Q.
Four to five inches in diameter maybe?
A.
About the size of a tennis ball.
Q.
Okay.
A.
And, we ask the whale to sit up.
How would you do that?
I don't know.
My personal
10
preference is if they're in A Pool that's deep enough
11
that their tail can hang all the way down because it
12
relaxes their hole.
13
they have to be like this (demonstrating).
14
easy.
If they're in the shallow pool,
15
Q.
When you're saying, "like this"?
16
A.
Where their jaw is tilted up.
It's not as
It's easier if
17
they can actually have their head up and their mouth
18
open.
19
And, you take the tube, you can get on one
20
end, and you -- so you have to put your hand in their
21
mouth, and you take the tube to the base of their throat
22
and feed the tube down into their throat.
23
you can either extract a stomach sample or you can put
24
something in.
25
in, so, you know, the tube can go both ways.
And, then,
If you needed to put medicine in or water
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Q.
Prior to February of 2010, were all of the
killer whales that were at Florida trained for that
procedure?
A.
Not all of them, no.
Q.
Who were the whales that were trained for
6
7
8
9
that procedure?
A.
Tilikum was trained for it and Kalina for it,
Tina I believe was in process.

Q.
And, for those whales that were trained for
10
it, you actually did that procedure on those killer
11
whales?
12
A.
Oh, yes.
Yes, ma'am.
13
Q.
Once?
14
A.
Well, Tilikum, there was a point of his life
Twice?
How many times --
15
when we were doing that twice a day for years to give
16
him water.
17
Kalina, mostly we did it -- she had an
18
illness that we had to give her water.
19
gastric tube.
20
Q.
And, the killer whales don't automatically
21
know to do that.
22
to do that?
23
A.
We had to do the
So, how do you train them to be able
Well, again, it's approximation training that
24
we do, small steps.
So, the very first thing they have
25
to learn is how to open their mouth and hold their mouth
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open while someone puts their hand, you know, touches
their tongue, touches their teeth, all up in their
mouth, the roof of the mouth, you know, all around in
their mouth.
So, after you feel very confident that that
process has taken place, you would present the tube to
them, show them the tube, probably rub it all around
their face, reinforcing them for not grabbing the tube
from you.
That's another aspect of desensitization.
10
Just, I have this tube, it's not a big deal, and then
11
actually taking the tube, and there's really no other
12
way to do it, other than start the process of pushing it
13
down their throat.
14
There is a point when you're doing that
15
particular behavior where when you're pushing the tube
16
in, you can feel them open, you can feel them not open
17
too.
18
to tell you other than that.
19
you feel the -- and you know you can go.
20
It's how it feels in your hand.
I don't know how
When you're pushing it,
Q.
And, you're touching the killer whale at that
22
A.
Oh, yes, you have to.
23
Q.
Where would you be touching the killer whale?
24
A.
Typically, you will do that with two people.
21
25
time?
One person will have a hand on top and bottom of the
CARLIN ASSOCIATES
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jaw, and then the other person is feeding the tube.
can do it with one, but it's better in my opinion with
two.
JUDGE WELSCH:
You
As a regular or an average, how
long would it take for you to take a whale, let's say,
Tilikum to teach them?
doing it in baby steps.
from never having this procedure done to actually where
he can do the gastric tube; take the gastric tube?
10
11
THE WITNESS:
Because you're talking about

How long would it take to go
Are you saying like he doesn't
know any oral desense?
12
JUDGE WELSCH:
How long did it take you to teach
13
Tilikum to accept the gastric tube?
14
way.
Let me put it that
15
THE WITNESS:
A month.
16
JUDGE WELSCH:
How many training sessions would
17
18
that take?
THE WITNESS:
A month.
Boy, that's average.
19
It would just depend.
20
that, sir, because the learning process for each animal
21
is unique, and the relationship that they have with the
22
particular trainer that's training it can influence how
23
fast they can learn.
24
25
I don't really know how to answer
First instance, with Kalina, I could teach her to

do things much quicker than other trainers because I had
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a longer history with her.
JUDGE WELSCH:
BY MS. GUNNIN:
Q.
Okay, thank you.
And, to follow up on the Judge's question
that he was asking you about the training, had Tilikum
been trained in any kind of other work around his mouth
prior to --
A.
Oh, yes.
Q.
What were those types of training?
10
A.
Tili basically was completely orally
11
desensed.
12
always.
We did tooth flushes three times a day
13
Q.
What is a tooth flush?
14
A.
A tooth flush is where we take a small
15
catheter and clean out each of his teeth.
16
multiple teeth that are drilled, clean out each one of
17
those teeth with different solutions from the vet either
18
a Betadine solution or a saline solution, depending on
19
what time of the day it is.
20
He has
We do that three times a day since I've known
21
Tili, so since 1994.
22
before.
And I assume they were doing that
I don't know for sure, but I'm assuming.
23
Q.
Anything else with regard to the teeth that
24
would be done?
25
A.
Well, Tili also was completely -- you could
CARLIN ASSOCIATES
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do mouth scrapings with him, you could do oral exams,
move his tongue all around, you know, look all in his
mouth.
Q.
So you were placing your hands --
A.
Completely in his mouth.
And, when I would
do a gastric tube with him, because of Tilikum's size, I
was about to my shoulder in his mouth, yes.
8
9
10
Q.
Any other activities that you would qualify
as husbandry or part of just caring for the killer

whales?
11
A.
You mean other behaviors that we do?
12
Q.
How about ultrasound?
13
A.
Oh, yes, we could do ultrasounds, we could do
14
-- what is that called when you put the --
15
Q.
Ekg?
16
A.
Ekg, the little pad, ekg.
Any time we're
17
lifting him on the floor for vets to come out and give
18
him, you know, an injection, there's really not much
19
that you could do at the doctor.
20
much everything voluntarily.
21
all.
22
Q.
I mean, we do pretty
We teach them how to do it
And, all of that training that is done, would
23
you be able to do that if you had no close contact with
24
the killer whales?
25
A.
I don't think so; not at the level at which
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we do it, no.
Q.
Have you ever done training of killer whales
with no contact?
A.
No, I have not.
Q.
And, have you done that at all times behind
No, ma'am.
some kind of barrier?
A.
No, ma'am, just what I was saying about the
gastric tube, there is so much that you -- it's how it
feels because you need to feel the animal, you need to
10
feel how they're responding, and if you can't touch
11
them, you can't feel them.
12
could do those things.
13
14
Q.
So, I don't see how you
How about with Tilikum now?
all of your contact with him behind a barrier?
15
A.
We are -- the pool wall is just about two and
16
a half feet.
17
bottom floor when he is lifted.
18
19
Q.
We are allowed to go out on the false
You described the false bottom floor.
A.
The med pool.
21
Q.
-- the D Pool?
22
A.
D Pool, sorry.
Yes, it's the one that has
the white that looks like it's white in the photograph.
24
25
Is
that a different name for --
20
23
Are you doing
Q.
Do you put up any type of barrier when you do
that?
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1
2
A.
When we go out on the floor with him?
No,
ma'am.
Q.
Now, why is it so important to train these
killer whales?
A.
Well, we have a responsibility when we come
in the animal training department at Sea World.
know, I got hired when I was 18, and I remember just the
responsibility of -- I had decided that I was going to
dedicate my life to creating an environment for these
10
animals that was fun and safe and stimulating.
11
training them, teaching them does that.
You
And,
12
It provides fun for them and people, it
13
provides safety for them and the people, and if we
14
didn't train them -- like, let's just talk about the
15
husbandry stuff.
16
be able to maintain them.
17
If we didn't train them, we wouldn't

They would die.
And, I'll give you an example.
I mentioned
18
Kalina and that gastric tube.
19
was down to about 25 percent of her kidney function.
20
She had gotten ill and she needed water, and we were not
21
able to get her enough water in her food.
22
we were hydrating the food, we were doing everything we
23
could, she needed a gastric tube.
24
25
She was really sick.
She
Even though
And, I went in every single day for 30-plus

days, and she did that tube for me, and I don't think
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she would have done that tube for other people because
she was very ill.
She was barely coming over to the
side of the pool.
And, if she wouldn't have had that
tube and gotten that supplemental water, she would have
perished.
So, it's imperative that we train them to
maintain them, to sustain their life, to give them what
we signed up for which was quality of care and a
stimulating life.
10
Your Honor, I would just
11
move to strike that response.
12
doctor, she's giving diagnoses and symptoms and there's
13
been no testimony that she's qualified to provide that
14
kind of testimony.
15
16
JUDGE WELSCH:
basis.
She's not a medical
I'm not accepting it on that
Overruled, go ahead.
17
BY MS. GUNNIN:
18
Q.
And, with regard to this training, how does
19
that relate to the safety of the trainers that work
20
around killer whales?
21
A.
Well, you're interacting with the animals
22
that are obviously much larger than you and in an
23
environment that isn't our natural environment.
24
25
So, teaching them how to interact with us

appropriately -- like I was mentioning before, you know,
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not pushing into me, not bumping me.
I mean, the most
simple of bumps, you know, I'm a hundred pounds.
don't want a 6,000-pound bumping me.
space.
keep the animals in a position where they're safe.
So, I
Give me some
Those simple things keep the trainer safe and
Teaching them, you know, this is how you go
through the canal when another animal is going through.
This is how you do these different things that we're
asking you to do.
10
11
them.
I don't know how you could not train
That would be irresponsible in my opinion.

Q.
Going back to what you were talking about
12
after the Ken Peters incident in 2006, you also
13
mentioned a swim test requirement.
14
A.
Yes.
15
Q.
What was the importance of the swim test with
16
17
regard to safety?
A.
Well, basically, when you're hired into the
18
department, you have to pass a swim test.
19
at the Whale and Dolphin Stadium and only about two
20
percent of the people pass it on the first try.
21
That's done
When you come to Shamu, the pool is bigger,
22
and you need to be able to handle yourself in the water
23
without thinking about, "Oh, my goodness, I have to hold
24
my breath.
25
bottom of the pool."
Oh, my goodness, I have to swim to the

You just need to be able to do it.
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And, so that's what the swim test is.
It's a
pretty heavy-duty physical test, and you are required to
pass it, or else the water is not a place that you need
to be.
Q.
So, in your opinion, did the changes that
were made after Ken Peters' incident enhance safety at
Shamu Stadium?
A.
Absolutely, yes.
Q.
And, did you have any incidents at Shamu
10
Stadium in Florida after the Ken Peters incident, before
11
February 24th?
12
A.
I don't think so.
Q.
Now, moving on to Tilikum, we have heard lots
13
14
I don't recall that we
did.
15
of testimony about Tilikum.
16
with Tilikum?
17
Tilikum?
18
A.
What is your experience
When did you first begin working with
I started working with Tilikum when I came
19
back to the stadium in 1994 -- end of '93, '94,
20
somewhere in there -- and I have worked Tilikum who is
21
an adult male, I've worked Kotar who is an adult male,
22
and Kanduke (ph), who was an adult male.
23
the three of them, Tilikum is by far the most congenial,
24
the most easygoing, the most predictable of them.
25
Q.
And, out of
And, you're saying that even though there was
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an incident in 1991 at Sea Land with Tilikum.
aware of that?
A.
Yes, I am.
Q.
Are you aware of the 1999 event at the
You were
Florida Park with Tilikum?
A.
Yes, I am.
Q.
And, why is it you believe that about
8
9
10
Tilikum, even knowing those two aspects of his history?

A.
Well, in my opinion, what happened with
Tilikum -- when did you say the first -- 1991?
11
Q.
'91.
12
A.
'91 in Canada.
Up to that point, Tilikum had
13
never been taught that proper interaction with human
14
beings in the water, like we were just discussing, how
15
important that is for safety.
16
So, you have Tilikum who doesn't know the
17
right response.
18
a trainer in the water.
19
in the pool, in the water -- they didn't have a pool --
20
ended up in the water with him, and his response was
21
inappropriate, and that was, in my opinion, due to lack
22
of training.
23
chose a poor one.
24
25
He doesn't really know any response to

And, the trainer there ended up
He didn't know the right response.
I have kids.
He
We work on that all the time;
this is the proper response.
CARLIN ASSOCIATES
You know, when you get a
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gift that you already have, you still say, "Thank you."
You don't go, "Ah, man, I have that."
And so proper response.
our animals all the time.
to this situation.
response was inappropriate.
We work on that with
This is the proper response
Tilikum was not taught that so his
At that point, he now has in his behavioral
repertoire a very serious inappropriate response.
you're not going to make that go away.
And,
That's his
10
response.
11
weren't allowed to get in the water with him.
12
owned us and he didn't want that, so we never had an
13
opportunity to teach him the proper response.
14
So, we didn't as a Company -- you know, we
And then 1999 was the next time.
Mr. Busch
You know,
15
we came in and found Mr. Dukes.
16
So, now, Tilikum has two inappropriate responses with
17
human beings.
18
Dukes was his name.
So, while what happened on that day was
19
tragic, it was not unpredictable, and that's why I can
20
say Tilikum is the most predictable.
21
land, he very, very congenial, he's very responsive,
22
he's very receptive to interacting with human beings and
23
training, and he's easy going.
24
land in the water, although completely inappropriate is
25
very predictable.
When you're on
What happens when you
So, that's why I can say that.
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Q.
Well, now, let me ask you with that being the
knowledge, how is it that you work so closely next to
him next to the pool?
A.
Because we had thousands upon thousands and
thousands of interactions with Tilikum where he never
exhibited the propensity to pull a person or things into
the pool.
protocol, all the training that we had, and how we
worked people in with Tilikum into his environment was
10
That was not his MO, and all our safety
all based and not entering the pool.
11
So, we were coming at it from both angles.
12
We were well aware of what would happen if someone
13
landed in the pool with them.
14
safety protocol was to prohibit that.
15
16
Q.
Our training and our
Prior to February 24, 2010, had you ever had
a trainer accidentally fall into the pool with Tilikum?
17
A.
No.
18
Q.
And, what was the purpose of the specific
19
20
SOP's that are written for Tilikum?

A.
Because we were aware of Tilikum's history.
21
And, history is important when you're talking about
22
behavior.
23
trainers that were working with him in his environment
24
in his area to be aware of his history, to know that he
25
was unique, he has a very unique set of behavioral
We were aware of his history, we wanted the
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background.
He's not like our other whales.
You asked me that earlier about their
personalities.
matters.
a very unique history.
Well, it isn't just personality that
It's also behavioral history, and Tilikum has
So, we needed people to be aware not only of
how we prohibited people from interacting or approaching
his pool or permitted them to, depending on their level
and where they stood in regards to him, but just having
10
that difference made you conscious that Tilikum was
11
unique.
12
whale, you couldn't get comfortable because we had a
13
very different and unique protocol for him.
14
15
16
Q.
You couldn't just treat him like every other
How about the Tili Talk?
What was the
purpose of the Tili Talk and what is the Tili Talk?

A.
The Tili Talk was basically the first thing
17
we did with any new person on the very first day before
18
they ever even took a tour of the area.
19
They came into our area and sat down in the
20
lounge and received the Tili Talk.
21
talk consisted of, we have a whale in our care who lives
22
in our pools, his name is Tilikum, he's been involved
23
with the deaths of two people.
24
regimented rules and protocol concerning him.
25
to know where he is at all times, where he isn't, you
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And, basically, the
We do have very
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1343
need to abide by these rules because it is our belief
that if you fall into his pool and he is able to get
ahold of you, that we will not be able to get you back.
Q.
What was the intent of giving that talk?
A.
To impress upon each person that was in the
area the seriousness and to make them aware that they
needed to be conscious of Tilikum, where he was, where
he wasn't and what their parameters were concerning him.
Q.
Could every trainer work with Tilikum?
10
A.
No, absolutely not.
Tilikum had a very
11
regimented team, very small, highly-skilled team, and
12
Tilikum's team was restricted in a different way than
13
the other whales.
14
When I had trainers come into the area and
15
I'm assigned with teaching that trainer how to work with
16
whales, I'm going to consider what that trainer needs,
17
and work with them accordingly.
18
I'm going to consider the whale, I'm going to
19
consider the area, I'm going to consider the show, so
20
there are a lot of factors.
21
your behavioral growth, your career advancement, your
22
opportunity means nothing.
23
on Tilikum's team is for Tili; for his needs.
24
25
When it comes to Tilikum,
The only reason people are
So, it was a different mentality concerning

him.
He never added people just so they could learn how
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to work him.
we as a group unanimously decided he needed somebody,
and if that was the case, then we unanimously decided
who that person was going to be.
5
6
7
Q.
That wasn't it.
When he needed a person,
Why did you make such careful decisions about
who was going to work with Tilikum?

A.
Because we needed people that were skilled,
that understood what was going on with him, what his
special behavioral background was and were able to make
10
11
12
13
the right calls.

Q.
Was there a consideration about the safety of
those trainers working with Tilikum?

A.
Absolutely, always.
I mean, any time you're
14
interacting with any of the whales, the safety is
15
paramount.
16
already demonstrated -- we dialogued about that earlier
17
-- they have already demonstrated time, upon time, upon
18
time the ability the make the safe call, to interact
19
with animals safely in all types of circumstances.
20
21
Q.
And, a person at that skill level has
So, why wouldn't it be appropriate to just
treat all of the killer whales like Tilikum?
22
A.
Because they don't all have his behavioral
23
history.
The rest of the pod, they already have that
24
background, they already know the proper etiquette, they
25
already know how to interact with trainers, with human
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beings safely, and if we don't continue that practice
and we let that reinforcement history lapse, then you're
missing out on the opportunity of the animal doing it
correctly should someone else fall in the pool.
Tili, obviously, is in a place where that's
not an option for us, but these other animals, they've
already shown that they can do it right, they're willing
to do it right so we need to continue on with that.
9
10
Q.
With Tilikum, were there attempts to desense
him to a person being in the pool?
11
A.
Yes, ma'am.
12
Q.
And, what efforts were made if you can
13
14
describe what was done?

A.
The pool with the false bottom, that pool, we
15
had permission from our curator at the time, Chuck
16
Tompkins, we had permission from him to go into that
17
pool and lift the floor to around my knee level.
18
don't know how many feet that is but around my knee
19
level, and we would have a person on Tilikum's head
20
working at his face, and one of us that was on his team
21
would be next to him in the water, and we would kind of
22
lay down in the water so we were floating a little it.
23
So, I
And, we would work him going to that trainer,
24
maybe doing like a squirt.
He couldn't really move that
25
much, but he was doing like a little squirt and then
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going back to the trainer.
would associate that with what it looks like when a
human being is in the water, what an appropriate
response would be.
And, the hope was that he
It was as far as we could take it.
We would
work with him through the gates.
We would be on one
side, and he would be on the other, and we would
practice that call-back tone, we practiced doing
behaviors through the gate like squirting or vocals or
10
lift your pec, very simple things again in hopes that we
11
were building some sort of history of what it might look
12
like to him if that were ever to occur; if a human being
13
were ever to be in his pool again; that there would be
14
some hope of having an appropriate response.
15
16
Q.
How many times did you work those desense
sessions with Tilikum?
17
A.
Oh, I don't know.
18
Q.
Do you have a judgement?
19
A.
Hundreds, hundreds.
20
Q.
And, in those hundreds of times are you aware
21
Lots of times.
Tens?
Hundreds?
of any time that Tilikum acted inappropriately?
22
A.
No.
And, Tili had the opportunity.
You
23
know, that's the thing about -- going back to when you
24
were asking me, you know, how could we be so close to
25
him.
We had thousands of interactions where Tilikum had
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an opportunity to grab my hand.
to my shoulder down in his throat.
opportunity to grab us, and he never demonstrated that.
It just really wasn't part of his method of operation.
5
6
Q.
I mean, I would be up
He had the
What pool would Tilikum have been in when you
were doing the gastric intubation procedures?
A.
My favorite pool to do it in was the front
Q.
That would be the A Pool?
10
A.
Yes, ma'am.
11
Q.
That's a deep pool?
12
A.
It's a very deep pool.
14
Q.
About how deep is that pool?
15
A.
36 feet.
16
Q.
So, if he wanted to pull you in, he would
13
17
18
19
20
21
pool.
It's our deepest
pool.
have -A.
Oh, he had ample opportunity; ample
opportunity, yes.
Q.
You were at Shamu Stadium after there was an
event at Loro Parque on December 24, 2009, correct?
22
A.
Yes, ma'am.
23
Q.
And, did you review an incident report from
24
25
that event?
A.
We reviewed video, yes, ma'am.
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Q.
How about the report itself?
A.
You know, I cannot recall if I did or not.
Q.
And who presented that to you?
A.
Mike Scarpuzzi.
Q.
And, did you have discussions with the
Did you review
it?
trainers at Shamu Stadium about that event?
A.
Oh, yes, ma'am.
At length, yes.
Q.
What was the substance of that conversation?
10
A.
From viewing the video, it's my opinion there
11
were some mistakes made, and we dialogued about some of
12
those mistakes and what we would have done differently
13
at our stadium.
14
Q.
What were the mistakes that you discussed?
15
A.
It appeared that they didn't have primary
16
reinforcement readily available in all the places that
17
they were reinforcing.
18
Q.
19
problem?
20
A.
Before you go on, why would that be a
You know, it doesn't -- how can I say this --
21
what happened in Loro Parque was layers of mistakes.
22
That's why they got in the place they got.
23
ultimately, in my opinion they panicked.
24
25
And,
Once things started going south for them,

they tried to rush the situation to get Alexis out of
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the pool, and in my opinion with what I've experienced,
that can sometimes be the make-it or break-it.
I think the Kasatka incident even showed
that.
Once they were pulling that net and she rested,
everything stopped, and that's what allowed them to
regroup and think.
wasn't primary, it was how that factored into every
other mistake that was made.
down, they needed to make some different choices about
So, it wasn't so much that there
And, they needed to slow
10
where they were asking Alexis to get out of the pool.
11
They needed to let Keto really relax at stage before
12
they continued moving.
13
Q.
And, from what you understood of that
14
incident, is that an incident that you believe could
15
likely have been recreated at Sea World of Florida?
16
A.
No, absolutely not.
17
Q.
Why is that?
18
A.
Because we talked at length about if you're
19
in a pickle, your link is your spotter, and if I'm
20
spotting somebody and that happens, I'm going to say,
21
"Carla, you're okay.
22
Take some breaths, let's just talk about this for a
23
second."
24
25
I'm right here.
You're okay.
And, I'm going to direct you, I'm going to

assume that I'm going to take over and I'm going to tell
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you what to do, and I going to help you, and that's
going to help you stay calm.
At our stadium, we talk at length about your
nearest exit is not always stage, and most likely, it
isn't the place you want to go if that's where the whale
is.
When they started bringing Alexis right to
stage, right by Keto, Keto just couldn't help himself.
He was already frustrated and they bring the frustration
10
point right here.
It's like if you're in a fight with
11
your spouse and they won't just give you a little room
12
-- you know, he needed a little room.
13
sculled back to the glass that was behind him, Keto
14
probably would have just gone right into stage where his
15
bulk of reinforcement history is.
16
the choice to go there.
17
fast, and they went right in his face, and we wouldn't
18
do that.
19
Q.
If he would have
He had already made
It's just that they went too
Were you part of the decision to -- let me
20
ask you this first -- were the trainers out of the water
21
for a time period at Sea World after that?
22
A.
Yes, one day.
23
Q.
Were you part of the decision?
24
JUDGE WELSCH:
What did you say?
25
THE WITNESS:
One day.
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BY MS. GUNNIN:
Q.
Were you part of the decision to decide to
get back into the water?
A.
Yes, I was.
Q.
How is it you were able to make that decision
6
7
8
9
in just one day?

A.
Because we would not have handled that
situation like that.

When you make a change like that, when
10
everyone gets out of the water, and the animals are used
11
to you being in the water, you're setting up actually a
12
situation that could be even potentially dangerous
13
because it's so unusual.
14
respond to that and start doing things they normally
15
wouldn't do in order to -- why aren't you getting back
16
in the pool?
17
that circumstance.
18
The whales are going to
You know, they're going to try and create
We discussed as a management team and then we
19
discussed with the people who would be getting back in
20
the pool, we felt like we had processed the information,
21
we had assessed what we felt like were some of the
22
mistakes that were made.
23
would do differently, made sure that everyone had an
24
opportunity to express their thoughts and opinions, and
25
we asked, "Are you ready?
We had dialogued about what we
How do you feel?
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Can you get
1352
back in?
deal."
And if you can't, you can't.
It's not a big
There is no shame or punishment or any type
of negative consequence for saying, "I don't want to do
that.
today, I don't want to get in the show."
could have something personal.
be really sick, and you could just, "I'm not my best
today."
I'm not ready to get in.
I don't want to get in

I mean, you
You know, your mom could
Okay, no big deal.
10
We had already established that history with
11
our team that saying, "no," is perfectly acceptable.
12
So, when we sat down and we talked with people, and
13
everybody was like, "Yes, yes, yes, I'm ready.
14
it's the right thing.
15
understand what we would do differently, I would be able
16
to execute that."
17
Q.
I think
I understand what happened, I
We were ready.
So, if a trainer would decide they didn't
18
want to work with a killer whale that day, what happens
19
to that trainer?
20
21
22
23
A.
Nothing.
They don't.
Not a big deal.
There
are plenty of other roles to play.

JUDGE WELSCH:
Let me ask you a different
question.
24
THE WITNESS:
Sure.
25
JUDGE WELSCH:
On Loro Parque, based upon your
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review of the video, if I'm understanding it correctly,
you viewed it as a problem that happened that you didn't
see happening at Sea World.
changes were made in terms of anything that Sea World in
Orlando was doing after viewing the video from Loro
Parque?
there any substantive changes?
and the talking to the trainers.
that.
10
So, am I to take it that no
Do you understand what my question is?
Were
Not of the discussions

I understand all of
Unlike the Ken Peters incident where you started
11
to get underwater videos, and you had some other things
12
that you actually instituted based on the Ken Peters
13
video, what I'm hearing anyway from Loro Parque after
14
viewing the video other than discussing it and deciding
15
that it wouldn't happen at Sea World, were there any
16
changes, actual changes made in terms of the operation
17
here in the Orlando based on that?
18
THE WITNESS:
19
BY MS. GUNNIN:
20
Q.
No, sir.
With regard to Loro Parque and Sea World, is
21
there any difference in the experience level of the
22
killer whale trainers at Loro Parque?
23
A.
Yes.
24
Q.
And, if you could tell us, what is the
25
difference?
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A.
Our staff -- well, I'm getting ready to enter
my 26th year, and most of that time has been spent with
whales.
every day.
variety of experience.
I'm online, side by side, still working whales
We have depth of experience and we have a
We have trainers that have worked in the Ohio
Park when it was open, I worked in Texas, we have
trainers that have worked in different areas.
worked in all three.
10
I have
That brings a lot to the table.
They have a very raw staff who is just
11
learning to work killer whales.
12
social structure out there, all young whales, no adults.
13
And, they would be supplemented with a trainer from one
14
of our Parks, and we have layers of leadership.
15
They have a very unique
You know, we've dialogued about that since
16
one of my very first questions as to what is the
17
leadership.
18
I rarely make a decision all by myself that somebody
19
doesn't -- you know, that I don't bounce off of
20
somebody.
21
There are six of us.
I'm never on my own.
You have checks and balances all along the
22
way, and it's difficult because, you know, these are
23
people and people's lives, but the mistakes that were
24
made was lack of experience; it really was.
25
They rushed it.
Alexis got afraid.
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I don't
1355
even know if he had ever seen anything like that before,
you know, when Keto started pushing him.
Keto to be taken from him.
took him.
He asked for
Mistake number one.
They
Keto wasn't fully committed, they rushed him
getting out of the pool.
have happened because I've seen it with other trainers
who have seen it, we've walked it, we've talked it.
I've listened to stories for 25 years of my life.
10
Those things just wouldn't
When you hear these things and you see these
11
things and you watch it, it gets in your bank, and you
12
draw from it at that point the time, and you realize
13
that slow and steady can get us out of it.
14
can make it worse and that's what happened.
15
Rushing it
And, quite honestly, Your Honor, when I
16
watched that video, Keto was never even that mad.
17
never even really lost it.
18
rushed it.
19
it didn't need to happen.
20
Q.
21
about --
He
He was frustrated, and they
I don't know what happened underwater, but

It didn't.
Going back to one thing you just testified
22
JUDGE WELSCH:
Is this a good stopping point?
23
MS. GUNNIN:
This would be a good stopping
24
25
point.
JUDGE WELSCH:
We will stand adjourned for
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lunch.
adjourned.
Be back a quarter after one.
We stand
Thank you.
---o0o---
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Afternoon Session
1:15 p.m.
JUDGE WELSCH:
Ms. Mairot, I'll remind you you're still under
oath.
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Ms. Gunnin?
---o0o---
10
11
BY MS. GUNNIN:
12
Q.
Ms. Mairot, before the break, I think we were
13
talking about Loro Parque.
14
different subject now.
15
We're going to move on to a
What would you estimate in a typical day for
16
yourself the number of interactions that you have with
17
killer whales?
18
A.
19
20
21
Of course, the time of the year matters.

We're probably looking at somewhere between
like 15 to 20, 25; somewhere when they're.

Q.
When I use the term, "interactions," maybe it
22
would be a good idea for you to explain to the Judge
23
what is an interaction with a killer whale?
24
25
A.
Anytime that you're participating in -- a
time when you ask the whale to come over to the side of
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the pool, anytime you're participating in that would be
an interaction.
Q.
And, how many of the killer whale trainers at
Sea World of Florida could do similar interactions that
you could do with the killer whales?
6
7
8
9
A.
Probably the Senior 1's and above so that
would be 13 of us.
Q.
And, would their number of interactions be
similar to yours?
10
A.
11
12
Maybe even more.

Speculation and lack of foundation.
13
MS. GUNNIN:
14
JUDGE WELSCH:
She manages them.

Overruled.
My recollection of
15
her testimony is she's out in the pool all the time for
16
I forget, you said, 80 percent of your time you're
17
poolside and working with the other trainers.
18
So overruled.
19
BY MS. GUNNIN:
20
Q.
Go ahead, she can state.
So, what is your estimation of what the other
21
trainers other than yourself spend interacting with
22
killer whales in a typical day?
23
A.
It could be more than me, definitely, just
24
because I do have some paperwork responsibilities,
25
computer responsibilities that they don't necessarily
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have, and also they will let me know before they go to
interact with the whale.
"Hey, Jen, we would like to do this.
that?"
for us.
So, they'll come in and say,

Are you okay with
And, again, it's just another check and balance
Q.
Could you explain to the Judge why is it
important for Sea World to do a show of these killer
whales?
doing shows?
10
A.
Why couldn't you just house them without ever
Well, the show is just a culmination of
11
everything that we do.
12
interactions that we do are what brings a complete
13
circle.
14
all these things, the relationships, they all kind of
15
are encompassed in the show.
16
package of that.
17
You know, the different types of
So, we do play time, the learning, exercise,
It's just a complete
And, like teaching an animal something.
For
18
instance, if I was working with a baby whale and we were
19
teaching him a fluke presentation -- remember how in the
20
beginning of my testimony we talked about we wouldn't
21
want to do something like that always in the med pool.
22
We would want to do it in a variety of settings in a
23
variety of pools, so the learning process is fun.
24
there's trust building, there's reinforcement history
25
built.
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So,
1360
When I go out in a show, I'm doing the show
and I'm doing other things inside of that.
working a baby, he may do the opening part of the show
with his mom, and then I'm in the show, momma's doing
something, and I'm going to be like, "Let me have your
tail," get his tail.
mom."
8
9
"Good.
So, if I'm
Now, go back and be with
So, it blends all of those things that we're

doing together.
And, again, all that does is keep that
10
safety net really wide because those interactions,
11
they're not stand-alone.
12
all wrapped up in each other.
13
Q.
They're all together, they're
And, when you were describing the shows,
14
those presently done at Sea World of Florida, does that
15
show involve close contact with the killer whales?
16
A.
Yes.
One Ocean is the name of the show, what
17
we do right now.
18
mentioned that particular segment.
19
Side, and in part of that -- it starts with two whales,
20
two trainers join, and one of the trainers takes their
21
whale down to the glass while one stays in the slide-out
22
area.
23
Yes, it does.
Actually, I had
It's called Side by
And, that is the part of the show -- I think
24
I said something to the effect it's like the heart of
25
the show or something like that.
CARLIN ASSOCIATES
That's the part of the
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show where we showcase the relationship that we have
with the animals, and we do do close physical contact.
We're able to bring the whale up on the slide-out on
their side -- it's called a lateral slide-out -- and we
can actually reach down and hug them from that position.
Q.
In your opinion as a manager at Shamu
Stadium, do you think that you or Sea World are
disregarding the safety of the killer whale training?
A.
Absolutely not at any time.
10
Q.
Why do you believe that?
11
A.
Because all of these different layers of
12
information that we give our trainers, ways that we
13
train them, the types of interactions we do with them,
14
our coaching system, our management system, it's all
15
designed so that they have a knowledge base with which
16
to work from, make decisions so that they're safe, so
17
that the animals are safe because we talk about it.
18
talk about it all the time.
19
Does this feel right?
20
We
How does everybody feel?
Does this feel safe?
Nobody is an island.
There's nobody at Sea
21
World of Orlando that's just out there making decisions
22
all on their own with no accountability, and to me that
23
demonstrates responsibility and awareness that what we
24
do, we do interact with large animals, we are
25
interacting in a watery environment, there is
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responsibility with that.
matters to me.
We don't take it lightly.
My team will tell you one thing I say all the
time is "Everybody who comes in goes home.
home."
and we practice it with every decision we make.
It
Be safe, go
That's what we do, that's what we believe in,
Q.
And, if you have a trainer that is
uncomfortable with something that they're doing, are
they able to come to you?
10
A.
Absolutely.
11
Q.
And, explain how that process would be if a
12
trainer came you and said, "I don't think this is a safe
13
thing that we're doing"?
14
A.
I just want to clarify, too, we have and we
15
practice an open-door management policy.
16
means if I have a trainer that wants to speak to one of
17
the leads, myself, Craig, or if they want to skip all of
18
this and go to Kelly or even skip Kelly and go to John
19
or even on up the park president, that is perfectly
20
acceptable.
21
talk to whoever.
22
We practice what we preach.
By that, I
You can go and
So, they would come in and say, "Hey, Jen, I
23
would like to talk to you.
I have a concern about, I
24
don't know, something I saw, and I just wanted to run it
25
by you and see what you think."
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They would communicate to me, we would come
up with a solution or I would say, "Thank you for
bringing that to my attention.
forward," and, you know, just depending on what it was,
we would talk about what the next step would be, and we
would go from there.
7
8
9
10
Q.
I'm going to take it
And, you mentioned John.
Just for the record
who is John?
A.
John Kerivan.
He's the Vice President of
Zoological.
11
Q.
And that's for Sea World of Florida?
12
A.
Sea World of Orlando, yes.
13
MS. GUNNIN:
14
Judge, if I could just have a
moment.
15
JUDGE WELSCH:
16
MS. GUNNIN:
17
18
Okay.
(Pause).
That's all the questions
I have.
JUDGE WELSCH:
19
---o0o---
20
CROSS-EXAMINATION
21
22
Q.
Good afternoon, Ms. Mairot.
23
A.
Good.
24
Q.
It's been a long day for you?
25
A.
So far.
How are you?
How are you?
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1
2
Q.
environment anyway.
3
4
I just want to ask you a couple of questions

in follow up to Ms. Gunnin's questions.
5
6
Not longer than work but long in this
We met back in June when I took your

deposition?
A.
Yes, ma'am.
Q.
I just want to go over some of those
9
10
questions.
whales for about 26 years?
11
12
A.
I'm going into my 26th year, yes; getting
ready to.
13
14
You said you have been working with killer
Q.
You would agree with me that training killer
whales is a dangerous job?
15
A.
I would agree that it could be, but I do feel
16
like we have a strong safety protocol that makes it
17
safe.
18
19
Q.
But, killer whales generally are dangerous;
wouldn't you agree?
20
A.
No, I would not agree with that.
21
Q.
You don't agree that killer whales are
22
dangerous?
23
24
25
Do you remember giving a statement to the

OSHA compliance officer in this case?
A.
Yes, ma'am.
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1
2
Q.
And, in that statement, do you recall talking
about the dangerous job working with killer whales?
A.
Yes, and I said it can be, and I stated
several times we are working with large mammals, we are
in a water environment.
6
7
Q.
But, the killer whales, you don't think are
dangerous?
A.
They can be.
Q.
You're the supervisor of animal training; is
10
that correct?
11
A.
Yes, ma'am.
12
Q.
And, you've been at the Shamu Stadium for how
A.
I believe I came back to Shamu around 1994;
13
long?
14
15
somewhere around in there.
16
17
Q.
supervisor of animal training?
18
19
How long have you held the position of
A.
I think it's been about 10 or 11 years;
somewhere around in there.
20
Q.
Is that the same position that Ms. Brancheau
22
A.
Yes, it is.
23
Q.
Is one or your responsibilities doing the
21
24
25
held?
show board?
A.
Oh, yes, ma'am.
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Q.
And, that's where trainers get their
assignments every day.
They can look up and see what
shows they're going to participate in?
A.
Yes, ma'am.
Q.
You talked about -- in your testimony
earlier, you talked about incident reports.
Do you
remember that testimony?
an incident when it occurs is so that you can learn from
this incident, correct?
And the purpose of recording
10
A.
Yes, ma'am.
11
Q.
So, when an incident occurs, Sea World writes
12
it down so that the trainers can learn about it.
13
that one of the ways that they communicate?
Is
14
A.
Yes, ma'am, that's one of the ways.
15
Q.
And, you also talked about that you also
16
verbally communicate?
17
A.
Yes, ma'am.
18
Q.
Is there a system at Sea World to determine
19
20
21
22
when incidents are recorded?

A.
Can you define your time frame for me,
please?
Q.
Sure.
Prior to February 24, 2010, was there
23
a system in place where you determined what was an
24
incident that you would complete a corporate incident
25
report for?
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A.
I know in our park -- and I'm not sure if
this was actually a corporate -- we would consider an
incident when an animal made contact with a trainer and
with the mouth open.
Q.
So, if there were an occurrence where there
was no contact and the mouth wasn't open, it may not be
recorded?
8
9
10
11
A.
Occurrences of what?
I mean, we interact
with the animals all the time when they don't make
contact with their mouths.
Q.
I guess my question was, I was just speaking
12
about whether or not there was a system prior to
13
February 24, 2010, where Sea World of Florida determined
14
when they would record an incident with a killer whale,
15
and I thought your testimony was that at Florida, if the
16
killer whale made contact with the animal trainer?
17
A.
Yes.
18
Q.
With the mouth open; is that correct?
19
A.
Yes, ma'am.
20
Q.
So, my follow-up to those questions was if
21
there is no contact or the killer whale didn't have its
22
mouth open, is that a situation where you might not
23
record a behavior that you thought was inappropriate for
24
a whale?
25
A.
Do you mean create a corporate incident
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report for it?
Q.
Sure.
A.
Well, probably not.
Right, that's my question.

We might.
You know, the
guidelines have changed throughout time.
When I first
started, we didn't even have corporate incident reports.
So before February 24, 2010, that was a long time go.
Q.
And, you started in 1980?
A.
`86.
Q.
And, you said that there had been changes to
11
A.
Yes, ma'am.
12
Q.
Of when you record an incident.
10
13
that?
been changes since February 24, 2010?
14
A.
This year?
15
Q.
2010.
16
A.
Do you mean changes at all?
I don't know
17
that we've had any incidents to record.
18
haven't at Sea World of Florida.
19
20
21
Have there
Q.
I know we
Have you received any new direction or
protocol regarding how to record incidents?

A.
No, but if something happened, I would
22
communicate it to Colleen, and she would give
23
instruction.
24
25
Q.
I only ask because you said that the protocol
and procedure has changed over time.
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I just wanted to
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make sure it's clear.
February 24, 2010?
There have been no changes since
A.
Not that I know of.
Q.
And, as a supervisor of animal training, you
are required to review the prior incident reports?
A.
Not necessarily, no, ma'am.
Q.
In what instances are you required to review
those reports?
A.
10
I don't know that there's a thing that
requires me.
11
Q.
They're often shared with me.
As a part of your responsibility, do you make
12
it your business to review incident reports, or what is
13
an instance where you have actually reviewed an incident
14
report that may not have been generated at the Florida
15
park?
16
17
18
19
A.
If I hear about an incident, I'll ask what
the details were.

Q.
How would that be communicated to you?
Through Ms. Flaherty Clark or --
20
A.
Quite possibly.
21
Q.
Now, you talked during your testimony earlier
22
about when a trainer is hired at Sea World and when they
23
actually start at Shamu Stadium; do you remember that
24
testimony?
25
A.
Yes, ma'am.
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1
2
Q.
And, part of your testimony was that you gave
this Tili Talk?
A.
Um-hum.
Q.
Is that correct?
A.
Yes, ma'am.
Q.
And, you give the Tili Talk because of
Tilikum's history?
A.
Right.
Q.
And, you're trying to provide information to
10
new trainers about Tilikum and his past incidents; is
11
that correct?
12
A.
Yes.
13
Q.
Other than the Tili Talk that's provided to
14
this new trainer, you don't provide any additional
15
written information to a new trainer at Shamu Stadium,
16
do you?
17
A.
No, that's not so.
18
Q.
There is Tilikum protocol, correct?
19
A.
Yes, there is.
20
Q.
But, on the first day you come in, it's just
21
22
23
24
25
as a verbal sort of Tili Talk?

A.
No, that's not true.
They have an
opportunity when we start them reading the manuals.

Q.
Right, and they read those manuals over time
during the first day and first week, correct?
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A.
Yes.
Q.
It's been your testimony that Tilikum has not
had -- did not exhibit -- I want to use the right word
here -- appropriate behavior with people in the water,
so at the Florida stadium, Tilikum was never water
worked; is that correct?
A.
That's true.
Q.
Isn't it also true that Sea World of Florida
never took any steps to desense Tili to humans?
10
A.
No, that is not true.
11
Q.
Well, he may have been in the process, but he
12
has not been desensed to humans; isn't that correct?
13
A.
14
Q.
Well, you never changed his status.
15
His
status has always been dry work, correct?
16
A.
You're asking me if we desensitized him to
17
human beings.
18
Tilikum.
19
Q.
But not to humans in the water, correct?
20
A.
That's correct.
21
Q.
When you desensed Tilikum, you desensed him
We had close physical contact with
He was desensitized to us.
22
to particular activities that the trainers would engage
23
in, correct?
24
A.
Could you be more specific, please?
25
Q.
For instance, you talked extensively about
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going into Tilikum's mouth for a gastro tubal procedure?
A.
Yes, we did that.
Q.
That was something that you desensed Tili
A.
Yes, we trained him to do that.
Q.
You trained him to do that, and you also
for?
trained him for other husbandry behavior?
A.
Q.
But, you never desensed him to objects
10
11
hanging from a trainer; isn't that true?

A.
No, he knew how to work with us when we had
12
our whistles on, he knew how to work with us when we had
13
our hair in ponytails, he knew how to work with us with
14
other things that -- for instance, the tube.
15
is probably 12 feet long.
16
around him and it was dangling, he knew how to let that
17
approach him without exhibiting inappropriate behavior.
18
Q.
19
different.
20
unique?
The tube
So, as we were moving that
Now, you also mentioned that Tilikum was

Do you remember that testimony; that he was
21
A.
Yes.
22
Q.
And, what made him different was that he was
23
not desensed to humans in the water; is that correct?
24
A.
25
history.
What made him different was his behavioral
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Q.
His behavioral history?
A.
Um-hum.
Q.
The fact that he didn't respond appropriately
to humans in the water?
A.
Yes, that's what made him different.
Q.
The other whales at the park had been trained
to interact with humans in the water, correct?
A.
Yes, they have.
Q.
And, you also talked about with Tilikum that
10
or just generally with the whales, that they were all
11
unique, correct?
12
A.
Well, just like us.
13
Q.
But, there are some things that are just
14
15
16
Each one is unique.
similar about all humans; isn't that true?

A.
Could you give me an example of what you're
implying?
17
Q.
18
correct?
19
A.
Yes, they're all the same species, yes.
20
Q.
And, in their natural habitat, they're not
21
Well, the killer whale is a large animal,
used to humans; isn't that correct?
22
A.
23
Q.
In the wild, they wouldn't have any
24
25
relationship with the human?

A.
I can't really speak to that.
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1
2
3
4
Q.
Do you have any knowledge that a killer whale
would have any relationship with humans?

A.
I have seen pictures of killer whales
approaching boats.
Q.
What I'm saying --
A.
I'm saying I can't speak to it.
Q.
But, in their natural habitat, undisturbed by
whale watchers, killer whales are not desensed to
humans?
10
11
12
13
MS. GUNNIN:
question.
JUDGE WELSCH:
answered the question.
Sustained.
I think she's
Go ahead.
14
15
Q.
And, there are also other similarities that
16
as a result, when an incident occurs, you talked about
17
the fact of this uniqueness with the whale that you
18
learned from whatever may have happened with the whale.
19
Let me give you an example.
If a whale, not
20
Tilikum, if a whale would happen to pull at the foot of
21
a trainer in the water, you would learn from that that
22
this whale has that proclivity; isn't is that true?
23
After the incident if the whale exhibited that sort of
24
behavior, you would then have learned that this whale
25
has this proclivity to do the act, correct?
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1
2
3
4
A.
You would learn that that animal has the
potential of doing that, yes.

Q.
And, you would communicate what you've
learned to the other animal trainers?
A.
Absolutely.
Q.
So, even if they weren't working, you would
let them know, "Hey, killer X did this today" or
something?
9
10
11
A.
When they came back into work, we would
communicate that, yes.

Q.
Exactly.
But, isn't it true that just
12
because once you learn that information, isn't it true
13
for all the whales, that once you learn something, that
14
you ought to be keen to the fact that it's a possibility
15
that a killer whale could engage in this behavior?
16
A.
It depends.
You're making, I think, a more
17
general assumption than you can.
I think you have to
18
know that given the right circumstances, given the right
19
environment, and you're actually going way out here
20
where I think it's maybe more narrow.
21
Q.
Why do you say it's more narrow?
22
A.
Because I've interacted with killer whales
23
for -- given your example, I've interacted with killer
24
whales for a long time, and not every single whale will
25
grab a foot even though some will.
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each whale, and you need to know the circumstances which
surrounded that particular incident happening.
Q.
Correct, and I'm not disagreeing that one
whale may do one thing and another whale may do another
particular behavior, but isn't it true that once a
particular whale exhibits some type of behavior, then
Sea World of Florida is on notice that we need to be
looking out for this particular behavior in all of our
whales?
10
A.
I think I just answered that.
I'm sorry, I
11
thought I answered that question; that I don't think
12
that each -- you need to know that that's something that
13
could happen, but it doesn't mean it lays over each
14
animal automatically.
15
Q.
And, I'm not saying that it lays over them.
16
I don't know what you mean when you say "lays over," but
17
my question is once you learn from an incident that
18
occurs, then you're on notice that there is a
19
possibility, isn't that correct; that there's a
20
possibility that this behavior may be existent in the
21
other whales because you're learning from your
22
interactions with them; isn't that correct?
23
A.
We learn from everything.
We learn from the
24
good too.
Yes, you learn that you can train something
25
this way, but there's a hundred ways to train it.
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Q.
And, as the supervisor of animal training,
you're responsible for training the new trainers that
come to Shamu Stadium?
A.
Yes, I am.
Q.
And, as a part of their training, you
actually train them the behavioral techniques they're
learning?
8
9
A.
them, yes.
10
11
I'm one of the people who has influence over
Q.
Other than you, who else is responsible for
training a new trainer at Shamu Stadium?
12
A.
Kelly, Craig, myself, the leads, the Senior
13
1's.
14
degrees of responsibility.
15
16
We all have influence and input at different
Q.
I'm sorry, you were saying that Kelly and
Craig also have some influence in the training?
17
A.
Yes, and the leads and the Senior 1's.
18
Q.
And, your testimony earlier was that -- would
19
it be true that you're the most senior person who is
20
sort of on the front lines of management?
21
A.
That is true.
22
Q.
And, as part of your responsibilities, you
23
help to sort of lead the training of the new trainers
24
who come onboard at Shamu?
25
A.
I'm one of the people who makes the
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1
2
decisions, yes.
Q.
And, they're being taught these terms and
techniques that you have been talking about.
about precursors?
They learn
A.
Yes.
Q.
And, they learn about operant conditioning?
A.
Yes.
Q.
And, they also learn about positive
reinforcement?
10
A.
Yes.
11
Q.
And, you were trained on these techniques
12
through formal education?
13
A.
No.
14
Q.
So, you don't have a degree in animal
15
training?
16
A.
No, I have 25 years in the pool.
17
Q.
So, everything that you have learned is from
18
your work on the job?
19
A.
Yes, hands-on.
20
Q.
And, also what you have been instructed by
21
former supervisors?
22
A.
Yes.
23
Q.
Have you taken any course work in animal
24
25
training?
A.
No.
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1
2
Q.
Have you taken any course work in animal
psychology or behavior?
A.
No.
Q.
Does Sea World require any classroom training
for supervisors who are managing their animal training
program?
A.
We do different types of seminars that we
have to attend.
Kelly will give a seminar, and we have
to go to it, but that's it.
10
Q.
And, those trainings are in-house?
11
A.
Yes.
12
Q.
You talked earlier in your testimony about
13
the fact that you word side by side with Craig?
14
A.
Yes.
15
Q.
What is his last name?
16
A.
Thomas.
17
Q.
And, he's the assistant curator?
18
A.
Yes.
19
Q.
And, you mentioned that you work
20
cooperatively with him?
21
A.
Yes.
22
Q.
Are you on his same level, or is he your
23
supervisor?
24
A.
He's my supervisor.
25
Q.
So, when you mentioned that you work
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cooperatively, what does that mean?
to report to him, or are you making decisions as a
group?
A.
talking about?
Q.
Do you still have
Can you give me what kind of decision you're
Sure, day-to-day decisions that are made for
the front line, do you have to report to Craig or can
you make the decision?
A.
I can make the decision.
10
Q.
What about when you are actually making
11
decisions regarding trainers being advanced to a
12
certain level?
13
A.
14
15
Typically, those kinds of decisions would be
talked about before, and then we would implement them.

Q.
You also mentioned that for Senior 1 when you
16
were responding to your Counsel's questions, and you
17
went through the steps of a trainer and the different
18
levels from an apprentice to an associate to an animal
19
trainer, and then to a Senior 1, and you said that you
20
expected that a Senior 1 trainer would be able to adapt
21
to anything; do you remember that testimony?
22
A.
Yes.
23
Q.
What do you mean by that?
24
A.
Just, let's say we're in a show and we have a
25
plan, and an animal decides they don't want to go out to
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the front pool, they're not going to participate in the
show.
changes will need to be made, based on the fact that
that animal is not moving to the front pool.
Well, if they're a part of that plan, then
5
6
So, I would expect a Senior 1 to be able to

make that decision and keep on going.
Q.
Despite them being able to or you at least
believing that they have this ability, there will be
times when errors occur; isn't that true?
10
A.
We're working with humans and animals, yes.
11
Q.
But, as far as the animal trainer, it's true
12
that even a senior trainer will make errors?
13
A.
Yes, human beings make mistakes, yes.
14
Q.
You talked earlier about -- you mentioned you
15
know Ken Peters, you know who he is?
16
A.
I know who he is.
17
Q.
So, you're familiar with his incident in
19
A.
I saw the video.
20
Q.
Are you familiar with Brian Rokeach?
21
A.
Yes, I've met Brian.
22
Q.
And, you are familiar with his incident where
18
23
2006?
he at least witnessed Alexis Martinez killed, correct?
24
A.
Yes, I saw the video.
25
Q.
And, Mr. Rokeach also had his own incident at
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San Diego; isn't that true?
A.
I believe he did.
Q.
And, Ms. Brancheau, she was also a senior
level trainer; is that true?
A.
She was a supervisor.
Q.
And, all three of those individuals, Mr.
Peters, Mr. Rokeach and Ms. Brancheau, they were Senior
Level 1's and above; isn't that true?
9
10
11
12
13
14
15
16
A.
I'm not sure about Brian's position, I'm
sorry.
Q.
But, you would agree with me that they were
at least senior level trainers?

A.
I'm not sure about Brian's position, I'm
sorry.
Q.
But, Mr. Peters is a senior trainer; isn't
that true?
17
A.
Or above.
18
Q.
Or above, correct, as well as Ms. Brancheau?
19
A.
Yes.
20
Q.
And despite them having sort of this ability
21
to be able to adapt to situations, still bad things
22
happened; isn't that true?
23
A.
Yes.
24
Q.
And, they resulted in serious injury and even
25
a death; isn't that true?
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A.
Yes.
Q.
You mentioned with a Senior 1, that you would
expect them to have -- that you would be looking for
sort of the showmanship skills.
that?
What did you mean by
A.
Q.
You were talking to your attorney, and you
were going through the levels or the steps of a trainer,
and what you look for, and in discussing a Senior Animal
10
Trainer 1, one of the things you said is showmanship
11
skills, you're looking to see -- they should have those
12
showmanship skills?
13
A.
Yes.
14
Q.
And, what are you talking about when you say
15
16
"showmanship skills"?
A.
The ability to smile, the ability to walk out
17
on stage and handle themselves well.
I mean, it comes
18
with experience, it comes with time, just wraps the
19
ability to be able to bring the audience into what
20
you're doing.
21
Q.
So, in addition to learning the Sea World
22
protocols and trying to remain safe, you're also looking
23
for the trainers to look like they're having fun on the
24
stage?
25
A.
Yes, ma'am.
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Q.
You talked a lot about the whales having fun;
that you want to make sure that learning is fun.
would you know whether -- you have no idea if the whales
are having fun; isn't that true?
me on that?
A.
How
Would you agree with
I can tell if they continue to participate.
If their attention stays focused, especially when you're
talking about the babies.
engaged with their trainer, they are enjoying that
If their attention stays
10
process.
11
attention span; very short attention span, so if
12
something else is more engaging, they would quickly
13
shift.
14
happening, that's the thing that's the most engaging.
15
16
17
They're just like little humans as far as
But, if they're staying focused on what's
Q.
So, they're engaged, but you don't know if
they're having fun?

A.
I think it's reasonable to be able to look at
18
an animal and say -- most of the us would say as a
19
general thought when we come home, and we're playing
20
with our dog and they bring us a toy, and initiate
21
playing fetch with the dog and they're interacting with
22
us and wagging their tail, that they're having fun.
23
I think I can look at a baby whale that's
24
engaged with their trainer, following them all around
25
the pool, racing around, chasing them.
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much say that that baby is having fun.
Q.
Have you personally done any studies that
would show --
A.
No, I have not.
Q.
So, you don't know.
A.
It's 25 years of experience of observing
whales on a daily basis, yes.
information.
Q.
That's just your --
That is where I get my
You would agree, wouldn't you, that a killer
10
whale is not a domesticated animal; he's not a dog,
11
right?
12
A.
It is not a dog, no, ma'am.
13
Q.
Now, you talked earlier -- your attorney had
14
you look at a Exhibit C-5.
15
16
May I approach, Your
Honor?
17
JUDGE WELSCH:
Yes.
18
THE WITNESS:
I only have this, C-2.
19
JUDGE WELSCH:
Use the Court's exhibit.
20
should be right up there on Ms. Carlin's desk.
21
22
Q.
23
24
25
It
Could you just identify the document that
you've been handed?

A.
Yes, this is the Shamu Stadium orientation
checklist.
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1
2
Q.
Every new trainer that starts at Shamu gets
one of these checklists?
A.
Yes.
Q.
And, you mentioned earlier that the coaches
actually complete the checklist?
6
7
10
They work with the person to complete this,
Q.
So, is the coach completing it or checking it
yes.
8
9
A.
off, or is it something that the new animal trainer or

associate would have?
11
A.
The coach should be checking it off.
12
Q.
I know we discussed earlier that you have the
13
Tili Talk when a new employee starts at Shamu.
14
receive that on day one?
Does he
15
A.
Yes.
16
Q.
I know it says discuss Tilikum safety, Tili
17
Talk.
18
the Tili Talk on day one?
19
Is there any more to that for day one other than
A.
Well, we would go over the whole, you're not
20
allowed near his pools, you're not allowed on his decks,
21
pretty much he's off limits to you in any way, shape or
22
form.
23
24
25
Q.
So, that's what that means when you say
Tilikum protocol?
A.
Yes.
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1
2
3
Q.
How long does it take?
Do you know how long
it takes to provide that information?

A.
Well, it would depend on who is giving it.

We didn't really have something written down.
There were key points that you touched on, and if the
person had any questions.
7
8
9
Q.
protocol.
A.
The second item is the screen safety

What is that?
We have screens that move that are part of
10
our show, and we would talk about that, and where you
11
were allowed to be when they were moving and where you
12
were not allowed to be when they were moving him.
13
14
15
Q.
And, when you provide that information
regarding the protocol, how long is that discussion?

A.
Again, it would just depend.
The trainer may
16
even take them out on stage, and say, "These are the
17
screens."
18
given, when the talk was given, but it would be a
19
discussion we would have with them.
20
Q.
It would just depend on where the talk was
But, isn't it true you have the details of
21
safety protocols for the screen?
Do you have something
22
written that talks about the screens and being safe
23
around them?
24
A.
Um-hum.
25
Q.
And, is that something that the trainer would
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1
2
3
4
then be required to read in order to say that they -A.
It was in the manual.
According to this, it
was located in the trainer development notebook.

Q.
I see the stars that are there.
Two stars.
Does that mean that during this first day,
that trainer would be provided with that written
information to read and review?
A.
Yes, the trainer development notebook, yes.
Q.
So, whoever was providing the training, they
10
would actually take the time to go through that
11
information with the trainer?
12
A.
Yes.
13
Q.
And, that could be the coach, or it could be
14
15
16
17
18
a lead or a senior trainer?

A.
Or me.
Not a senior trainer.
Senior 1 or
above.
Q.
Can you approximate how much time it takes to
go over this particular protocol?
19
A.
Which particular protocol?
20
Q.
The screen safety protocol.
21
A.
I can't.
22
Q.
It's about ten pages long, isn't it?
I'm sorry, a couple minutes, maybe.

Would
23
it be that short, or is it something that the trainer
24
would have to read, or would you just go over points?
25
A.
What we would be discussing with them here is
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the screens move, and we don't want them to get caught
in between the screens when they're moving.
They would not be in a position to be -- I
think what you're talking about is where the different
positions for the show are demonstrated, and they would
not be in that position yet.
We would be saying to them, "We also have
screens that move, and when you're on stage, you need to
be aware that the screens move."
10
11
Q.
But, you would agree with me, you do have
written protocol to discuss that?
12
A.
Yes, ma'am.
13
Q.
Now, you talked about Tilikum, and you had
14
mentioned that Tilikum was gentle or congenial?
15
A.
I said he was congenial and predictable.
16
Q.
What did you mean by that?
17
A.
What did I mean by?
18
Q.
That he was congenial.
19
A.
Tilikum is a very -- he performs his behavior
20
at a high level of consistency.
21
I have worked with have been a little more unpredictable
22
in their -- I shouldn't say unpredictable -- in their
23
testosterone flex and how that would impact them.
24
25
Q.
Some of the other males
And, despite that in your opinion of Tilikum
being predictable, he was relegated to a dry work
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1
2
3
4
5
6
animal, correct?
A.
He was considered a dry animal because of his
behavioral history.
Q.
And, his behavioral history shows that he
could become aggressive; isn't that true?

A.
His behavioral history showed that he didn't
know an appropriate response to trainers in the water,
and that's why he was considered a dry whale.
Q.
In Sea World for the 19 years that they've
10
had or maybe now 20 years that they have had Tilikum,
11
they haven't changed Tilikum's status of being able to
12
have an appropriate response to a human in the water,
13
have they?
14
A.
No, they have not.
15
Q.
And, do you know why they haven't?
16
A.
Because we haven't taught him how to have an
17
18
appropriate response to someone in the water.

Q.
Do you know why you haven't trained him in
19
the last 20 years to have an appropriate response with
20
trainers?
21
A.
That was not my decision to make.
22
Q.
So, despite Tilikum not providing or giving
23
an appropriate response to a human, Ms. Brancheau was
24
allowed to be in very close contact with Tilikum?
25
A.
We were all in very close contact with
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Tilikum.
Q.
My question is --
A.
The people on his team.
Q.
Right, the people on his team.
A.
Yes.
Q.
Which included Ms. Brancheau?
A.
Yes.
Q.
And, as of February 24, 2010, she was
9
10
11
12
permitted to be very close to Tilikum?

A.
She was within the guidelines that had been
established, yes.
Q.
And, those guidelines had been established
13
despite the fact that Sea World knew that Tilikum did
14
not have the appropriate response to humans in the
15
water?
16
17
18
19
A.
She wasn't in the water and
-- she wasn't in
the water.
Q.
When you say she wasn't in the water, you
mean she wasn't in the pool, correct?
20
A.
She wasn't doing water work with Tilikum.
21
Q.
She wasn't totally dry either, was she?
22
A.
We did not classify what she was doing as
23
24
25
water work.
Q.
We don't consider that water work.
I know that Sea World has a definition for
water work and dry work, but my question is, Ms.
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Brancheau was not on land away from the water when the
incident occurred with Tilikum; isn't that correct?
A.
We would consider where she was dry.
though she had water on her body, that would be
considered dry work for us.
Q.
Even
Now, you talked about a swim test being
instituted.
I believe that was after Ken Peters'
incident; is that correct?
A.
Yes.
10
Q.
And, I just want to be clear.
After the Ken
11
Peters' incident in 2006, Sea World then required their
12
trainers to have an annual swim test?
13
A.
Yes.
14
Q.
What about the incident with Ken Peters
15
caused Sea World to make that decision?
16
A.
I couldn't speak to that.
17
Q.
So, you don't why you went from having sort
18
of an entrance exam -- you had to have a swim test when
19
you first started, correct --
20
A.
Yes.
21
Q.
-- at Shamu.
22
23
24
25
And you have no knowledge
regarding why it went from entry and now every year?

A.
I did not make the decision.
I can't speak
to it.
Q.
I know you didn't make the decision, but as a
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supervisor, did you ask, "Why are we now requiring our
trainers to pass a swim test every year?"
A.
No, I did not.
JUDGE WELSCH:
What kind of a swim test is it?
THE WITNESS:
At Shamu you have to swim -- can
I show you on this picture so you understand what you
have to swim?
8
9
10
JUDGE WELSCH:
You need to be able to describe
it on the record.
THE WITNESS:
You swim from end to end, from
11
porch to porch, so by stage and back, you have to be
12
able to dive down to the bottom of the tool, and you
13
have to be able to climb out from the pool, over the
14
glass and back from the deck, back into the pool over
15
the glass.
16
17
Q.
Now, as I understand it, it's been your
18
testimony that the management team or not even the
19
management team but even the line staff animal trainers,
20
there's an open door policy, correct?
21
A.
Yes, there is.
22
Q.
And that when things happen, you talk about
23
them so you can learn from that, correct?
24
A.
Yes.
25
Q.
And, that as a manager, you and Craig Thomas
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as well as Ms. Flaherty Clark that you were always
talking and communicating about the animal trainers on
whatever work that they might be performing, correct?
A.
That's one of the things we dialogue about.
Q.
But, is your testimony that there was no
discussion about why you went to this annual swim test?
7
8
A.
I never asked the question.
I just
implemented the test.
Q.
And, no discussion or you have no knowledge?
10
A.
Not with we.
11
Q.
I'm sorry?
12
A.
Not with me, no.
13
Q.
And, you never thought it was important to
15
A.
I never asked.
16
Q.
You also had no discussion regarding why you
14
ask?
17
-- not you but why Sea World had made the decision not
18
to train Tilikum to have appropriate responses to humans
19
in water; isn't that correct?
20
21
22
A.
I never asked anybody why we weren't doing
it, no.
Q.
You never thought it strange that the Tilikum
23
team was being permitted to be in such close proximity
24
to Tilikum knowing that he didn't have appropriate
25
responses to humans in water?
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1
2
A.
I probably did thousands upon thousands of
interactions with Tilikum and felt very safe, yes.
Q.
I understand that you did fair interactions
with Tilikum, but my question to you as a manager, you
never thought it important to desensitize Tilikum to
humans in water for your trainers that may have been in
close proximity to Tilikum?
A.
We weren't in the pool with him.
Q.
But, Tilikum still had an opportunity to pull
10
a trainer in the pool even during dry work; isn't that
11
correct?
12
A.
Based on all the interactions we had with
13
him, that was not his MO.
14
with him.
15
Q.
We had not seen that behavior
And, you put Tilikum in a box.
Isn't that an
16
area that just simply because Tilikum had never
17
exhibited any behavior of pulling in a trainer, then
18
your testimony is that you never thought he would do it;
19
is that your testimony?
20
A.
I never thought Tili would do that.
21
Q.
But, there are other killer whales that
22
exhibited behavior of pulling the trainers; isn't that
23
true?
24
A.
Yes, there have been.
25
Q.
Wouldn't it be reasonable for Sea World to
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then consider that information in dealing with a whale
that you don't have a whole lot of information about as
it relates to Tilikum responding appropriately to humans
in the water?
A.
Tilikum.
I personally had a lot of information about Tilikum
based on all the interactions I had done and the
interactions I had observed.
10
We did have a lot of information about

I personally had worked with him since 1994.
So, we did have information pulling objects
11
and people in was not part of Tilikum's repertoire.
12
When I had my arm up to my shoulder in his mouth, he had
13
ample opportunity to grab me and pull me in, and I did
14
that hundreds of times with him.
15
of something that we had seen with him.
16
Q.
So, that was not part
But, despite him never exhibiting that
17
behavior, he then actually pulled a trainer into the
18
pool on February 24, 2010?
19
A.
Yes, he did.
20
Q.
And, isn't it true that Sea World had
21
information regarding the need to desense killer whales
22
in the pool as it relates to hair?
Isn't that true?
23
A.
24
Q.
Prior to February 24, 2010, didn't you have
25
information that killer whales just generally in what
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you would call sort of different pods, that it was
possible that a killer whale might pull a trainer in by
the hair?
4
5
A.
Q.
C-6.
10
11
12
I want to show you what has been marked as
I show you one of the incident reports.
8
9
Showing you a document that's marked Sea

World 609 through 615 as a part of Complainant's Exhibit
C-6.
Can you identify this document for me?

A.
How do you want me to identify it?
I don't
really see like a label on it.
13
Q.
Sure.
14
A.
Yes, I am.
15
Q.
Is this a cover memo?
16
A.
Yes, it is, from Thad Lacinak.
17
JUDGE WELSCH:
18
I don't
know what you're talking about.
6
7
I don't know of a specific report.
You're looking at Sea World's 609?
And, this is one of the incident
reports?
19
THE WITNESS:
Yes, sir.
20
21
Q.
Can you turn to Page 610?
22
A.
(Witness Complies).
23
Q.
That is a corporate incident report; is that
24
correct?
25
A.
Yes, it is.
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Q.
And who is the trainer that was involved?
A.
Kristin McMahon-Van Oss.
Q.
Is that the same person that you mentioned
was on your team?
A.
Yes, it is.
Q.
Is she currently on your team?
A.
Yes.
Q.
What is her position now?
A.
Now?
10
Q.
And the animal was Winnie?
11
A.
Yes, it is.
12
Q.
And, this is an incident where Winnie pulled
She's a lead.
13
the trainer in by her sweatshirt?
14
learning about that incident?
Do you recall
15
A.
Yes, I have heard about this incident.
16
Q.
And, in this incident, there were no
17
18
19
precursors to it; isn't that true?

A.
this over?
I'm sorry, can you give me a second to read

Would that be all right?
20
Q.
Yes.
21
A.
(Reviewing document) I did a very quick read.
22
Q.
I just have a couple of questions.
23
This incident occurred during dry work; isn't
24
that correct?
25
A.
It appears that was the case.
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difficult for me to speak to anything other than what is
written here, though.
in this park.
Q.
I have never worked this whale or
But, it does happen during dry work; the
training wasn't in the pool?
A.
It appears that way.
Q.
And, as a result of this incident, there were
recommendations made to desense all whales regardless of
what a person was wearing; isn't that correct?
10
A.
It appears one of the things that I picked up
11
on was that this is when we went from working the whales
12
in any kind of clothing, to working them strictly in wet
13
suits.
14
I do remember that.
That was the part that
15
really stood out to me when I was reading this too; that
16
we switched to the wet suits only.
17
Q.
And, if you can turn to Page 614?
18
A.
(Witness Complies).
19
Q.
This is in the section that talks about other
20
Yes.
park curator comments?
21
A.
Okay.
22
Q.
The second to the last sentence, "We agree
23
with the corrective course of action," would you read
24
that?
25
A.
Down on the Sea World of Texas part?
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1400
sorry, I'm --
Q.
3
4
5
6
7
there's -MS. HOWARD-FISHBURNE:
May I approach the

THE WITNESS:
Oh, I see.
I've got it now.
I'm
with you:
8
9
I'm sorry, Sea World of California where
"We agree with your corrective course of

action but hope that your plan to eventually
10
desensitize all the whales to work well with you
11
regardless of what you're wearing.
12
guarantee that this apparel or hair objects,
13
etcetera, will never be within reach.
14
address the problem."
15
16
Q.
That was back in 1998; isn't what correct?
17
A.
Yes.
18
Q.
The incident occurred in `97?
19
A.
This was generated in January 1998, yes.
20
Q.
And, pre-February 24, 2010, Sea World did not
21
22
You can't
Better to
desense Tilikum to hair; isn't that correct?

A.
No, that would not be correct.
Whenever we
23
were working with him, our hair was down in ponytails
24
and he was being desensitized all the time to it.
25
Q.
What steps did Sea World take to desense
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1
2
Tilikum with hair?

A.
Every time we were interacting with him,
that's part of the desensitization process.
becoming accustomed to our hair and our ponytails being
present.
Q.
7
8
9
10
He was
So, when he was becoming accustomed, had he
become accustomed or -A.
Yes, he was accustomed, he was desensitized
to it.
Q.
Is that recorded somewhere that said that
11
Tilikum had been desensed to hair?
12
record we can look at?
Is that in some
13
A.
No, I don't think so.
14
Q.
Now, you talked earlier today about some
15
husbandry procedures in response to Ms. Gunnin's
16
questions, and I think you were talking about the
17
gastric tube procedure, and if I recall your testimony,
18
you mentioned that you did that procedure in your
19
favorite pool, the front pool?
20
21
22
23
A.
My favorite pool to do it with Tilikum was in
the front pool, yes.

Q.
And, is that where all medical procedures
were done?
24
A.
No.
25
Q.
Routinely, where are the medical procedures
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done?
A.
They're done within the entire stadium.
Q.
Sea World of Florida does have a med pool; is
that correct?
A.
Yes, we do.
Q.
I'm sorry?
A.
We have two of them, yes.
Q.
And, the medical procedures are typically
We have two of them.
performed in the med pool; is that correct?
10
A.
No, it's not.
We perform them everywhere.
11
Our husbandry, like blood, urine, blow holes, cultures,
12
anal cultures, they're everywhere.
13
everywhere.
14
Q.
We do them
When you say you do them everywhere, who
15
makes the decision regarding where those procedures are
16
done?
Is that a trainer or is it a veterinarian?
17
A.
No, it's the training staff.
18
Q.
And, how does the trainer get to make the
19
call regarding medical care as to where the procedure
20
will be done?
21
A.
Because that aspect of it is the training
22
part.
So, when the vets come, we will say, "We're going
23
to do this round of blood in B pool, we're going to do
24
this round of blood in F pool."
25
we're keeping that variable for the whale.
CARLIN ASSOCIATES
We decide that so that
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1
2
Q.
So, the medical professionals have no input
in where the medical procedures are being done?
A.
We're always open to dialogue with our vet.
Q.
When it comes to the medical procedures that
are being performed on the whales, who is the final
call?
Is it the veterinarian or the management?

A.
Well, it depends on what you're talking
about.
If you're talking about our routine care for
them, the training staff will, as I said, decide what
10
pool we're going to do it in.
11
then, obviously, the vets will say what they need, and
12
we will do everything we can to accommodate them.
13
If it's something urgent,
And, then, there are some things you have to
14
do in certain pools because you don't have the deck
15
space, like an x-ray.
16
pool because you need them to slide out, and you need to
17
do that in either the back or the front.
You have to do it in a certain
18
Q.
When you say the back or front?
19
A.
E or A.
20
Q.
How often are you taking an x-ray of a whale?
21
A.
It depends on what the vets need.
22
23
24
25
It depends
on what they're doing; what they're looking at.

Q.
Within this last year, how many x-rays have
you taken of the killer whale?

A.
We work on Kayla.
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Q.
Does that mean one x-ray?
A.
Oh, I don't know how many films they took.
3
4
5
We worked it for awhile with them.

Q.
Was that one session where you had to take
x-rays or was that over a period of time?
A.
It was a couple of days, we did it with them.
Q.
Did you say Kalina?
A.
Kayla.
Q.
Have you had to take any x-rays of any other
10
whales aside from Kayla?
11
A.
Not that I can recall.
12
Q.
The medical procedures, they're not done
13
during a show performance; isn't that correct?
14
A.
We practice them during shows, yes, ma'am.
15
Q.
But, you don't perform medical procedures
16
during a show?
17
A.
Practicing them is part of it.
So, it's an
18
integral part of it.
19
out on stage with us, but we do practice these things
20
with the animals during the shows, yes.
21
22
23
Q.
We don't have the vet necessarily
But, you're not actually performing a medical
procedures during the show?

A.
When I ask the whale to do a blow hole
24
culture during a show, it's no different than when the
25
vet is standing there, and I say, "Here's your plate,"
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1
2
3
4
or I collect the plate myself.

Q.
But, you're not actually collecting anything;
you're just practicing?

A.
We can.
We can collect urine during shows,
we do tooth flushes during the show, we do a lot of our
husbandry stuff during the show, yes.
Q.
I think I heard you say that you're not
actually doing it during the show; you're practicing it
in a show?
10
A.
But, it's all together.
You can't really
11
disconnect except if the vet sticks the needle in.
12
That's the only thing, but all the holding, or we can do
13
an actual collection of the urine and then take that
14
down to the lab after the show is over.
15
blow hole culture, we can do tooth flushes, we can do
16
oral exams, we can do body exams.
17
We can do a
So, yes, there are many things we can do
18
during -- your question is a little confusing to me on
19
what you exactly mean because we have such a range.
20
can weigh a whale during a show.
21
what you want to --
22
JUDGE WELSCH:
I mean, it depends on
The question she's asking you,
23
though, is even you can do it, do you do that husbandry
24
work during the shows?
25
THE WITNESS:
We do a variety of different
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1
2
3
husbandry behaviors during the shows, yes.

JUDGE WELSCH:
So, during a show, you do collect
urine?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
You do do the other things you
were talking about?
THE WITNESS:
Q.
10
Yes, sir.
So, you don't actually do the medical
procedures during the show; is that correct?
11
JUDGE WELSCH:
That's not what she said.
12
That's what I was
13
hearing, Your Honor, that she's saying they can do it,
14
and I guess my question was --
15
JUDGE WELSCH:
But, I asked her if they do do
16
that during the show, and she said they do do that
17
during the shows, such as collecting urine.
18
THE WITNESS:
19
20
Q.
In what pool do you do that?
21
A.
When?
22
Q.
What medical procedures do you actually
23
24
25
Um-hum.
perform in a show?
A.
During the show time, we can do -- there is
the variety of behaviors that I can do during a show
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time that are considered medical husbandry procedures:
I can do a fluke present, a blow culture, a body exam,
oral exam, I can do a urine, I can do a fecal, I can do
a tooth flush, I can do a tongue scraping, I can do eye
drops, I can do those things during our shows.
6
7
8
9
10
Q.
So, are you currently performing the medical
procedures during you One Ocean show?

A.
I'm trying to answer your question.
I do not
know what you're asking me.

JUDGE WELSCH:
Let me just ask it this way.
Of
11
all those different procedures that you can do, how many
12
of those procedures have you done in the last month at
13
shows?
14
Last month.
THE WITNESS:
Okay, when we step up to start a
15
show, every trainer working every whale during that show
16
is moving around.
17
back, they're out at the glass, they're moving, and they
18
can do any of those behaviors as part of their
19
interactions with the whale during the show.
20
They're in the front, they're in the
So, let's say I have Kayla.
Kayla requires a
21
tooth flush twice a day.
So, if it's near her tooth
22
flush time, I will say, "Hey, can someone hand me the
23
kit," so I may do the open of the show, come back, flush
24
her, take her right out and do a side by side with her
25
and never stop interacting.
CARLIN ASSOCIATES
It's all woven together.
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JUDGE WELSCH:
When you do those medical
procedures, the tooth flushes, is that in the stadium in
front of the audience that's watching the show?
THE WITNESS:
Some of them can be.
You could
do a fluke present in front of them, you can do an oral
exam in front of them, you could do a body exam in front
of them.
an audience.
I mean, there's a lot of them that, yes, sir, we can do
I wouldn't necessarily do a fecal in front of

Certainly, you want to have some tact, but
10
right in front of the audience and they would never even
11
know what we're doing, yes.
12
13
Q.
And, within the last month, have you done
14
these medical procedures?
I don't know that I've heard
15
that answer.
16
in your shows in front of an audience?
What have you done within the last month
17
A.
I can do a body exam, we could do a fluke
18
present.
19
Q.
20
have you done?
21
A.
You keep saying you can.
I'm asking what
I have done a body exam, I've done a fluke
22
present, I have done an oral exam.
23
personally, that's all I've done, but I have seen the
24
blow hole culture taken.
25
Q.
I have done -- me
And, pre-February 24, 2010, were these
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1
2
medical procedures being performed in the Believe Show?

A.
This is all part of our training.
The show
-- it's all woven together, so the answer doesn't
change.
I'm not trying to dodge you.
I'm just saying
it's all woven in.
I'm going to be teaching them how to do fluke, blood,
and I'm going to do that in the front pool, in the back
pool, in a show, out of the show, in the med pool, next
10
When I'm interacting with a baby,
to mom, away from mom, it's everywhere all the time.
11
So, those things -- that's why when you're
12
saying to me how many times, it's just part of -- it's
13
like how many times have you brushed your teeth in last
14
month?
15
necessarily -- if I have Makio the whole show, I know
16
his list of things he's learning.
17
fluke presentation, one of them is how to touch a
18
target.
19
all over, both of them.
20
It's just part of the dailiness.
Q.
It isn't
One of them is his
So, I'm doing that in the front, in the back,
And, of those medical procedures that you say
21
that you perform in front of the audience, which of
22
those medical procedures require the vet or a
23
veterinarian tech?
24
A.
For what aspect of it?
25
Q.
I'm just talking about a body exam, an oral
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exam, a urine, do you need a veterinarian to do any of
those medical procedures?
A.
No, I don't.
Q.
So, you're just performing those procedures.
The trainers are trained to do those medical procedures?
A.
Yes, we are.
Q.
Who are they trained by?
A.
They're trained by their coaches, they're
trained by their management staff.
10
Q.
In explaining one of the medical procedures,
11
you said that you might come out to the beginning of a
12
show and then run and go do a tooth flush for one of the
13
killer whales?
14
A.
Yes.
15
Q.
When you say you're going to go run and do
16
the tooth flush, where does that happen?
17
A.
In the back.
18
Q.
And then you return to the show?
19
A.
You're still in the show.
20
Q.
The audience can't see you in the back, can
A.
Parts of the audience can, but we would still
21
22
they?
23
consider that when you're in the show time frame, we
24
would say you're in the show.
25
Q.
Now, you mentioned that positive
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1
2
3
4
5
reinforcement increases the frequency of behavior.

A.
Reinforcement increases the frequency of
behavior.
Q.
And, you base that statement on your training
as a killer whale animal trainer and now supervisor?
A.
Yes, I do.
Q.
You have no scientific evidence that positive
8
9
reinforcement increases behavior, do you?

A.
I have evidence that reinforcement increases
10
the frequency of behavior because that's what I do every
11
single day, and I see reinforcement increasing the
12
frequency of behavior.
13
14
Q.
You just know what the whales actually do.
You haven't tested it objectively, have you?
15
A.
Have I personally tested it objectively?
16
Q.
Yes.
17
18
19
20
Have you personally tested the results
that you're receiving from the whales objectively?

A.
Can you give me an example of what that might
entail?
Q.
Analyzing the data that says killer whales
21
are behaving in X ways, and as a result of looking at a
22
sample of those responses, determining whether there are
23
some other reasons that they're responding positively
24
other than sort of being given food or some other
25
reinforcement?
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A.
This is what I've seen in 25 years.
Q.
I guess my question is, you don't have any --
you asked me to give you an explanation.
My question is
do you have any scientific evidence that this positive
reinforcement that is used at Sea World actually
increases the frequency of behavior?
A.
Yes.
Q.
Other than your experience?
A.
Other than my 25 years of experience.
10
Q.
Other than your 25 years of experience.
11
A.
Well, I would say the majority of the animal
12
training community uses positive reinforcement to
13
increase the frequency of behavior in zoological
14
settings.
15
and you see the animal does something, we apply
16
reinforcement, the frequency of that behavior increases.
17
To me, that is evidence.
18
19
So, I mean, when I watch it on a daily basis
MS. GUNNIN:
Judge, can we have a break at this
point?
20
JUDGE WELSCH:
21
be a good stopping point?
22
23
Ms. Howard-Fishburne, would this
Judge, if I could just
finish this one point.
24
JUDGE WELSCH:
Okay, go ahead.
25
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Q.
And, assuming that if your statement is
correct that positive reinforcement increases the
frequency of behavior, there are still situations where
the animals do unpredictable behavior; isn't that
correct?
A.
Behavior is very predictable.
Q.
That's not the question.
They do things that you didn't expect?
The question is,
despite your having this relationship and experience
with a killer whale and reinforcing certain behavior,
10
there are still situations where the animal behaves
11
unpredictably?
12
A.
Can you give me an example?
13
Q.
Tilikum as an example.
Based on your
14
testimony, you never would have thought he would have
15
behaved in the way that he did on February 24, 2010?
16
A.
17
18
JUDGE WELSCH:
19
That's true.
We can take a break.
Let's take a ten-minute break.
Be back of the 10 minutes 'til.
We stand adjourned.
20
21
22
JUDGE WELSCH:
23
Ms. Mairot, I'll remind you again you're still
24
25
under oath.
THE WITNESS:
Yes, sir.
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Thank you.
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1414
JUDGE WELSCH:
BY MS. HOWARD-FISHBURN:
Q.
5
6
I have a couple more questions.

Earlier, your attorney asked you some
questions regarding the Loro Parque incident --
A.
Yes.
Q.
-- in 2009, and your testimony was that there
were layers of mistakes?
10
A.
Yes, ma'am.
11
Q.
I do.
12
A.
May I see it?
13
Q.
At some point, I will show it to you.
14
A.
Okay.
15
Q.
But, I guess my question is, you mentioned
16
17
Do you have copy of the report?
that there were layers of mistakes?

A.
There were reinforcement issues.
The part
18
that I really remember the most from the video was once
19
Alexis tried to get out at stage and Keto pushed him
20
back and didn't allow him to come out at stage, Alexis
21
asked for Keto to be called away from him.
22
I think that was too fast.
I think they
23
should have just waited just a second and let Keto just
24
settle down, could have asked him for a high frequency
25
behavior.
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Keto did go to stage, as I recall, and then
they asked Alexis to -- from the video footage that I
saw, you could tell Keto was not sitting up at stage in
a relaxed position.
He was cantered.
I would have, if it was me and I was working
that whale, I would have gotten a bucket, scooted him
down, started reinforcing him for coming over,
reinforcing him for following me, reinforcing him for
doing maybe a vocal or something small right there, and
10
waited for his body posture to change and settle, in the
11
meantime asking Alexis to scull backwards, back toward
12
the glass or the slide-out or something away from Keto.
13
And, their option was they asked Alexis to
14
come out towards Keto, and that's when Keto went to him
15
again.
16
exit the wrong way.
17
that were made.
In my opinion, they rushed it, they tried to
18
Q.
19
JUDGE WELSCH:
20
Those were some of the mistakes
I think you said that -Had you ever seen the profile
history of Keto?
21
THE WITNESS:
Yes, sir.
It's been a long time.
22
JUDGE WELSCH:
I assume under your profiles, you
23
have sort of a description as to what certain behaviors
24
are of the different whales, and I assume you had have
25
one for Keto.
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THE WITNESS:
There should be a profile for
him.
with Keto when he was much younger, and so that profile
would have started with him then and it follows him.
It would have been in Loro Parque.
JUDGE WELSCH:
I did work
I guess where I'm going is you're
giving your opinion based upon the video of what you saw
in terms of the trainer's activities, or in your mind
incorrect activities that they did, but doesn't the
profile of the whale also play a role --
10
THE WITNESS:
Absolutely.
11
JUDGE WELSCH:
-- in what the appropriate
12
behaviors are?
13
THE WITNESS:
Yes, and I do know a little bit
14
about that whale, but also there are other things like
15
the body posture of what Keto was exhibiting at stage is
16
something that I've seen before, where if a whale is
17
completely paying attention to you and engaged with you,
18
they're most likely to be sitting looking at you.
19
You can see from the video that Keto is like this
20
(demonstrating).
21
the water.
22
He's still looking at the trainer in
Knowing that we're already in trouble, knowing
23
that we're already having some issues, he already
24
refused to take Alexis out and pushed him back into the
25
pool.
That would be something I really wouldn't want to
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see and ask Alexis to come toward me.
away.
Alexis goes back
So, if you're struggling with, you're frustrated,
you're not like raging mad, but you're frustrated and
someone comes up and is poking at you, that's probably
going to frustrate you more.
most people would respond negatively to that.
that person doesn't want to have you get more frustrated
with them, maybe leaving the room.
10
I would say in general

Where if
And, that's kind of the idea that having Alexis go
11
back out of the direct path of Keto would probably have
12
been a better call at that point, and that is just based
13
on different circumstances I've seen, kind of compiling
14
all that data that I have of the watching different
15
whales, how they position themselves and what that would
16
indicate.
17
JUDGE WELSCH:
That's your best call --
18
THE WITNESS:
That's my best call.
19
JUDGE WELSCH:
But, you really don't know if the
20
result would have been the same even if they had done
21
what you
22
--
THE WITNESS:
I do not know for sure, no, sir.
23
I don't know that anybody could.
24
would have done that differently.
25
sure.
CARLIN ASSOCIATES
But, I know that I

I do know that for
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1418
Q.
You also testified that the trainers
panicked?
A.
I think they moved too quickly, yes.
Q.
I think the term you used was panicked.
6
7
8
9
What caused you to believe that they panicked

from watching the video?
A.
from him.
How quickly Alexis wanted that whale away

If I was standing there, my immediate
10
response to him would have been, "You're okay.
11
relax for a second."
12
wanted Keto to go away indicated that he was nervous,
13
scared, panicked, any sort of that term.
14
15
16
Q.
Just
I think the quickness at which he
Have you reviewed the Loro Parque incident
report?
A.
I cannot recall if I actually saw the report.
17
I talked about it so much, I can't remember if I saw the
18
report, but I do know I watched the video.
19
20
21
Q.
When you say you talked about it so much, at
what point would you have talked about it?

A.
We talked about it when Scarpuzzi came, and
22
I've talked about it with OSHA, I've talked about it
23
with you.
24
hard to remember if I actually looked at the report or
25
if it's all just video.
So, I've dialogued a bit about it, and it's
I can't remember.
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1
2
Q.
I want to show you what has been marked Sea
World 2722.
It's a part of C-6.
A.
Okay.
Q.
Bates 2722 to 2728 of Sea World, do you
recognize that document?
A.
It's a corporate incident report.
Q.
And, it's regarding the Loro Parque incident?
A.
It does say Loro Parque, yes, it does.
Q.
And the date of incident?
10
A.
12/24/2009.
11
Q.
And the trainer involved I think you've
12
called him Alexis?
13
A.
Alexis, yes.
14
Q.
And, Brian Rokeach is a trainer also listed?
15
A.
That was present, yes.
16
Q.
He was a supervisor?
17
A.
18
Q.
Now, you're familiar with the corporate
19
incident reports, correct?
20
A.
How they play out, yes; how they're written.
21
Q.
And, after the originating park provides
22
their comments, then other parks provide comments
23
regarding the incident; is that true?
24
A.
Yes, ma'am.
25
Q.
And, in this instance, Sea World of Florida
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provided comments regarding the incident.
that on Page 5 of the document?
Do you see
A.
Yes, ma'am, I'm right there.
Q.
Can you show me anywhere in the comments
provided by Sea World of Florida where it says that Mr.
Martinez or the training team panicked or rushed the
situation?
A.
It might not say that.
Q.
That's your opinion.
10
A.
Do you want me to take the time to read it?
11
Q.
Sure.
12
A.
(Witness Complies).
13
Q.
When Mr. Scarpuzzi came to Sea World of
You can take your time.

I don't see it in there.
14
Florida to brief the Company on this issue, he never
15
used the words that the team had panicked or had rushed
16
the situation?
17
A.
18
No, that is my opinion from watching the
video.
19
Q.
It's your opinion?
20
A.
Yes, it is my opinion.
21
Q.
Which is different than Mr. Scarpuzzi's
22
opinion?
23
A.
I don't know exactly what Mike's opinion is.
24
Q.
Well, he never provided that information to
25
the team; isn't that true?
CARLIN ASSOCIATES
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A.
Okay.
Q.
He never said that they had rushed the
situation or that the team panicked?
A.
I don't recall him saying that, no.
JUDGE WELSCH:
As the supervisor, is part of
your job to be involved in writing the responses for Sea
World of Florida?
process?
Are you in that collaborative
THE WITNESS:
Sometimes.
It will go in a
10
variety of ways.
11
assistant curator, sometimes we'll have group
12
discussions, sometimes it will come across my desk,
13
like, "Can you start this?"
14
usually involved in some aspect of the dialogue.
15
Sometimes I'll just dialogue with my
JUDGE WELSCH:
So, it just depends.
I'm
I guess what I've heard in
16
earlier testimony, the responses by the individual parks
17
are more a collaborative and not just one person's
18
opinion.
19
20
THE WITNESS:
Usually, that is the case, yes,
JUDGE WELSCH:
So, could I accept that as kind
sir.
21
22
of a general response from Sea World of Florida in terms
23
of --
24
25
THE WITNESS:
Yes.
Not necessarily my own
individual, but probably lots of people's thoughts and
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1
2
opinions.
And, I think when I was dialoguing about this, I
was asked what I would have done.
So, I was giving my
opinion of how things played out and what I would have
done differently.
Q.
Your opinion isn't recorded on the document?
A.
Not verbatim, no, ma'am, it's not.
Q.
Is any of your opinion about rushing or
10
11
12
13
panic, anywhere in the document?

A.
No, ma'am, not in this part that I've read so
far; just this part, no, ma'am.

Q.
You also mentioned earlier that one of the
14
reasons for the incident at Loro Parque was the
15
inexperience of the trainers?
16
17
A.
I was asked what my opinion was, and that is
one of my opinions, yes, ma'am, right.
18
Q.
19
that correct?
20
A.
That's what his title is, yes, ma'am.
21
Q.
And, he was at Loro Parque at the time of the
22
But, Mr. Rokeach, he was a supervisor; isn't
incident, correct?
23
A.
Yes, ma'am.
24
Q.
And, he was supervising the activities as
25
they related to the killer whales that are at Loro
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Parque, correct?
A.
Yes, ma'am, that's how it appears.
Q.
And, you wouldn't consider Mr. Rokeach to be
an inexperienced trainer, would you?
A.
I don't know Brian; never worked with him.
Q.
Aside from knowing him, his title alone says
that Sea World believes him to be experienced.
the title of supervisor, correct?
9
10
11
12
A.
He held
He held the title of supervisor, yes, ma'am,
he did.
Q.
And, to become a supervisor at Sea World, you
have to have some experience, correct?
13
A.
Yes, ma'am.
14
Q.
And, in fact, Brian was actually on stage at
15
Loro Parque holding Keto; isn't that correct?
16
A.
He was part of the session, yes, ma'am.
17
Q.
Now, turning to the February 24, 2010,
18
incident, the trainers at Sea World of Florida are out
19
of the water; isn't that correct?
20
water work?
They're not doing
21
A.
Since that date, that's correct, ma'am.
22
Q.
Do you know why the trainers are out of the
23
water?
24
A.
Because we're in this process.
25
Q.
Is that the only reason why the trainers are
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not in the water?
A.
Well, Jim has asked that we take a step back
and reevaluate.
We're implementing different things,
like safety procedures and reevaluating.
Q.
When you say, "Jim," who is Jim?
A.
Jim Atchison.
Q.
What is his title at Sea World?
A.
What is his title now?
9
10
his -- I can't recall what his new title is.
JUDGE WELSCH:
In Sea World of Florida or Sea
World corporate?
13
THE WITNESS:
He is over the Sea World Parks,
14
Entertainment Parks, all of them.
15
them.
16
17
Q.
18
19
20
21
22
23
24
25
He's our
big, big boss.
11
12
I don't really know
He's over all of
So, Mr. Atchison made the decision that
killer whale trainers be out of the water as a result?

A.
Until we've finished evaluating our safety
protocol.
Q.
What about your safety protocol needs to be
evaluated?
A.
I think we are going through it line-by-line
just to see where we're at.

Q.
Have you been a part of that process?
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A.
Yes, ma'am.
Q.
Is there any particular portion of the safety
protocol that's being looked at as a result of the
February 24, 2010, incident?
A.
I think that's what I just said.
We're going
through it all.
no stone unturned, just to see where we're at.
8
9
10
11
Q.
We're going through everything, leaving
I understand you're going through everything,
but are you saying the whole program needs to be

revamped?
A.
Oh, no, that's not what I'm saying at all.
12
I'm saying we're looking at all, we're evaluating
13
whether it's good or it needs to be changed.
14
Everything.
15
16
17
18
Q.
We're looking at it all.
And, no decision has been made as to whether
or not it needs to be changed after almost two years?

A.
We have made some changes.
We have
implemented some things.
19
Q.
What changes have you made?
20
A.
We have some new net boxes around the pools,
21
we have a different siren system, we have implemented a
22
new ERP the way we have these phones so that there's
23
actually people who are connected to the phone so they
24
security hit the button, and it sends out an alarm
25
through the phones; things like that just to make our
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response quicker, more efficient.
There's false bottom floors going in in
different pools, there's a variety of things that are in
progress.
Q.
Has there been a conclusion that the
emergency response to Ms. Brancheau's incident was not
adequate?
A.
Not that I know of.
Q.
Why is it being changed by Sea World?
10
A.
It's being looked at.
Everything is.
11
think that's the responsible thing to do is take a step
12
back and take a look at things and see where you are.
13
Reevaluate.
14
15
Q.
Was there a problem with trainers hearing the
alarms on February 24, 2010?
16
A.
No.
17
Q.
But, you did mention that there's a new siren
18
system?
19
A.
Yes.
20
Q.
And, that came about as a result of the
21
February 24, 2010, incident?
22
A.
Yes, it did.
23
Q.
Do you know why?
24
A.
The use of improved technology.
25
Q.
In what way will that increase safety at the
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1
2
Sea World of Florida Park?

A.
It ensures that there are people who are
always on the ready to come into the stadium and help
with whatever is needed and that we don't have an
overflow of people come in; that there's an appropriate
amount of response and not too many because too many can
be confusing or too many can be too many people to
choose from.
So, this is just there's a certain amount of
10
people that are on those phones that paired with the
11
Shamu team, they're supposed to come in and help us
12
should something arise.
13
14
15
Q.
So, was there an overflow of response to the
Brancheau incident?
A.
Not, that's not what I'm saying.
You asked
16
me how -- I'm just saying it brings balance.
17
a new system that we can implement to improve our
18
response time to improve the whole event should
19
something occur again.
20
21
Q.
It's just
Well, pre-February 24, 2010, there was an
alarm system, correct?
22
A.
Yes, there was.
23
Q.
And, there's been no evidence that the
24
trainers that were in the building couldn't get to the
25
area to assist; isn't that correct?
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A.
No, we all came.
Q.
Correct.
So, my question is, if the siren or
the alarm was working properly, then what is the purpose
of enhancing something that's unlikely to have an effect
on increased safety?
MS. GUNNIN:
question.
witness.
This has been asked and answered of this
JUDGE WELSCH:
Ms. Howard-Fishburne, I don't
10
know that I see the relevance.
11
for inadequate emergency procedures.
12
They haven't been cited
Your Honor, there's been
13
a lot of testimony about different steps that Sea World
14
had taken in response to different incidents, and
15
different supervisors have come and testified that Sea
16
World has changed this or changed that, and they either
17
don't know or there seems to be no correlation to the
18
incident.
19
So, I'm just trying to figure out if Sea World is
20
attempting to improve its safety, are they just
21
improving to improve, or are they actually improving
22
something that's actually going to help their trainers
23
to be safe at work.
24
25
So, if you have a system that's already working,

why invest in something that appears to not provide any
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added safety to a trainer.
figure that out, but I'll move on.
JUDGE WELSCH:
Yes, let's move on.
So, I was just trying to
The objection is sustained.
Q.
So, there's been no conclusion by Sea World
of Florida that it's safe to return to the water; is
that your testimony?
A.
I don't know that I would say that.
I am not
10
the person who is part of those conversations of where
11
that is, whether in the water, that's above me.
12
not in the pool today.
13
14
Q.
17
18
That's all I can tell you.
You're not in the pool because Sea World
hasn't determined that it's safe?
15
16
We're
A.
I don't know that that's why we're not in the
Q.
Just so that we're clear, the incident that
pool.
involved Ms. Brancheau was not a water work, correct?
19
A.
That's correct.
20
Q.
Yet, Sea World of Florida and all the other
21
Sea World Parks are not performing water work, correct?
22
A.
That is correct.
23
Q.
What about the dry work interaction that Ms.
24
Brancheau was engaged in on February 24, 2010, caused
25
Sea World to make the decision to cease doing water
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1
2
work?
A.
I cannot speak to that.
I did not make that
decision, it's above my level.
there who -- I watch over the trainers and the whales.
I don't make those decisions.
speak to that position.
Q.
I'm just the supervisor
I'm not qualified to
I understand that you're not qualified to
make the decision, but has your supervisor communicated
to you at all why water work is no longer being done in
10
11
the park?
A.
I think I answered that in saying that what
12
we're doing right now is we're reevaluating everything.
13
We're taking a step back, going through this process and
14
reevaluating.
15
Q.
16
That's what we're doing right now.
And, when you say, "going through this
process," what process are you talking about?
17
A.
OSHA.
18
Q.
So, you're waiting until this process is
19
20
All this.
We're doing this process.
concluded?
A.
I didn't say that.
I said this is what we're
21
doing, and that we're reevaluating everything.
22
what I said.
23
24
25
questions, Your Honor.
JUDGE WELSCH:
That's
I don't have any more
Thank you.
Let me just ask a few questions.
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In terms of the trainers, the trainers that are
hired for the Shamu Stadium are they hired specifically
for the Shamu Stadium, or are they just hired by Sea
World as an animal trainer?
THE WITNESS:
They're brought into animal
training department, and then they're placed in the
different stadiums, depending on where the need is at
the time.
JUDGE WELSCH:
The people that work at Shamu
10
Stadium are not involved in the interviews and the
11
selection of the animal trainers that work at Shamu
12
Stadium?
13
THE WITNESS:
They're not unique and there is
14
no unique selection process just for them.
15
you're asking?
16
17
18
JUDGE WELSCH:
it.
Is that what
That's a better way of asking
That was a better question.

Can you tell me back in 2010 February, what are
19
the qualifications for an animal trainer to be hired at
20
Sea World.
21
22
23
24
25
THE WITNESS:
What we're looking for is, first
of all -JUDGE WELSCH:
I mean are there written
qualifications?
THE WITNESS:
To come in as an associate --
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JUDGE WELSCH:
Minimum qualifications to come in
as an associate trainer.
THE WITNESS:
Sure.
You have to pass that swim
test that we talked about before.
Blue Horizon Stadium.
process.
7
8
9
JUDGE WELSCH:
That's done at the
You do go through an interview
But, I guess is there any
background, prior experience, education, qualifications?

THE WITNESS:
Yes, sir.
10
JUDGE WELSCH:
What are those qualifications?
11
THE WITNESS:
We're looking for you have to
12
have scuba certification and CPR preferred, we do like
13
to see a background in one of the animal sciences or
14
psychology.
15
see college education.
16
17
Those are our preference, but we do like to
JUDGE WELSCH:
When you became an animal
trainer, your graduated in '85, I guess, `86?
18
THE WITNESS:
I did graduated in '85, yes, sir.
19
JUDGE WELSCH:
Is that from college?
20
THE WITNESS:
No, sir, from high school.
21
JUDGE WELSCH:
And, you were hired as an animal
22
trainer back then?
23
THE WITNESS:
Yes, sir.
24
JUDGE WELSCH:
So, the qualifications have
25
changed over the years?
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THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Now, on the shows, I don't know
if this is seasonal or what, how many shows do you have
in a day?
THE WITNESS:
It does depend on the attendance.
For instance, right today, there are two shows, but the
last couple of weekends, the last weekend in October, we
had an event in the park called Spooktacular, and we did
seven shows a day.
10
So, it just depends on what's going on in the
11
park.
12
daily basis for a long period of time.
13
ready to enter into Christmas, and that will be again
14
extended hours, more shows.
15
16
17
18
In the summer, obviously, we do more shows on a
JUDGE WELSCH:
We are getting
So, somewhere from two shows to
seven shows?
THE WITNESS:
Yes, sir.
That's reasonable,
yes, sir.
19
JUDGE WELSCH:
Depending on the season?
20
THE WITNESS:
Yes, sir.
21
JUDGE WELSCH:
And, the shows, they're about
22
how long?
23
THE WITNESS:
They're about 30 minutes long.
24
JUDGE WELSCH:
30 minutes?
25
Now, at the time
back in 2010 with Ms. Brancheau, you had the Dine With
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Shamu show.
no longer taking place?
THE WITNESS:
It isn't, no, sir.
JUDGE WELSCH:
Is there anything going on in
I thought if I heard you correctly, that's
that G Pool now?
Is there a show going on there?
THE WITNESS:
That pool is under modifications
right now, and we haven't had access to it for quite
some time.
JUDGE WELSCH:
So, the shows that you're
10
talking about, the two to seven, are in that main
11
stadium show, that A Pool?
12
THE WITNESS:
Yes, sir.
13
JUDGE WELSCH:
And, is that the only place that
14
you perform the shows currently?
15
THE WITNESS:
Yes, sir.
16
JUDGE WELSCH:
And, I think after that Dine
17
With Shamu show, you had kind of underwater photography
18
going on for people that did that.
19
on?
20
THE WITNESS:
21
access to that pool.
22
quite some time.
23
JUDGE WELSCH:
Is that still going
No, the whales don't even have

We have not had that pool for
Let me see if I can ask this.
24
If I understand it, since the accident to Ms. Brancheau
25
in February of 2010, I want to make sure I understand
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it.
With Tilikum, you're still performing shows with
Tilikum?
THE WITNESS:
Yes, sir, he does shows.
JUDGE WELSCH:
They are dry work shows?
THE WITNESS:
Yes, sir, we do them from along
6
7
the front panels of glass.

JUDGE WELSCH:
Is there some kind of barrier or
plexiglas kind of barrier between the trainer and
Tilikum while he's doing the show?
10
THE WITNESS:
There's the glass panels that we
11
do -- we are allowed to pull him up on the slide-out,
12
and there's not a plexiglas panel there, but there is a
13
distance that we're back from him.
14
15
JUDGE WELSCH:
You have to stay back.
The
Tilikum trainers have to stay back?
16
THE WITNESS:
Yes, sir.
17
JUDGE WELSCH:
Approximately how far?
18
THE WITNESS:
During the show, they're
19
probably about as wide as this and then his head is not
20
all the way to the end.
21
JUDGE WELSCH:
22
half to three feet?
Would you say that's two and a
23
THE WITNESS:
Sure.
24
JUDGE WELSCH:
The trainers, when they're
25
dealing with Tilikum, no longer get down on their knees
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2
or lay down?
THE WITNESS:
No, sir.
Currently, we do not
step into his pool unless we have him in the med pool,
and we lift the floor and he's completely dry.
5
6
7
JUDGE WELSCH:
So, all your husbandry
activities with Tilikum, are they done in the med pool?

THE WITNESS:
We can do them out in the pool
adjoining the med pool as long as he has access to that
med pool, but we also do them in the med pool.
10
11
We mix
it up.
JUDGE WELSCH:
Are you able to do the husbandry
12
activities for Tilikum behind those barriers or with the
13
floor being raised up from the pool?
14
THE WITNESS:
We're able to do some of them.
15
We haven't had to do -- the ones that we do on a daily
16
basis are we apply honey to his tail, we flush his teeth
17
but we can't do any -- we would have to lift him on the
18
floor to go out and do injections, and things like that.
19
And, there are things that we haven't come into yet to
20
see how we would have to do them.
21
JUDGE WELSCH:
I assume you're no longer or
22
your other trainers are not longer putting their arm
23
down his throat?
24
THE WITNESS:
That is correct, sir.
25
JUDGE WELSCH:
So, since the accident, that's
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changed for Tilikum?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
And, I guess that's something
the Company is currently reevaluating as to what kind of
protocol they want to have for Tilikum in the future?
THE WITNESS:
I think so, yes, sir.
JUDGE WELSCH:
Now, with regard to Tilikum in
the shows, is Tilikum able to perform all the activities
or behaviors -- I think you called them behaviors -- all
10
the behaviors that you ask of him before the accident to
11
Ms. Brancheau, is he able to do those same behaviors or
12
perform those same behaviors during the show now?
13
14
THE WITNESS:
husbandry things.
We're not talking about the

I just said we haven't --
15
JUDGE WELSCH:
No, I'm not --
16
THE WITNESS:
Okay, so we're talking strictly
17
18
19
that stuff in the front pool, the show behaviors.

JUDGE WELSCH:
The show behaviors that you had
him performing before Ms. Brancheau's accident.
20
THE WITNESS:
Right.
21
JUDGE WELSCH:
Are you able to perform those
22
same behaviors now with Tilikum with the trainers in the
23
situation that they're in now?
24
25
THE WITNESS:
everything.
We have figured out almost
There's a few things we're still trying to
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figure how to do, but we're almost there.
few behaviors that we haven't quite figured out how to
set it up since we're now at the glass and not at stage,
but we're --
5
6
7
JUDGE WELSCH:
There are a
Can you tell me some of the
behaviors you're having a problem with?

THE WITNESS:
There's this one behavior that's
called directional fluke splash, and it's just trying to
communicate to him when we're at a different angle where
10
we want him to go.
11
will just take a little more time with him having
12
session and time out there communicating with him.
13
JUDGE WELSCH:
So, it's just things like that.
It
Now, with regard to the other
14
whales, at the time of the accident in February of 2010,
15
other than Tilikum, were there any other whales at
16
Orlando Park that you could only perform dry work with?
17
THE WITNESS:
Yes, sir.
18
JUDGE WELSCH:
Taima?
Taima.
And, the dry work you
19
were performing with Taima, was that kind of the same
20
restrictions that you had with Tilikum?
21
THE WITNESS:
It depended.
If she was in
22
Tilikum's environment, then she automatically fell under
23
his same protocol.
24
she kind of went back and forth.
25
worlds.
If she was with the rest of the pod,

She lived in both
If she was with the other pod, we would modify
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around her.
her through water work with another whale.
would have closer contact with her than we would if she
was with Tili.
By that, I mean we wouldn't exit or enter
JUDGE WELSCH:
But, we
Any other whales at the time in
February of 2010 that you were also having modifications
in terms of the interactions between the trainer and the
whale in terms of doing dry work?
THE WITNESS:
Taima has since passed, so we
10
don't have her with us anymore, and all the rest of the
11
whales we have and that were with us at that time were
12
water work animals.
13
JUDGE WELSCH:
Now, since the accident, if I
14
understand it, all the other whales -- so I'm leaving
15
Tilikum aside.
16
THE WITNESS:
Right, he's different.
17
JUDGE WELSCH:
So, you're doing dry work with
18
19
20
21
those whales?
THE WITNESS:
Yes, sir.
We're not in the
water.
JUDGE WELSCH:
Are there any restrictions in
22
terms of dry work that you are doing with the other
23
whales?
24
trainers, are they permitted to lay down on the
25
slide-out?
Do you understand what I'm saying?
If terms of
Are they permitted to kneel, or are they
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permitted to hold or touch the tactile activities with
the other whales currently?
THE WITNESS:
We have some restrictions, not
as regimented a Tilikum, obviously.
want to give a whale a rubdown, before I can initiate
that, I have to have them in line-up position.
without any type of bar or wall or barrier, touch them
on the face except for husbandry purposes.
do a rubdown, we can line them up and approach them and
10
For instance, if I
I can't,
But, we can
give them a rubdown on the back or the belly.
11
JUDGE WELSCH:
You would have to --
12
THE WITNESS:
After we get them into position.
13
So, we can approach them, but there are some guidelines
14
to that.
15
JUDGE WELSCH:
Are there any other guidelines?
16
How about during, I guess, this rubdown that you're
17
talking about, is that done during the show?
18
19
20
THE WITNESS:
It can be, yes, sir.
It's
reinforcement that we can apply during the show.

JUDGE WELSCH:
Are there any other restrictions
21
that you're currently instituting with regard to the
22
other whales during the show performances in terms of
23
the trainers' interactions with the whale?
24
25
THE WITNESS:
Well, we don't necessarily make
the distinction that there are rules for the show or not
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and rules that are different when you're outside the
show.
It's all the same.

JUDGE WELSCH:
I just want to make sure.
understand what you're saying, but I want to make sure
whatever changes you're talking about applies to the
shows.
Now, whether or not you do them outside or --
THE WITNESS:
Well, like another thing that we used to be able
It's all the same, yes, sir.
to do that we can't do anymore is we can't hug them,
10
like ask them to come up and do a hug.
We have started
11
training that behind a little barrier.
I think those
12
are the biggest modifications.
13
JUDGE WELSCH:
So, you currently have some kind
14
of barrier that you use if you're going to touch them
15
around the mouth area?
16
THE WITNESS:
Back stage we have these bars
17
that have always been there; not always but since I've
18
worked in that stadium they've been there.
19
going to do a mouth exam or something like that, we do
20
it back there.
21
22
23
So, if we're
JUDGE WELSCH:
Do you use the bars during the
THE WITNESS:
We have these mobile bars that
show?
24
we don't use very often, but we can use them if we
25
wanted to, and we use them frequently enough to keep the
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reinforcement history there because we have desensitized
the whales to them, so we do it on purpose, but we don't
use them that often.
JUDGE WELSCH:
I want to make sure.
Are there
any other changes or things that you're currently doing
in terms of your interactions with the other whales
during the performances?
THE WITNESS:
Obviously, the most obvious one
is the no water work.
10
JUDGE WELSCH:
I understand that.
11
THE WITNESS:
Right, you understand that.
12
JUDGE WELSCH:
But any other restrictions with
13
regard to the dry work?
14
about you did have some --
15
THE WITNESS:
You have talked a little bit
The application of the tactile
16
to the face, anything in front of the blow hole really
17
is --
18
JUDGE WELSCH:
If you do any tactile work in
19
front of the blow hole, is that when you have to use
20
that moveable bar or whatever you call it?
21
THE WITNESS:
Yes, sir.
22
JUDGE WELSCH:
If you're not doing the tactile
23
work, are there any current restrictions in terms of how
24
close the trainer can get to the front of the whale, the
25
mouth area?
Do you have any restrictions?
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1
2
THE WITNESS:
So, like when I'm just standing
pool side?
JUDGE WELSCH:
Yes.
THE WITNESS:
Then, I stand about three feet
JUDGE WELSCH:
The reason I'm asking is because
back.
6
7
this is similar to what Mr. Scarpuzzi testified to
yesterday, and I didn't know if the same things are
applied.
10
THE WITNESS:
Yes, sir.
11
JUDGE WELSCH:
That was in San Diego.
I didn't
12
know if the same things were applied here in Orlando or
13
not.
14
Is there anything else that you currently --
15
THE WITNESS:
16
17
Not that I can think of off the
top of my head, sir.

JUDGE WELSCH:
Now, in terms of these things
18
that you currently have in place for the other whales,
19
are there any problems being presented during the shows
20
with these other whales in terms of the their behaviors
21
in terms of going through the behaviors that you want
22
them to go through during the show that you can't do for
23
whatever reason now versus before February of 2010 other
24
than being in the water?
25
THE WITNESS:
Right.
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JUDGE WELSCH:
The big difference was you're in
the water and in the water activities is where the
trainer would be riding the whale or being thrown out of
the water with the whale taking then out of the water
and those kinds of things.
THE WITNESS:
Right.
JUDGE WELSCH:
So you're certainly not doing
those now?
THE WITNESS:
Right.
I'm not sure I'm
10
understanding your question.
For me, if we had back
11
that close contact that we had before, to me that is the
12
place where we can maximize our care for the animals,
13
and you can't restrict it to just certain pools at
14
certain times.
It has to be all the time, part of life.
15
When you start narrowing it down and saying it can
16
only be here and now, that's when you set up a situation
17
where when the animal is not feeling well, somebody
18
could get hurt because it's predictable, and it's
19
reinforcement history.
20
So, can I ask the animal to do a bow without
21
having as full access as I used to have?
22
Can I care for them to the degree that we used to?
23
don't think so.
24
so.
25
Certainly.
I
My personal opinion is I don't think
I think it's better to have if we have that close
CARLIN ASSOCIATES
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physical contact.
earlier, Kalina, how when she was sick doing that
gastric tube with her, and I worked with that whale for
25 years, and when she wasn't feeling well, and I gave
her a rubdown, I could feel it.
water, I could feel the way she was changing her body
and the way she was positioning herself.
that physical contact, it does alter our ability to get
ahead of things that are happening with them.
10
For me, you know, I talked about her
I could feel it in the
So, not having
It just
does.
11
Does that answer your question?
12
JUDGE WELSCH:
13
Ms. Gunnin?
14
MS. GUNNIN:
15
questions on Redirect.
It does.
Thank you, ma'am.
Yes, Your Honor.
16
I have a few
---o0o---
17
18
BY MS. GUNNIN:
19
Q.
Ms. Mairot, you were asked by Ms.
20
Howard-Fishburne about the desense of Tilikum, and you
21
described a little bit in Direct testimony about what
22
that desense, how those work.
23
efforts made to desense Tilikum in the med pool to a
24
person being in the pool?
25
A.
How often were those
Oh, the med pool stuff with Tili?
CARLIN ASSOCIATES
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Gosh, it
1446
could be probably on average once a week probably where
we would take him in and lift him and do a little
session through the gate; do something like that.
4
5
Q.
Were you doing that any time in recent
history before February 24th?
A.
Absolutely.
Q.
Do you recall when that would have been?
A.
Like a specific date?
Q.
Just the time frame of when that would have
10
I'm sorry.
occurred?
11
A.
Oh, I mean, I don't have a particular session
12
in mind, but it was just something that we would do with
13
him.
14
and rub up under his dorsal and then do a little work or
15
someone would dive in the med pool and do a session with
16
him through the gate and do the call-back or anything
17
like that.
It was a normal part of we would take him in there
18
Q.
What was the purpose of doing that?
19
A.
It was in the hopes that if someone were to
20
fall in the water with him, that he would have some
21
experience of what that person might look like in the
22
water, and what an appropriate response would be.
23
Q.
You were asked about the area where Ms.
24
Brancheau was on the date of the accident on
25
February 24th.
Was that an area that you or other
CARLIN ASSOCIATES
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trainers on Tilikum's team had been before with Tilikum
in the Dine With Shamu pool?
3
4
A.
Yes, we had all walked around the pool with
him before.
Q.
to get up on?
A.
8
9
10
11
And, is that an area that Tilikum was known
Oh, no.
None the whales would get up on that
place.
Q.
Why is it that the whale wouldn't get up on
that area?
A.
Well, opinion is the way the rocks were on
12
the wall and how the rocks were on the deck there, they
13
just would not.
14
to put their chin on there.
15
really enjoyed.
16
17
Q.
We had a hard enough time training them
The there had been no experience with any of
the killer whales getting up onto that area?
18
A.
19
JUDGE WELSCH:
20
No, none.
MS. GUNNIN:
22
on February 24th.
24
25
What is the area you're talking
about?
21
23
That wasn't a place they
JUDGE WELSCH:
slide-out.
The area where Ms. Brancheau was
Because I thought that was the
Was I wrong?
MS. GUNNIN:
No, Your Honor.
CARLIN ASSOCIATES
It was not the
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1448
slide-out.
BY MS. GUNNIN:
Q.
Ms. Mairot, can you describe that a little
bit more?
A.
JUDGE WELSCH:
MS. GUNNIN:
Okay.
I think we have pictures.
Yes, Your Honor, there are some
photographs.
JUDGE WELSCH:
And I think there was, I think
10
it was probably identified when we were here last where
11
that accident occurred.
12
13
Can you just look at C-3, please?
I think it's
C-3.
14
THE WITNESS:
Sure.
15
JUDGE WELSCH:
C-3, that's the G Pool where
16
the Dine With Shamu show was?
17
THE WITNESS:
Yes, sir, it's on this 2672.
18
JUDGE WELSCH:
I think we have marked the
19
photographs A, B, C.
So you're talking about --
20
THE WITNESS:
This is what yours looks like?
21
JUDGE WELSCH:
So that's --
22
THE WITNESS:
The third one, or I don't know
23
24
25
if ours are in the same order.

JUDGE WELSCH:
I thought they were all marked.
I guess the Court Report didn't mark them the way I
CARLIN ASSOCIATES
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asked her to.
2672.
THE WITNESS:
that says "ledge."
4
5
JUDGE WELSCH:
Mine has a little thing
And that's the point -- is that
the area you're talking about?
THE WITNESS:
Dawn was, yes, sir.
JUDGE WELSCH:
Okay.
I believe that the area that
And, you say the whales didn't
like to get up in that area?
10
THE WITNESS:
That the whole gray right
11
there, they would never come up.
12
whale even think about it.
13
JUDGE WELSCH:
14
BY MS. GUNNIN:
15
Q.
I have never saw any
Thank you.
And, this area where Ms. Brancheau was on the
16
24th of February 2010, was that an area you had been
17
previously?
18
A.
Yes, ma'am.
19
Q.
And, had you interacted with Tilikum in that
21
A.
Yes, ma'am.
22
Q.
How close were you when you were interacting
20
23
24
25
area?
with Tilikum in that area?

A.
Close, face to face.
Like he's right here
and I'm right here, close.
CARLIN ASSOCIATES
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Q.
Tilikum?
A.
In that pool was an area you would interact
with him from, yes, ma'am.
5
6
Is that a common area to interact with
Q.
And, if you could describe for the Judge what
is the Dine With Shamu?
A.
What is that?
Dine With Shamu was an opportunity for us to
bring guests kind of into our backyard.
we would talk about it with our team.
This is like,
10
"Come on in, see the behind the scenes."
11
backyard type thing.
12
That's the way
Come into our
So, they would -- in these photos, this 2675,
13
they would eat here at these tables and while they were
14
eating, we would do an interaction with the whale, and
15
we would narrate it.
16
could be any type of session, a learning, it could be
17
water work, it could be relationship, it could be play
18
time.
19
would just talk about our training philosophies, the
20
relationship we had with the whales, anything
21
interesting about that particular animal.
22
do that and then they would just have their Dine
23
experience.
24
25
We would talk about it.
Like it
It could be any type of session we wanted, and we
JUDGE WELSCH:
the regular show?
So, we would
This is more less formal than
That's in the main stadium?
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THE WITNESS:
Exactly.
It didn't have all
this music, all that kind of stuff.
It was supported
sometimes by there was like a little video that would
play.
times, the format, but I believe in February it had a
little intro video that they would watch, and it was
kind of like a Sea World type video, and then we do the
Dine interaction, and then their meal would be done and
that would be that.
We would modify it -- we changed it so many
10
So, it wasn't like Believe or One Ocean or one of
11
our formal shows, but it was an up-close experience for
12
the people.
13
BY MS. GUNNIN:
14
Q.
And, you just looked at the Loro Parque
15
incident report.
16
Do you recall if you wrote the comments?
17
A.
Did you write the comments on that?
I don't recall that I wrote them.
I probably
18
had dialogue about them and input and influence, but
19
those are not my words.
20
Q.
And, when Judge Welsch was questioning you,
21
you mentioned about not having access to the Dine With
22
Shamu pool.
23
that pool?
24
25
A.
And, why is it that there is not access to
They're installing a false bottom for it.
They took all the rock work out and made the pool smooth
CARLIN ASSOCIATES
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1452
and blue like the rest of our facility, and they
modified the Dine area somewhat.
Q.
Is it under construction?
A.
It is totally under construction, yes, ma'am.
Q.
Do you know whether that lifting floor has
worked to the satisfaction of Sea World of Florida?
A.
JUDGE WELSCH:
Lifting floor, is that in that G
10
MS. GUNNIN:
Yes, Your Honor.
11
JUDGE WELSCH:
Is that the G Pool?
12
THE WITNESS:
Yes, sir.
13
MS. GUNNIN:
The Dine With Shamu pool.
14
JUDGE WELSCH:
You tried to install a kind of
15
We still aren't using it.
Pool?
lift floor?
16
THE WITNESS:
Yes, sir.
17
JUDGE WELSCH:
So, there is some hope that
18
19
20
it's going to be reused; the G Pool will be used again?

THE WITNESS:
Oh, yes, sir, I sure hope.
Yes, we sure hope so, yes, sir.
21
BY MS. GUNNIN:
22
Q.
And, you were asked about the incident in
23
1997 with Ms. McMahon-Van Oss that occurred at Sea World
24
of Ohio.
25
protocols; that incident?
Did that result in any kind of change in the
CARLIN ASSOCIATES
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1453
A.
Yes, we went from being able to wear pretty
much anything that we wanted when we were interacting
with the whales to wearing our wet suits.
4
5
Q.
So, when interacting with any of the killer
whales, that would be what you would wear, a wet suit?
A.
Yes, ma'am.
Q.
And, you also testified about Tilikum being
desensed to ponytails.
to ponytails?
10
A.
How do you know he was desensed
Because I had a pony it was close to him and
11
I had opportunities where he could have grabbed it, and
12
he didn't.
13
recognize that he was desensitized to that.
14
Q.
I was able just through experience to
In the current show, the One Ocean Show, is
15
there a time when the killer whales get on stage with
16
trainers?
17
A.
There are times when they're on stage, and
18
there are also times when they're in the slide-out with
19
us, and we're able to be very close to them during that
20
time, yes, ma'am.
21
Q.
22
than Tilikum?
23
A.
24
MS. GUNNIN:
25
And, that would be the killer whales other
Yes, ma'am.
Just one second, Your Honor.
CARLIN ASSOCIATES
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1454
JUDGE WELSCH:
I was just thinking, Sea World's
hours are, what, nine to nine, or I guess that's
seasonal too?
THE WITNESS:
Yes, sir I depends.
JUDGE WELSCH:
What are the hours currently?
THE WITNESS:
Right now, during this week, it
will be nine to six, but as soon as we open Christmas on
the weekends, we'll be open until eleven, and then
starting December 16th, we're nine to eleven all the way
10
11
through until one on New Year's Eve.

JUDGE WELSCH:
So, if you're doing only two
12
shows, you say the shows are 30 minutes, most of your
13
activities are not during shows.
14
interactions with the whales are not during the show
15
itself?
16
THE WITNESS:
Most of your
Right now, yes, sir.
But, in
17
the summer when we're doing seven shows, pretty much
18
most of our activity is in the shows.
19
JUDGE WELSCH:
Okay, fine.
20
THE WITNESS:
Yes, sir.
21
JUDGE WELSCH:
Is there anything further?
22
23
JUDGE WELSCH:
Is she excused as a witness?
24
MS. GUNNIN:
Yes, Your Honor.
25
JUDGE WELSCH:
You're excused.
CARLIN ASSOCIATES
Thank you.
No, Your Honor.
(216) 226-8157
1455
THE WITNESS:
Thank you.
JUDGE WELSCH:
I will instruct you not to
discuss your testimony with other persons who may called
later as a witness in this case.
THE WITNESS:
Thank you.
7
8
9
10
11
12
13
(Witness Excused)
JUDGE WELSCH:
Ms. Gunnin, does Sea World wish
to call their next witness?

MS. GUNNIN:
Yes, Your Honor, if we could
take just a short break, and I'll call the next witness.
JUDGE WELSCH:
Let's take a ten-minute break
and be at 4:00.
14
15
16
JUDGE WELSCH:
17
Ms. Gunnin, does Sea World wish to call its next
18
19
20
21
witness?
MS. GUNNIN:
Your Honor, we will call Ms.
Kelly Flaherty Clark.

JUDGE WELSCH:
Ms. Flaherty Clark?
22
---o0o---
23
24
25
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1456
1
2
3
4
5
6
JUDGE WELSCH:
For the record, would state
your full name and spell your last name, please.

THE WITNESS:
Kelly Flaherty Clark,
F-l-a-h-e-r-t-y C-l-a-r-k.
JUDGE WELSCH:
And, for the record, you have
testified previously in this case?
THE WITNESS:
Yes I have.
JUDGE WELSCH:
Thank you.
Your witness.
10
MS. GUNNIN:
11
---o0o---
12
DIRECT EXAMINATION
13
BY MS. GUNNIN:
14
Q.
15
16
17
18
19
20
Mr. Flaherty Clark, if you could, describe
who is your boss at Sea World of Florida?

A.
I report to John Kerivan who is the Vice
President of Zoological Operations.

Q.
What does that mean that he's the Vice
President of Zoological Operations?

A.
He is the person who reports to Terry
21
Prather, who is the general manager of the park, all the
22
goings on that happen in the zoo department, which is
23
aquarium, animal care, water quality, education, animal
24
training.
25
Q.
Who provides your performance appraisals?
CARLIN ASSOCIATES
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1457
A.
John Kerivan.
Q.
And, if you could explain how is Sea World of
3
4
Florida related to Sea World Parks and Entertainment?

A.
We are all owned by SEA, but we are each a
unique park.
So, I report to John, John reports to
Terry, there's corporate oversight by Brad Andrews,
Chuck Tompkins, Julie Scardiano, but I report to John
who reports to Terry.
Q.
10
related?
11
A.
They are their own park.
12
Q.
And, are they under the Sea World Parks and
13
And, how about the San Diego Park?
How is it
Entertainment corporate structure?
14
A.
15
Q.
Are they under the Sea World of Florida
16
corporate structure?
17
A.
No, they're not.
18
Q.
So they are a separate entity from Sea World
19
of Florida?
20
A.
Right.
21
Q.
And, you don't report to any of the
22
management at Sea World San Diego Park?
23
A.
No.
24
Q.
And, when did you come to Sea World of
25
Florida?
CARLIN ASSOCIATES
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1
2
3
4
5
A.
I started my career at Sea World of Ohio.
came to Sea World of Florida in 1990.

Q.
And, when you came to Sea World of Florida
where did you work in the park?

A.
My first assignment was at Whale and Dolphin
Stadium, and I then went to Shamu Stadium, after a
couple of promotions, was a supervisor at Shamu Stadium,
later went to Sea Lion and Otter Stadium, back to Whale
and Dolphin Stadium and was promoted to curator of
10
animal training.
11
12
13
14
G in 2008.
Q.
As curator of animal training, what areas of
Sea World of Florida did you have oversight of?

A.
I have oversight over Shamu Stadium all the
15
animals and trainers there, our Animal Ambassador Team,
16
the Sea Lion and Otter Stadium as well as the Whale and
17
Dolphin Stadium.
18
Q.
You have testified previously at length in
19
this case, so we're not going to cover everything that
20
you previously testified to, but I did want to cover
21
some points with you, and one was on the incident
22
reports.
23
about this incident report in this case.
We heard lots and lots and lots of testimony
24
From your standpoint as the curator of animal
25
training at Sea World of Florida, what is the importance
CARLIN ASSOCIATES
(216) 226-8157
1459
1
2
to you of an incident report?

A.
Incident reports are really important.
mean, they've been around since 1987, and they have
contributed to a lot of protocol changes, a lot of
philosophy changes and a lot of development of our
craft.
They are a piece of why we are so good at
what we do.
also -- it's been a bit excruciating listening to the
10
So, they're really important to me, but I
testimony around incident reports.
11
As a curator and as somebody with 25 years of
12
experience in the field, it hasn't been easy to sit and
13
listen to one sentence or one incident from 1990 be
14
displayed in this case and not have a full understanding
15
-- by persons and to people who don't have a full
16
understanding of our craft.
17
Q.
What has been frustrating to you about that?
18
What is it that you wanted the Judge to understand about
19
the incident reports?
20
A.
Well, there are several examples.
I guess
21
the best way for me to do this is to pull an incident
22
from 1990 and say, "Well, now, are we still kneeling
23
next to killer whales?"
24
25
In one sentence, asking if we are still

kneeling next to killer whales.
CARLIN ASSOCIATES
Absolutely, we're still
(216) 226-8157
1460
kneeling next to killer whales, but it was written in
this report that in this instance, with all of the
things surrounding this specific instance, it might be a
better decision to be standing.
there's so many things involved around an incident, and
certainly an incident that occurred 17, 18 years ago, to
takes these incidents and use them on their own has been
difficult for me sit back and watch.
That does not mean --
I keep saying I hope -- I keep hearing Your
10
Honor probably won't read everything, and I keep
11
thinking to myself, I really hope Your Honor does
12
because if you read -- the reason we have so many
13
incident reports is because we want trainers to report
14
any and all anomalous behavior.
15
And, if you take the opportunity to read the
16
incident reports, you will see a dramatic decrease in
17
the number of incidents, you will see how many times our
18
training principles, our call-back procedures, our
19
redirections are successful, and you will also see
20
weaved in there some things that we said, "Hey, we
21
should write this down."
22
And I think a couple of people have spoken to
23
anything that we presumed was aggression, we want to
24
write it down, we want to learn from it, so when we read
25
it, it just reinforces and emphasizes how very capable
CARLIN ASSOCIATES
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1
2
3
4
5
6
we have become at our craft.

Q.
And, certainly, from that book of incidents,
those all didn't result in injuries, did they?

A.
Oh, no.
There's very, very few that resulted
in injuries.
Q.
And, at Sea World of Florida, in fact, as the
curator, you have reviewed the incidents that have
occurred since 2006, correct?
A.
Yes.
10
Q.
And, in that review, what's your opinion then
11
about incidents at Sea World of Florida prior to
12
February 24th?
13
A.
14
We have not had an incident at Sea World of
Florida since 2006.
15
Q.
What about 2006 is significant to you?
16
A.
There was a significant incident in the
17
industry.
18
reviewed the incident that happened, and we made some
19
changes, a lot of changes around some protocols.
20
was significant; 2006 was significant.
21
22
Q.
It happened at Sea World of California.
We
So, it
And, you've heard the testimony about some
changes that are made after 2006.
23
In particular, you heard testimony about a
24
swim test.
What's the significance of having trainers
25
participate in swim tests more frequently as it would
CARLIN ASSOCIATES
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1462
relate to safety?
A.
Well, I have talked previously about the
people that interact with our killer whales.
athletes, they're capable athletes.
they can swim, they can lift buckets.
us that we know that they are maintaining that top
athletic ability while they're interacting with the
killer whales.
They're
They can balance,

It's important to
In order to be sure that they were
10
maintaining, we asked them to complete the swim test
11
that Jenny described.
12
the swim test which is the underwater swim in which we
13
make sure that the trainers can hold their breath while
14
working underwater.
15
16
Q.
She did leave out a portion of
And, if you could describe what is that
underwater portion of the swim test?
17
A.
It's the same distance.
It's from one side
18
of the pool to the other, the same distance.
19
left it out.
20
test.
21
pool to the other and back.
22
hold your breath while swimming while working from one
23
side of the tool to the other.
24
25
She just
It's one of the components of the swim
She talked about you swim from one side of the
Q.
You also have to be able to
And, you also heard about the changes to the
trot line procedures, the scuba koozies.
CARLIN ASSOCIATES
(216) 226-8157
What is the
1463
significance of those to you?
A.
As the curator, as the director of animal
training, at the front of my mind is the safety of my
trainers.
improve our response in the unlikely event that we need
to respond and the rehearsal of those practices I will
implement.
8
9
Anything we can do around protocol that will
The trot line is not something that you can

do overnight, you have to learn how to do it, and you
10
practice it.
11
in that were enhancements.
12
enhancement, the rolling mats.
13
of those things.
14
rehearsal is important to me because my trainers' safety
15
is important to me.
16
17
Q.
There were so many other things that came

The cameras were a great
You've heard about all
They're important to me and the
And, why are those cameras a useful tool from
a safety perspective?
18
A.
The cameras really provide us with another
19
view.
We had a view before.
20
could enhance our view, we could understand more about
21
what was going on in those in between the time when we
22
sent an animal from the back to the front.
23
them now go through the canal.
24
the surface of the water, we can watch how that animal
25
is interacting with a trainer on the run.
CARLIN ASSOCIATES
We learned in 2006 that we
We can watch
When an animal is below
(216) 226-8157
1464
We know what these things look like.
As
people who are in the water with the animals, we know
how long it should take, and so these give us an
opportunity.
help.
They're another way to help.
6
7
We addressed the cameras and how they
Can I talk about the incident that we talked

about?
Q.
Are you talking about the Ken Peters and
Kasatka?
10
A.
Yes.
11
Q.
Yes.
12
A.
Well, there was an incident where we talked a
13
lot about whether or not the cameras contributed or
14
couldn't contribute.
15
that trainer, and that was one of those excruciating
16
times for me, sitting there listening to it because the
17
cameras had absolutely nothing to do with whether or not
18
that animal trainer made the right response, whether she
19
recognized the precursor and took a step back.
20
experience and the way she was trained to recognize
21
precursors, the way she was trained to respond to
22
precursors is why there was no contact in that incident.
23
Q.
Adding the cameras didn't help
Her
And, are you talking about specifically -- I
24
think Mr. Peters testified about an incident involving
25
Ms. Glazebrook.
Is that the incident you're referring
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1
2
to?
A.
Yes, and there was a lot of conversation
around the fact that the curators at the time commented
that the cameras helped us assess what was going on.
And, it was the new equipment, so it was mentioned by
everybody because it was the new equipment.
What Kevin was having a hard time with is
that really isn't what contributed to that event not
going wrong.
It had nothing to do with it.
What
10
contributed was the animal trainer's experience, her
11
ability to recognize the precursor, her communication
12
with her spotter, her stepping back.
13
her in that situation.
14
15
Q.
That's what helped
And, in what incident report, did you see
whether there was ever contact made with the trainer?
16
A.
No, the whale never made contact.
17
Q.
And, you have heard some testimony today
18
about the incident involving Kristin McMahan-Van Oss in
19
Ohio, and the sweatshirt being grabbed.
20
21
22
From your standpoint as a curator, what

significance did that incident report have for you?
A.
Well, the behavioral significance is that the
23
call-back worked, and there was a very, very minor
24
injury.
25
That's the behavioral significance.

As a director, the significance is the change
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in protocol that happened after.
made sure that all the trainers wore break-away
whistles.
trainers only interacted with killer whales with wet
suits on, and that's not the only example of protocol
changes around incident reports.
Q.
It was after that we
And, it was after that that we made sure the
There are a lot.
And, there have been lots of changes over the
course of history since you have worked at Sea World;
isn't that right?
10
A.
That's right.
11
Q.
And, if you could explain to the Judge just
12
some of the highlights of some of those changes that
13
have occurred with regard to how you interact with
14
killer whales?
15
A.
Sure.
I started my career at Sea World with
16
killer whales the year before an incident in 1987.
17
incident was significant, and it brought around a lot of
18
changes at Sea World at San Diego.
19
reaction to that incident Companywide.
20
review of all practices.
21
reports were born, which I've talked about.
22
a lot of other changes in protocol.
23
basically.
24
25
That
And, there was

We did a full
From that review, the incident

But, then,
We had rules
We created SOP's, we created manuals, we

created -- there had to be a certain level of experience
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in the area before anyone could interact with a killer
whale.
before you could interact with a killer whale.
trainers were given assignments, we talked about
behavior.
went through formal training.
You had to have a certain level of experience

The
Articulating behavior became a priority.
We
Everything that Jenny was describing today
wasn't there prior to 1987.
of change.
So, '87 created a whole lot
We had an entire coaching and mentoring
10
program.
11
where we now had formal training of our trainers.
12
was preplanning of every single interaction, of every
13
single day, of every single month, animals had
14
development plans, people had development plans.
15
shows and our educational presentations all had a plan
16
around them.
17
Jenny described that this morning as well
And, those things were enforced.
There
Our
We were
18
managed much more strictly.
19
of management, there was a lot of feedback, there were
20
logs that trainers kept, there were career ladders
21
established that you had to meet certain requirements.
22
There was a certain level
There was a whole committee, called the BRC,
23
which is the Behavior Review Committee that was
24
established in all of the parks.
25
animal training would meet and talk about incidents over
CARLIN ASSOCIATES
So, the curators at
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the year.
they would gather them and meet, and they would come
back.
Any changes they wanted to make in protocols,
We saw from this assessment and all of these
protocols a dramatic decrease in incidents.
One of the
biggest changes was the philosophy of an animal trainer
being empowered.
you are empowered to not get into the water, you have an
open-door policy.
You're empowered to make a decision,
If you have any questions around the
10
safety and well being of an animal or the safety and
11
well being of a trainer, come talk to your management
12
team.
13
career.
And all of these things were established over my
14
And then in 2006 after the Ken Peters
15
incident, what we really were looking at at that point
16
was in the unlikely event of a situation like Ken
17
Peters, how can we respond faster?
18
most efficient?
19
20
Q.
How can you be the
And what will equip us to do that?
Now, turning to Tilikum and his coming from
Sea Land, were you ever at the Sea Land Park?
21
A.
I was.
22
Q.
And, if you could describe for the Judge what
23
was different about Sea Land and how they interact with
24
their killer whales from how Sea World of Florida
25
interacts with killer whales?
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A.
Sure.
I went to Sea Land on assignment from
Sea World.
when I went to Sea Land, Heida, Nuka and one calf were
still at the facility.
Tilikum arrived at Sea World of Florida and
They were going to be transferred into Sea
World's care, and I was there as Sea World personnel to
have eyes on the whale.
8
9
JUDGE WELSCH:
So this is approximately 1991 or
`92, `93?
10
THE WITNESS:
Let me get my head around this.
11
JUDGE WELSCH:
I think the record shows that
12
13
Tilikum came to Sea World in '91.

THE WITNESS:
Right, I had recently gotten
14
married in '91, and I went like four months later.
15
I think it was, yes, early `92 or late '91.
16
So,
So, I wasn't really prepared for what I would see
17
when I arrived.
These were three killer whales that
18
were living in a facility that was built on a barge
19
basically.
20
to work in the morning and I was walking down a ramp and
21
as the tide changed.
It changed with the tide.
So, I walked in
22
The whales were in good health, the calf was
23
performing the way a calf of that age should, doing the
24
all the behaviors that a calf of that age should.
25
What I was most surprised about was the trainer's
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experience, the facilities recordkeeping, the food
preparation room.
shock to one who had been raised at Sea World.
All of these things were quite a
The trainers did not plan the killer whales' day,
they did not keep a record of any kind of interactions
with the killer whales.
that I witnessed had absolutely no plan around it.
interactions after that, I developed a plan for, and
they were thirsty for information.
Well, the first interaction

The
The trainers who
10
were interacting with the whales wanted to learn about
11
behavior.
12
13
14
Q.
It was not Sea World.

Did those trainers have training regimens of
any kind to learn how to work with killer whales?

A.
No.
I was approached by every trainer the
15
same way which was, "Can you teach me something about
16
behavior?"
17
mentorship program, they had to rescue procedures, they
18
had no access to behavior, I mean, they had no access
19
knowledge.
20
21
22
Q.
They had no reading assignments, they had no
How about the facility itself?
What did that
look like as compared to Sea World?

A.
Well, it was completely different.
It was a
23
natural ocean facility.
So, it was very, very murky.
24
The water was really, really cold.
25
a net, and the trainers were responsible for every day
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It was a net within
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diving between the two nets, making sure that the nets
were intact.
And, it was kind of a bowl-shaped net.
The trainers worked with the killer whales,
they also had a little sea lion presentation on the same
barge.
aquarium area.
was about -- the whole facility was maybe four times the
size of this room.
9
10
11
There was a little gift shop, and an underwater
Q.
It was small.
I mean, the whole thing
And, in terms of where the trainers would
walk, was that on a steady, solid surface?

A.
No.
There was a carpeted area around the top
12
of the pool.
13
carpeted, and then there were parts that were like
14
almost like linoleum looking.
15
surface was, and it was fairly narrow where they walked.
16
17
18
Q.
There were parts of the pool that were
I don't know what the
When you say fairly narrow, can you describe
how wide that might have been?

A.
Two feet wide?
A two feet, two and a half feet.
There was
19
an area that they called their slide-out area as well
20
that was deeper than that.
21
and a half feet on one side.
22
little bit wider, but they did walk around the pool.
23
24
25
Q.
I'm going to say it was two

The other side was a
So, the areas where they would walk, would it
move because it was on the ocean?

A.
There were times when it moved, yes.
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Q.
So, would it be like walking on --
A.
It's not like walking on concrete.
It's like
walking on a boat, but not like a dingy.
to keep your balance all the time.
day when I went home, you know, I had that feeling that
you're still moving.
Q.
You don't have
At the end of the
With regard to any kind of shows or
performance that they did with the killer whales, how
were those different than what Sea World does or did at
10
11
the time?
A.
Well, there wasn't any preplanning,
12
certainly, and it wasn't any kind of a production.
13
got on the microphone and said -- well, there was no set
14
schedule.
15
"Hey, everybody, come on around.
16
killer whale show," and there was a railing about five
17
feet back from the pool's edge on one side, and then up
18
the other side that the crowd would kind of gather
19
around and stand around.
20
or ten-minute presentation, some of it educational where
21
they would talk about killer whales, and then the
22
animals would jump a little bit and that was it.
23
24
25
Q.
They got on the microphone and kind of said,

We're going to do the
And, they would do and eight-
So, would you say it was similar to a Sea
World?
A.
They
It was not at all similar to a Sea World
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show.
Q.
And, with regard to Tilikum, you heard some
testimony from Ms. Mairot about the desense work that
was done with Tilikum.
5
6
What is your experience with the desense work

that was done with Tilikum?
A.
My experience was that earlier as a trainer
and later as a director is that I thought it was
important.
We did it in the hope that we could get some
10
reinforcement history behind Tilikum seeing somebody in
11
the water.
12
response to someone being in the water with him.
13
We knew that Tilikum had a predictable
In two trials, he had had two trials in his
14
entire life, and both of those didn't have a good
15
response.
16
history to give a trainer some chance of redirecting
17
him.
18
19
20
Q.
So, we were hoping to condition to have some
And, that wasn't done in the hope of turning
Tilikum into a water work animal one day?

A.
Absolutely not.
We never had the intention
21
of progressing even to water -- I mean, I think we
22
pretty much had gone as far as we wanted to go.
23
never planned on going into water over our head, we
24
never planned on taking him out of the med pool where we
25
had access to the false bottom floor.
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We
1474
We just were hoping to get some reinforcement
history behind that behavior; moving away or performing
the behavior with somebody in the water.
Q.
What was the purpose of doing that?
A.
The purpose of doing that was in the highly
unlikely event that around all of our coaching, around
all of our talking, around all of our teaching people
how to walk on different surfaces, somebody ended up in
the water with him.
10
11
Q.
And, was there a safety reason behind that?
Was there a safety reason behind desensing?
12
A.
Oh, absolutely, yes.
That's why we did it.
13
And, we had plenty of ways to stimulate Tilikum.
14
it contributed to his stimulation, but there are things
15
that are not worth the risk; that we weren't going to
16
move on to taking the risk of taking him out of that
17
pool.
18
Q.
It was
And, after Loro Parque occurred, there was an
19
incident report circulated, and there was a video.
20
viewed the video?
You
21
A.
Yes, I did.
22
Q.
And, did you make any comment on that Loro
23
Parque incident report?
24
A.
Yes, I did.
25
Q.
And, how is it that those comments were
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created?
other people help you with the concept behind those?
A.
Were those all of your comments alone, or did
Those are my words.
That's my word-smithing.
I had my initial assessment.
read the report, I had my initial assessment.
input from all the assistant curators, and supervisors
weigh that input and decide what to put on the final
report.
Q.
of the incident.
11
at Loro Parque?
A.
I get
And, Ms. Mairot testified about her opinion
10
12
Having seen the video, and
What is your opinion of the incident
I wrote my comments and my opinion is in the
13
comments.
14
I don't use the same language that she does.
15
read the report, you will see a reference that animal
16
had a history of not responding well going to an area
17
that didn't have -- where we believed the primary
18
reinforcement was exhausted.
19
I have the same assessment that Jenny does.

When you
It's important to note that that in and of
20
itself is a red flag.
If you have an animal that you
21
have been that predictable with, and you haven't
22
provided a variety of reinforcement in all areas and
23
used secondaries and primary reinforcement
24
interchangeably and you have identified that this animal
25
is reluctant to go to an area where he knows the primary
CARLIN ASSOCIATES
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supply has been exhausted, that you shouldn't put him in
that situation until you have gone, you have backtracked
and reconditioned that situation.
that's a comment on the form, knowing his previous
history, we probably should have been more aware.
So, that's one.
And
Brian made in my opinion the best decisions
he was capable of making at the time.
Incident reports
are difficult to write, they are reviewed, they are --
it's hard.
But, if Brian was in the room and we had
10
conversation around it, he made decisions as the person
11
spotting the sessions that I would not have made, that
12
my team here would not have made.
13
report that we could scull back, and that's in a couple
14
of reports that we've reviewed here; a couple of
15
incident reports.
16
17
18
It's written in the
JUDGE WELSCH:
Sculled back?
What does that
THE WITNESS:
When Keto had come to stage and
mean?
19
he was still in a bit of a heightened state which, by
20
the way, he responded in a heightened state to stage.
21
know that's been brought up a couple of times, but he
22
did, he responded.
23
came over to stage.
He was in a heightened state when he
24
At that point, Alexis had already communicated to
25
Brian, "I'm nervous, I don't like this," and instead of
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saying, "Just relax, everything is fine, he's here.
me assess him, and as I'm assessing him, progress
backwards, progress away."
Let
We call that sculling, and I don't really know if
that's -- I've grown up with that term, and I don't know
if I'm defining it right, honestly.
remaining calm, and you're slowly progressing in a
certain direction.
reports that is in evidence that we just reviewed
It's just you're
It's referenced in one of the
10
yesterday, where somebody said, "scull to the glass,"
11
and it was another instance where Orkid and another
12
whale both responded to the call-back, they were correct
13
and the two trainers sculled to the glass and exited the
14
pool.
15
I would have made that decision differently, and
16
that's written in the report.
17
report is there were several what I would call red
18
flags, there were several things that made understanding
19
those behavioral events fairly easy.
20
So, my reaction to the
I understood what happened.
I also understood
21
that the level of experience of the trainers at that
22
park did not mirror the level of expertise of the
23
trainers in my park.
24
BY MS. GUNNIN:
25
Q.
And, how is it that you were able to make the
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decision to get back in the water with the killer whales
after that December 24, 2009, incident?
A.
Well, I, of course, reviewed it with John
Kerivan and Terry Prather before talking to my team
about it, as the salary management team at Shamu, how
they felt about the incident and made sure that they
talked to each and every trainer who was going to be
interacting with the whales to make sure that they were
comfortable and had a good understanding of the
10
incident.
11
I believe in our in-water interaction, I
12
believe in the safety around our in-water interaction.
13
We had not had an incident at Sea World of Florida since
14
2006 and it was the right thing to do.
15
the water was the right thing to do.
16
thing to do.
17
Q.
Getting back in
It was the normal
And, the incident on February 24th, was that
18
a similar type of incident to what happened at Loro
19
Parque?
20
A.
Absolutely not.
21
Q.
How are they different?
22
A.
They're completely different in that there
23
was not a behavioral -- there were not a series of
24
behavioral events that went poorly that led to an act of
25
aggression.
There was not a series of events that went
CARLIN ASSOCIATES
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poorly.
in-water interaction.
3
4
5
Q.
This was not an animal that was conditioned on

They couldn't be more different.
In going back to the incident reports, who
were those reports written for?

A.
They certainly are not written for lawyers or
a courtroom.
They were written for the trainers.
were written for the people that we are developing, and
they're written in the name of enhancing our craft, they
are written because we want to take each and every
10
opportunity to progress.
11
whales, they were written for our improvement.
12
Q.
They
They're written for the
Back on February 24, 2010, was it your belief
13
that you as a curator for Sea World of Florida as a
14
corporation were acting with plain indifference to the
15
safety of killer whale trainers?
16
A.
Absolutely not.
17
Q.
Do you think that Sea World of Florida or you
18
as a curator was acting with disregard to the safety of
19
the killer whale trainers?
20
A.
No.
21
Q.
Why do you think that?
22
A.
I think I know that because of my 25-year
23
career and watching the changes and watching the
24
protocols and watching the science grow.
25
protocols, we developed SOP's, we added levels of
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We established
1480
management, we added oversight, spotters, emergency
protocols, training on how to recognize -- you know,
around this hearing, I would say, we trained -- I mean,
we train a lot.
animals.
You've heard about how we train the
But, I think what you most want to hear is we
train them to understand situations that might lead to
an animal to be in a heightened state.
end, understand the situations that might contribute to
So in the front
10
that, understand a new member of the pod, understand a
11
mom and a calf, understand hormonal flux, understand if
12
you've seen interactions with two animals before.
13
understand the situations around these heightened
14
states, understand how to recognize a heightened state.
15
So,
All those precursors, we talk to you about
16
them, we teach you about them, we show them to you.
17
Understand how to react to those precursors should you
18
see them, and then in the very, very unlikely event that
19
you end up in a situation with the killer whale who is
20
in heightened state, how to respond in that situation,
21
and I think Petie showed you that on the video.
22
Although the protocols of the training made
23
me able to sleep at night as their director is why I
24
know that I did not disregard the safety of my animal
25
trainers.
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MS. GUNNIN:
JUDGE WELSCH:
4
5
6
7
8
9
10
11
12
tomorrow morning?
Thank you, Ms. Flaherty Clark.
Mr. Black, do you want to start
We have about ten minutes.
MR. BLACK:
To be more efficient, I have more
than ten minutes.

JUDGE WELSCH:
Okay.
We will stand adjourned
until tomorrow morning at 9:00.

Thank you.
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BY:__________________________
Norma Carlin
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----------------------------------- x
)
)
SECRETARY OF LABOR,
)
)
Complainant,
)
)
-vs)
)
)
)
Respondent,
)
)
)
------------------------------------x
12
VOLUME VIII.
13
14
15
16
17
18
OSHRC DOCKET
NO. 10-1705
Before:
Judge Ken S. Welsch
Date:
Thursday, November 17, 2011

9:00 a.m.
Place:

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APPEARANCES:
JOHN BLACK, ESQ.
Suite 7T10
(404) 302-5435
Suite 2400
(404) 525-8622
GEORGE COE, ESQ.
Suite 840
407-425-7118
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CARLIN ASSOCIATES
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I N D E X
WITNESSES
Name
Clark
Andrews
Direct
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1680
Redirect
1587
1778
Voir Dire
1625/1680
---o0o---
6
7
Cross
EXHIBITS
Complainant's
Description
Marked
Admitted
1624
1625
(None)
Respondent's
R-6
Andrews Curriculum Vitae
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CARLIN ASSOCIATES
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Morning Session
9:00 a.m.
JUDGE WELSCH:
8
9
10
Ms. Flaherty Clark, I remind you you're still

under oath.
When we adjourned, had you finished with
your questions?
11
MS. GUNNIN:
12
JUDGE WELSCH:
13
you may proceed.
14
MR. BLACK:
I did, yes, Your Honor.

For the Secretary, Mr. Black,
15
---o0o---
16
17
18
continued her testimony as follows:
19
---o0o---
20
CROSS-EXAMINATION
21
BY MR. BLACK:
22
Q.
Good morning, Ms. Clark.
23
A.
Good morning.
24
Q.
How are you this morning?
25
A.
Well.
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1
2
Q.
I just want to follow up and ask some
questions related to your testimony yesterday.
A.
Okay.
Q.
And, you indicated that you're employed by
A.
Yes, I am.
Q.
And that's an LLC or a corporation?
A.
It's an LLC.
Sea World of Florida is
connected to SEA Corporation.
10
Q.
It's a subsidiary of SEA Corporation?
11
A.
As I understand it, yes.
12
Q.
And, Sea World of California is also an LLC
13
14
as a subsidy, rather, of SEA Corporation?

A.
Actually, that's not how I understand it.
15
might not be the best person to ask.
16
World of California is a separate entity, but we are
17
connected corporately.
18
Q.
I believe Sea
You're connected corporately through an over
19
arching parent corporation that gives direction to and
20
controls both Florida and California?
21
A.
22
aspects.
23
Department works, businesswise, giving directions
24
zoologically, I can map that out for you easily.
25
Q.
Yes, I don't really know the business

I can really tell you how the Zoological
Well, both of these entities report
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zoologically, but the reporting runs up to the corporate
entity SEA and Mr. Tompkins?
A.
Actually, no, that's not how it works.
Q.
Okay.
A.
And, certainly, not how it worked at the time
around this incident that we're talking about.
way it works is that -- do you want me to stop talking?
8
9
10
Q.
Yes.
So, the
The corporate decision to remain out of
the water, that was made not by the individual parks but
was made by another entity higher up?
11
A.
That decision was not made by a zoological
12
employee, no.
13
was made by Jim Atchison.
It was not made by Chuck Tompkins.
It
14
Q.
Who works for corporate above Sea World of
15
Florida?
16
A.
Yes, sir.
17
Q.
And, we have heard a lot of testimony about
18
the incident reports.
The parks all share the incident
19
reports with one another, right?
20
A.
Yes.
21
Q.
And, they share all the safety information
22
23
pertaining to the incident reports?

A.
We communicate and each put an assessment of
24
the incident which ends up on a compiled document, so
25
you do communicate, and if new direction comes from, new
CARLIN ASSOCIATES
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protocols or a change in the way we present a behavior
or a change in the way we might ask for a behavior as a
result of one of those incident reports and all three
parks agree that this is something they would like to
institute in their parks, then we do adjustment
protocols, but there have been situations where we would
adjust the protocol in just one part.
8
9
Q.
I was just really asking about
the sharing of the safety information.
10
11
I understand.
The incident reports, you said that the

purpose is to learn?
12
A.
That's one of our purposes, absolutely, yes.
13
Q.
Because what happens at one park, it teaches
14
the other parks things about whale behavior among other
15
things?
16
17
A.
behavior.
18
19
It gives us access to events around whale
Q.
So, is that a "yes" that it teaches other
parks?
20
A.
It has the potential to -- no, it gives us
21
access to information.
22
teaches.
23
Absolutely, yes.
24
25
Q.
way.
I don't know about saying it
Can we learn from more information?
I'm sorry, you stated it much better, by the
The report doesn't do the teaching.
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You have to
1490
read it to learn it, right?
A.
Right, assess, read it, evaluate it.
Q.
And, the reports contain information about
how to handle certain situations.
they say that is what happened in this situation, and
this is what we say one ought to do in the future as a
corrective step?
8
9
A.
language.
That is, let's say,
There are reports that have that kind of

Not all the reports would have that.
10
Q.
But many of them do?
11
A.
Can you go back to what you asked?
12
explain what you asked me again.
13
14
Just
Q.
In the incident reports, there's a section
that asks for what corrective action is taken, right?
15
A.
Right, and this comes from solely the
16
originating park.
So, those comments are from the
17
originating park supervisor, what corrective action has
18
been taken, or what is your plan around this event?
19
What is the originating park's comments?
20
plan?
21
departments and in other parks, and we commented on the
22
event and on the corrective action.
What is the
And then it comes to the other curators and other
23
(Short Interruption)
24
JUDGE WELSCH:
25
Mr. Black?
Back on the record.
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BY MR. BLACK:
Q.
Ms. Clark, the incident reports do contain a
section on corrective action taken, what corrective
steps have been taken at the park that wrote up the
report, right?
A.
The originating park comments have a section
that say what that plan is basically.
means.
That's what it
It's a behavioral plan.
Q.
And, in commenting on the incident, the other
10
park curators are looking at everything in the report,
11
including those corrective steps taken, and then giving
12
any comment they might have related to any of that stuff
13
in the report?
14
A.
15
those reports.
16
Q.
I can tell you what I do when I look at the
Can you tell me what has been done in
17
incident reports that you have up until today?
18
general way.
19
A.
In a
I'm not trying to --
In a general way, I would be assuming if I --
20
you would have to ask each person who wrote them.
21
tell you what I do when I review.
22
Q.
Maybe I'll asked it a different way.
I can
Before
23
they write up those comments, they receive the full copy
24
of the originating park's information?
25
A.
Yes.
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Q.
Including the proposed corrective steps?
A.
That should be there, yes.
Q.
Are there times that you recall where there's
ever been a revision to parts of the report in response
to another park curator's comments?
6
7
8
9
10
11
A.
There have been reports that have been
revised from the original park.

Q.
The parts that have revised, what parts do
you recall that had been revised after receiving

comments from other parks?
A.
I would have to review them, but I've seen
12
revisions.
13
happened, maybe something that at the onset before there
14
was a lot of discussion around it, it wasn't considered
15
to be something that you would put in a report and then
16
later it would get on it, either a trainer's condition
17
or a whale's condition.
18
Q.
Maybe a trainer remembered something that
You don't a have specific recollection of any
19
particular report in which that happened; just sort of a
20
generalized recollection of it?
21
A.
I can't give you an exact date, but I know it
22
has happened.
23
Q.
Can you give me an incident?
24
A.
No.
25
Q.
So, is it fair to say it hasn't happened very
CARLIN ASSOCIATES
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frequently that you recall?
A.
It doesn't happen frequently.
Q.
And, the usefulness of the reports as a
learning tool is not just limited to what the one whale
involved in the incident did in that incident, right?
That's a broader application potentially?
7
8
9
A.
It has the potential to have a broader
application.
Q.
Otherwise, if it were limited to that one
10
whale, then there wouldn't be any need for anybody other
11
than that whale's team members to read and review that
12
report, right?
13
people working with that one whale to read the report?
14
A.
There would no usefulness other than
Really, I want to make something very clear.
15
You're talking about one whale.
16
talking about one situation rather than one whale
17
because this is an event that happens with a whale.
18
Really, you should be
There are, as I was explaining yesterday,
19
hundreds of factors involved around a situation, and can
20
we learn from a report around that situation and apply
21
our knowledge that we gain to another very similar
22
situation with killer whales?
23
Q.
Yes.
And, obviously, you have made this
24
distinction that situations have a lot of factors and a
25
lot of things going on in the environment, correct?
CARLIN ASSOCIATES
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1
2
3
A.
Sometimes they do.
Sometimes they're very
simple.
Q.
But, the goal from studying the situation is
to be able to generalize from that situation; that is,
not to look for exactly the same situation in the future
where it's 82 degrees on a Tuesday and every
environmental factor is exactly the same.
quizzical look.
9
10
11
A.
You've got a
I certainly don't consider the day of the
week, no.
Q.
In fact, you don't consider the reports
12
limited to an exact situation that happened exactly as
13
it occurred in the report, right?
14
A.
I do not over generalize, and I do not under
15
generalize, and I don't teach my team to do either of
16
those things.
17
Q.
And, in generalizing -- so, there's some
18
level of generalizing that you do if you don't over
19
generalize but you don't under generalize.
20
A.
There is some level of -- yes.
21
Q.
And, a trainer using a report or reading a
22
23
report also would be expected to do some generalizing?

A.
I'm having a hard time with your definition
24
of the word, "generalizing."
25
behavioral sense.
I'm using it in a
Yes, we would expect them to take
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this knowledge, process it, have it available to
themselves in other situations that are very similar to
the one that they've learned about.
4
5
Q.
For example, you could learn about certain
behavioral patterns of killer whales, generally?
A.
Certainly.
Q.
And, it's a fair statement to say that the
incidents that occur, they show what killer whales are
capable of doing?
10
11
12
A.
The incidents that occur do show what killer
whales are capable of doing.

Q.
And, not just showing what is physically
13
possible by one killer whale, but what another killer
14
whale is physically capable of doing?
15
A.
I'm not going to agree with you on that.
16
I've heard this kind of generalization when it comes to
17
human beings as well.
18
have the potential to be rapists.
19
that every human being has the potential to be a
20
murderer.
21
Q.
I could say to you that all men

I can't say to you
So, I'm not going to agree with you on that.

Okay, and how would you limit it forgetting
22
men and rapists, how would you limit it as to killer
23
whales?
24
25
A.
I would look at the environment that the
killer whale was in at the time, I would look at the
CARLIN ASSOCIATES
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experience of the trainer, I would look at the social
group, I would look at the facility, I would look at the
weather, I would look at the trainer's experience, I
would look at the spotter's experience, and I would look
at a lot of other things.
Q.
Maybe my question wasn't well formed then,
because I'm not talking about whether behaviorally, you
would expect another killer whale to engage in that same
behavior, but I was talking about the physical movement
10
that the killer whale made.
11
that a killer whale can grab something -- one killer
12
whale does that -- you can generalize that to other
13
killer whales?
14
A.
Do killer whales have the potential to grab?
Q.
And, if something like that were to be in an
15
16
For example, if you learn
Yes.
17
incident report, you could take that knowledge that you
18
learn there, and if you didn't already know it -- it
19
might have been obvious, right?
20
A.
My team knows from day one that killer whales
21
can grab things, yes.
22
to teach that.
23
Q.
24
25
I don't need an incident report
What do they know about the killer whales
being able to grab things on day one?

A.
They know that a killer whale has a mouth and
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that a killer whale is capable of opening that mouth and
closing that mouth.
Q.
And, they know that killer whales have
grabbed things in situations where that was not a
desirable behavior?
A.
Yes.
Q.
Now, I want to change gears here slightly.
All the parks -- Florida, California, Texas -- they all
participate in something called the BRC process?
10
A.
Yes.
11
Q.
And, could you tell me briefly what is the
12
BRC?
First of all, what does BRC stand for?
13
A.
Behavioral Review Committee.
14
Q.
What is the function or purpose of Behavioral
15
Review Committee?
16
A.
The Behaviioral Review Committee was
17
established soon after an incident that happened in
18
1987.
19
minds in the animal training department discuss and
20
collaborate.
21
And, basically, it is having the most experienced
The things that are talked about are whether
22
or not a new behavior is something that we would like to
23
train, whether or not a new behavior is something we
24
would like to present, and how each of the behaviors
25
that we currently are performing should be performed and
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1
2
with what experience level of trainers.

Q.
And, the most experienced minds on this BRC
are from each of the parks, right; from Florida,
California and Texas?
5
6
7
8
A.
On BRC -- yes, there's a representative from
each of the parks.

Q.
And, the BRC is something that's described
and talked about in the standard operating procedures?
A.
Yes.
10
Q.
So that Exhibit C-1 --
11
MR. BLACK:
12
JUDGE WELSCH:
13
BY MR. BLACK:
14
Q.
15

Yes.
Exhibit C-1 talks about the BRC.
And, if I
could have you turn to page Sea World 1085, please.
16
A.
(Witness complies).
17
Q.
Are you at that page?
18
A.
Yes, I am.
19
Q.
And, you see toward the bottom or the lower
20
half of that page it lists required approval signatures.
21
Do you see that?
22
A.
Yes.
23
Q.
And, it calls for required signature from the
24
curator of animal training at each of the Sea World
25
Parks with Shamu Stadiums, right?
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A.
Yes.
Q.
And, it calls for signatures of each the VP
Zoological Operations at each the Sea World Parks at the
Shamu stadiums?
A.
Yes.
Q.
And, it calls for the corporate VP of
Zoological Operations to sign off on it, right?
A.
Yes.
Q.
And, this is from the 2010 standard operating
10
procedures in place prior to February 24, 2010, right?
11
A.
Yes.
12
Q.
So, this was in effect at the time of Ms.
13
Brancheau's death?
14
A.
Yes.
15
Q.
And, the Corporate VP of Zoological
16
Operations, that was Mr. Tompkins at that time?
17
A.
No, it was not.
18
Q.
Who was that on February 24th?
19
A.
That would be Brad Andrews.
20
Q.
So, does Mr. Tompkins report to Mr. Andrews?
21
A.
Mr. Tompkins is not in the line of
22
23
24
25
communication on these documents.

Q.
So, Brad Andrews was the Corporate VP of
Zoological Operations for what corporation?

A.
You're asking me a business thing again.
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I'm
1500
really sorry, but I know on February 24, 2010, this
document would have been signed from my park by myself,
John Kerivan, and then Brad Andrews is the person who
would have signed the bottom line.
5
6
Q.
Brad Andrews is with the corporate that owns
A.
Yes.
Q.
Not knowing the exact --
A.
LLC SEA, yes.
10
Q.
So, the BRC has a safety purpose, right?
11
A.
Yes.
12
Q.
And, I'm not now going to ask you questions
13
about this document -- well, maybe I will.
There's
14
something right in the middle of the page that says --
15
this Page 1085 is a template for an application to get
16
approval or behavioral interaction by a trainer or by a
17
park; is that right?
18
A.
Yes.
19
Q.
So, part of that is to include all facts
20
necessary to be considered for approval, right?
I'm
21
reading now from the sentence, including history with
22
similar behaviors through guidelines under which this
23
behavior can be safely performed, right?
24
A.
Yes.
25
Q.
So, the point or one of the purposes of the
CARLIN ASSOCIATES
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BRC is to make sure behaviors for which approval is
sought are done safely?
A.
Yes.
Q.
So all of the parks through the BRC process
have input that have -- well, they have input on the
safety at other parks through the BRC process?
A.
They have input on approving whether or not a
a new behavior that we haven't done before is going to
be performed in the other parks, yes.
10
11
Q.
And, so, for example, the Tilikum behaviors,
those went through the BRC process?
12
A.
No, they did not.
13
Q.
They did not?
14
A.
You have to understand what the BRC is in
15
full, and the behaviors that we perform with Tilikum are
16
not new.
17
history with doing with killer whales.
18
behaviors that we don't have a history with.
19
They are not behaviors that we haven't got a
Q.
This is for new
So, let me ask you something else.
Yesterday
20
afternoon, I think you gave some testimony to Ms. Gunnin
21
about incident reports in which you said incident
22
reports are really important if I'm quoting you
23
correctly.
24
A.
Sure.
25
Q.
I mean, would you say that today incident
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1
2
reports are really important?

A.
I think she asked me how I feel about the
incident reports, and I said that they are really
important to me, yes.
5
6
Q.
And, you said incident reports have been
around since 1987?
A.
Yes.
Q.
And, they were created after an incident
involving John Sillick?
10
A.
Yes.
11
Q.
So, is there a John Sillick incident report?
12
A.
Wow, I've talked about that incident a lot.
13
I'm not sure.
14
that format.
15
over the years.
16
more precise and much more formal.
17
write-up in those early times.
18
write-up than a --
I don't know if there's documentation on

Now, the format has changed a little bit
You can review that.
19
MR. BLACK:
20
JUDGE WELSCH:
21
BY MR. BLACK:
22
Q.
It's gotten much
There might be a
It was more of a

Yes.
I didn't see one in here, so whether it
23
exists, it's certainly not part of the record.
24
suggesting anything.
25
JUDGE WELSCH:
I'm just noting here.

You're looking at C-6?
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I'm not
1503
1
2
MR. BLACK:
Honor.
JUDGE WELSCH:
MR. BLACK:
BY MR. BLACK:
Q.
I'm looking at Exhibit C-6, Your
The incident report?

Yes.
And, you're familiar, Ms. Clark, with these
incident reports generally?
A.
reports.
10
Q.
I'm generally familiar with the incident
And, early on, the incident reports
11
apparently they had a number on them that's written in
12
the upper, right-hand corner?
13
A.
I need to make it really clear that in 1987,
14
I was what would be considered now an associate trainer.
15
My involvement in the process and what little numbers in
16
corners of boxes mean, I'm not the right person to talk
17
to about.
18
Q.
So, you wouldn't be the person to ask why the
19
incident reports begin with Report Number 10 as opposed
20
to Report Number 1?
21
22
23
24
25
A.
I have no idea where this Report Number 10
comes from.
Q.
Do you see here, there are numbers written in
the upper corner?

A.
Are they like a page number?
CARLIN ASSOCIATES
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Q.
Well, no, they're a report number because if
you go far enough on in this report, in this collection
of incident reports furnished to us in this case, you
will find -- and, I'm sorry, I hate to put this in your
face -- you will find that at some point --
6
7
A.
that do not.
8
9
10
There are some that have numbers and some
Q.
You know, at some point they actually put a
box and a log number rather than just sort of this

handwriting in the upper corner.
11
A.
Yes, I am not the person to talk to about
12
that.
You know, at the time of these reports, and you
13
were about halfway through the book here, more than
14
halfway before it changed -- I mean, I'm more than happy
15
to say here there were a lot of incidents in the
16
beginning, and they got to a lot fewer.
17
probably --
I mean, you
18
Q.
No, that's not my question.
19
MR. BLACK:
I would move to strike.
20
JUDGE WELSCH:
Did you finish your response?
21
THE WITNESS:
Yes.
I'm not the person to ask
22
about how these were recorded in 1987.
23
year under my belt.
24
BY MR. BLACK:
25
Q.
In 1987, I had a
And, can you tell the Court what happened to
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Mr. Sillick?
A.
Mr. Sillick was performing a behavior in a
show.
behavior riding on a whale in a show.
sent another whale on an aerial behavior, and the whale
jumped in the path of John, and so Mr. Sillick had an
injury as a result.
8
9
10
11
12
Another trainer sent -- he was performing a
Q.
Another trainer
The whale that got in the path actually
jumped in the air and landed on Mr. Sillick who was on

the back of another whale, right?
A.
Mr. Sillick was in the path of the whale that
was performing the aerial behavior, yes.
13
Q.
So, Mr. Sillick was on one whale?
14
A.
Yes.
15
Q.
And, then another whale did an aerial
16
behavior and apparently came down on Mr. Sillick and the
17
the other whale?
18
A.
Yes.
19
Q.
And, as a result, not only was he injured, he
20
21
22
23
24
25
suffered very significant injuries, right?

A.
I'm not the person to talk to about his
injuries.
Q.
Well, you have seen the video tape of what
happened?
A.
The video tape did not show any injuries.
CARLIN ASSOCIATES
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1
2
3
4
5
6
7
Q.
The videotape did show the whale landing on
top of him, right?

A.
Yes, and then it showed him swimming toward
the stage.
Q.
Now, the Sillick incident was unrelated to
any aggression by the whales, right?

A.
I was not at the Sillick incident, I didn't
review the Sillick incident.
several different assessments of that.
10
11
12
13
JUDGE WELSCH:
There are, I'm sure,
Was this incident here in
Orlando?
THE WITNESS:
No, it was not.
This happened
in Sea World San Diego in 1987.
14
BY MR. BLACK:
15
Q.
And, from looking at the incident from the
16
videotape, it doesn't look like there's a problem of
17
aggression so much as sending one whale on a behavior
18
when another whale is in the path?
19
A.
You cannot tell that from the videotape.
You
20
cannot see if it was aggression or -- the video tape is
21
from 1987, it's grainy, you can't see all of the factors
22
at all.
23
in the back, you can't see how many whales are
24
performing in the front.
25
had a year of experience.
You can't see what whales were in which pools
This happened in 1987, and I
CARLIN ASSOCIATES
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1507
Q.
Yet, you know about the incident and know
that the incident caused Sea World to institute major
changes to its killer whale training program?
A.
The biggest protocol change associated with
the incident itself is that we did pre and post show
discussions, we talked about all of our sessions, and we
planned our interactions.
8
9
Q.
And, changes were made in evaluating killer
whale aggression as a result of the Sillick incident?
10
A.
Evaluating killer whale aggression?
11
Q.
Or trying to predict it or see it when it's
12
13
14
15
where it causes incident or injury?

A.
I would say that changes were mostly around
communication and teaching and assessing.

Q.
Yesterday, when you were asked about it, you
16
indicated that the reaction to the incident caused a
17
companywide full review; is it fair to say?
18
A.
That's a fair statement.
19
Q.
I'm sorry, I didn't mean to catch you with
20
your mouth full.
21
A.
I'm in mid-sip, yes.
22
Q.
And, as a result of it, you created incident
23
reports; is that right?
24
A.
Yes.
25
Q.
And, you said companywide review.
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These were
1508
changes that are made at all of the Sea World Parks as a
result of this incident, right?
A.
Yes.
Q.
And, created various rules that are in the
SOP's and manuals?
A.
The SOP's and manuals were written.
Q.
And instituted trainer level of requirements?
A.
Yes.
Q.
And, a number of other things.
10
The BRC was
established?
11
A.
Yes.
12
Q.
So, companywide these changes were
13
instituted?
14
A.
Yes.
15
Q.
As a result of the incident that occurred in
16
California?
17
A.
Yes.
18
Q.
And, is it fair to say when you say major
19
overhaul that Sea World stepped back, if you will --
20
that's a term I've heard before -- stepped back, and
21
they evaluated everything regarding its killer whale
22
program and how you work with killer whales?
23
A.
I know the results of the evaluation.
24
don't know about the process.
25
inexperienced trainer at the time.
CARLIN ASSOCIATES
I was a very
(216) 226-8157
1509
1
2
Q.
But, you were at Sea World at the time,
right?
A.
I was the Sea World of Ohio at that time.
Q.
And, changes were made at Sea World of Ohio
as well, right; the SOP's, the --
A.
Yes.
Q.
And, during this evaluation, trainers were
actually out of the water for six months.
that, right?
10
A.
11
of the water.
12
Q.
13
14
Yes.
You know
I was one of the trainers that was out
And, the trainers weren't even allowed to
touch a whale during this six-month period, right?

A.
15
That is not right.
That is inaccurate.
We were touching the whales, we were very
16
close to the whales.
17
close to the whales, and we did not have the same
18
protocols at Sea World of Ohio after the incident as
19
they put in at Sea World of San Diego.
20
At Sea World of Ohio, we were very
They put in plexiglas around the pool.
21
did not do that in Ohio.
22
not do that in Ohio.
23
24
25
Q.
They put in barriers.
We
We did
But, in all of the parks, Sea World ceased
water work for six month?

A.
We did get out of the water work to review,
CARLIN ASSOCIATES
(216) 226-8157
1510
yes.
2
3
Q.
And, you said there's videotape of the John
Sillick incident, kind of grainy, right?
A.
Yes.
Q.
And, you said it was during a show, right?
A.
Yes, that happened during a show.
Q.
And the public was present at the show, so
the public was there, right?
A.
Yes.
10
Q.
And, many of these rules that were instituted
11
as part of the companywide review, they had nothing
12
whatsoever to do with the incident with Mr. Sillick;
13
that is, they were just a part of the evaluation of how
14
we, Sea World, works with the whales.
15
these things to make it safer at Sea World Parks.
16
17
A.
Let's do all of
Is
An event happened, a trainer was injured, and
18
we took a step back -- good words -- to review what we
19
did.
20
We found we could improve; we made protocol.

Q.
You found you could improve in lots of areas
21
that maybe weren't the direct cause of the incident with
22
Mr. Sillick, right?
23
A.
I don't know what the direct cause was.
24
Q.
Well, can you tell me how creating rules and
25
SOP's and manuals related to the John Sillick incident?
CARLIN ASSOCIATES
(216) 226-8157
1511
A.
They related to the John Sillick incident;
absolutely, they did, yes.
with very little experience working with whales and that
probably contributed to the overall environment that was
around the incident.
to the incident.
Q.
Because there were trainers
So, SOP's and manuals were related
But, the rules went far beyond just the
specific behavior issues and such in the incident
itself; that is, instituted broad --
10
A.
I really can't say that they did, and the
11
reason I'm saying that is because a lot was discovered
12
about the level of trainers that were working, the lack
13
of planning for the show, the number of animals that
14
were in the pool.
15
things that were discovered all contributed to the
16
incident that happened.
17
Q.
A lot was discovered, and those
So, is it your testimony that all of the
18
changes that were made were just to prevent another John
19
Sillick type accident?
20
A.
They were all made as a reaction to that
21
accident.
22
that we all work with; we all work in.
23
Q.
They were made to improve the environment
They were made to improve the environment,
24
not just to prevent another John Sillick type accident
25
where a whale landed on a trainer and another whale but
CARLIN ASSOCIATES
(216) 226-8157
1512
1
2
to protect trainers sort of generally?

MS. GUNNIN:
Mr.
Black is going over and over the same concept, and we're
talking about an incident that occurred in 1987.
Ms. Clark has testified that there were changes
made and that's a fact.
Black will agree to move on.
Mr. Sillick.
9
10
MR. BLACK:
They made changes after
Changes unrrelated to the
incident; changes broader than the --
11
MS. GUNNIN:
12
other changes as well.
13
MR. BLACK:
14
We'll agree to that fact if Mr.
They made changes related to and
Good.
If we have that
stipulation, I can move on.
15
MS. GUNNIN:
16
BY MR. BLACK:
17
Q.
Agreed.
And, Ms. Clark, you were at Sea World in 1987
18
so you know there was lots of publicity about that
19
incident on the news and the media; lots of negative
20
publicity?
21
22
23
24
25
A.
I didn't pay attention to that.
That was 25
years ago.
Q.
There was lots of publicity much like the
incident here with Ms. Brancheau?

A.
No.
CARLIN ASSOCIATES
(216) 226-8157
1513
Q.
What do you mean, "no"?
A.
I don't think it had the same publicity in
any, way, shape or form.
publicity has changed.
5
6
Q.
We're 25 years later.
I think
But, you agree that the public was present
and saw what happened, right?
A.
Yes.
Q.
And, in the incident with Ms. Brancheau, the
9
10
public was also present during that incident?

MS. GUNNIN:
11
questions about the public and the nature of whether it
12
received a lot of press.
13
OSHA proceeding?
14
press coverage an OSHA case is given?
15
16
17
Where is the relevancy behind how much
JUDGE WELSCH:
answer.
How is that relevant to an
Overruled.
Go ahead, you can
Do you know?
THE WITNESS:
The accident with Ms.
18
Brancheau happened during a session following a Dine
19
With interaction.
20
speculating if I were to tell you.
21
what I've read as far as who was still around, but the
22
guests had been escorted out, and I think one or two
23
were lingering.
24
25
There were -- you know, I would be

I'm taking it from
I can tell you that the incident happened well

after the footage that we've all been exposed to over
CARLIN ASSOCIATES
(216) 226-8157
1514
and over again in the media.
BY MR. BLACK:
Q.
And, when you say the footage, you're talking
about the Connells video that we saw earlier in the
trial, above water video?
A.
Yes.
Q.
You know that that video is widely
circulated?
A.
I've seen it ad nausem, yes.
10
JUDGE WELSCH:
You referred to it as Connell?
11
MR. BLACK:
Connells, C-o-n-n-e-l-l-s.
12
JUDGE WELSCH:
And what exhibit is that?
13
MR. BLACK:
It's Exhibit C-4.
14
JUDGE WELSCH:
And, Connells, who is Connells.
15
MR. BLACK:
They were the park guests who
16
shot the video.
17
JUDGE WELSCH:
18
BY MR. BLACK:
19
Q.
So, the Connells video is even available on U
21
A.
I have no idea.
22
Q.
And, now at least some members of the public
20
Okay, go ahead.
Tube?
23
or some people -- I don't know, you don't know how many
24
-- were present during the incident, right?
25
A.
I do not know that.
CARLIN ASSOCIATES
What I'm telling you is
(216) 226-8157
1515
the video that we saw in this courtroom ends well before
Ms. Brancheau's incident.
Q.
And, this is an incident which I think you
described in response to Ms. Gunnin's question as an act
of aggression by Tilikum?
A.
I have never responded to a question and
called this incident an act of aggression by Tilikum,
and if I did -- no.
JUDGE WELSCH:
Am I to take it, you would not
10
consider what you know of the incident as an act of
11
aggression by Tilikum?
12
THE WITNESS:
I would not define the incident
13
as an act of aggression.
14
BY MR. BLACK:
15
Q.
Now, here, once again, after an incident
16
during the show, Sea World has made big changes to the
17
killer whale protocols?
18
MS. GUNNIN:
Judge, I want to object to the
19
implication that it was during a show.
20
involved who was working the show has testified.
21
22
JUDGE WELSCH:
The trainer
understand the dispute between the parties.
23
MR. BLACK:
24
BY MR. BLACK:
25
Q.
Let me try again, Your Honor.
In response to an incident which you know has
CARLIN ASSOCIATES
(216) 226-8157
1516
received lots of publicity and in which there is a video
of events leading up to right before the incident, Sea
World has made major changes to its killer whale
protocols?
A.
Sea World does not make changes to killer
whale protocol based on whether the public and media has
a reaction.
killer whales for the safety of the animals and for the
safety of our trainers, for the health and well being of
10
11
We make changes in protocols around our
our animals and to provide the best environment.

Q.
And, many of the changes that have been made
12
have no connection to what Tilikum actually did in
13
pulling Ms. Brancheau in the water.
14
with that?
Would you agree
15
A.
Yes.
16
Q.
In fact, the incident happened during what
17
Sea World classfies as dry work, right?
18
A.
Yes.
19
Q.
And, so some of the changes that have been
20
made include no water work with the other whales, the
21
other killer whales who were previously having water
22
work done with them?
23
A.
Look, an event happened at Sea World.
24
tragic, it was startling, it was impactful.
25
my team watched a dear friend leave us.
CARLIN ASSOCIATES
Myself and
We are
(216) 226-8157
It was
1517
reviewing every single thing we do with killer whales as
a result of that incident.
happened at Sea World before.
Sea World trainer that would impact us the way
February 24, 2010, impacted us.
Nothing like this has ever

Nothing has happened to a
As a company, as a team, as a leader, as a
friend, this rocked us to our very core, so we are doing
a complete review, and that's why we are not in the
water right now.
10
11
We are still in very close proximity
to our killer whales.

Q.
I appreciate that.
I have no doubt that the
12
loss of Ms. Brancheau has had a difficult impact on
13
many, many people, including her fellow trainers at Sea
14
World of Florida.
15
So, that's not quite what I was asking about.
16
I was asking the question about whether the changes
17
since the incident include no water work with the other
18
whales?
19
A.
Yes.
20
Q.
And, in fact, yesterday we heard from Ms.
21
Mairot that there have been new restrictions put in
22
place on certain interactions with killer whales from
23
pool's edge, from the edge of the pool.
Right?
24
A.
Yes.
25
Q.
I mean, we heard her talking about lining up
CARLIN ASSOCIATES
(216) 226-8157
1518
for a rubdown, that the whales have to be in a lineup
position, right?
A.
Right.
Q.
And, now, you can't touch on the face of a
5
6
killer whale unless there are bars in place?

A.
We are making very appropriate and cautious
progress.
from the pool.
edge of the pool and in very close contact.
10
11
On February 25th, we all were three feet back

We now interact with our animals at the
We are
making slow, methodical progress.

Q.
I understand.
I was just talking about the
12
changes that are made that Ms. Mairot testified to
13
yesterday.
14
15
16
So, they can't touch the face of a killer

whale without bars present?
A.
That is where -- that's not true.
We touch
17
the face of killer whales without bars present when
18
we're performing tooth flushes, we can touch the top of
19
their rostrum.
20
Q.
So, you're saying that your supervisor who
21
testified yesterday didn't know what the actual new
22
restrictions were?
23
A.
No, I'm not saying that.
I'm saying Jenny
24
likely after hours of testimony forgot that we have
25
recently progressed probably in the last two months --
CARLIN ASSOCIATES
(216) 226-8157
1519
and I've seen her do it -- to touching the animal on the
top of the rostrum during tooth flush procedures.
yes, this happens without any bars, yes.
BY MR. BLACK:
Q.
But, certainly not Tilikum?
A.
No, we do not touch Tilikum during tooth
flushes.
Q.
9
10
So,
And, no longer do you give hugs to the other
whales?
A.
We are in -- we have just progressed to
11
rehearsing getting some reinforcement history with hugs,
12
with a small moveable bar, and our youngest whale,
13
Makio, has none of these restrictions, and we have been
14
hugging him, very close with him.
15
Q.
I appreciate that Sea World may be making
16
changes, you know, after this hearing occurs, may make
17
changes tomorrow before the Judge has issued a decision.
18
I understand all those things can happen.
19
asking you about the restrictions that were put in place
20
after the incident with Ms. Brancheau?
21
A.
I'm just
And, I'm telling you that we put restrictions
22
in place the day after and we have been making
23
methodical, slow progress, and we have progressed to
24
touching them on the face during tooth flush procedures
25
because we have an abundance of history with this
CARLIN ASSOCIATES
(216) 226-8157
1520
procedure with all the whales, and this is one of the
things that we have assessed, we've analyzed and we've
decided we can move forward.
Q.
Is there any other part of what Ms. Mariot
said yesterday that you disagree with or have a
different view of as to the restrictions working?
7
8
A.
No, I don't disagree with anything that Jen
said yesterday.
Q.
And, these restrictions about interacting
10
from pool edge, these apply to the whales other than
11
Tilikum; that is, these aren't restrictions for Tilikum,
12
right?
13
14
15
A.
He has different restrictions than everybody
Q.
So, the ones that were talked about yesterday
else.
16
or Ms. Mairot talked about related to the interacting
17
lineups for rubdowns and such, those were for whales
18
other than Tilikum?
19
A.
Yes.
20
Q.
And, most of those changes that she testified
21
to were made immediately or shortly after Ms.
22
Brancheau's death, right?
23
A.
Yes.
24
Q.
But they were made well before any OSHA
25
citation was issued in this case, right?
CARLIN ASSOCIATES
(216) 226-8157
1521
A.
Yes.
Q.
They were changes that Sea World itself made
3
4
without any consideration of the OSHA citations?

A.
We made the changes around and in
consideration for our trainers and for our killer
whales.
Q.
And, numerous changes have been made as a
result of Sea World's -- I don't know if you or someone
else used the term -- extensive internal review, right?
10
A.
Yes.
11
Q.
Numerous changes were made as a result of Sea
12
13
14
Wait.
Say that again?
World's extensive internal review?

A.
If you're talking about the review that came
up in Mr. Scarpuzzi's testimony?
15
Q.
Yes.
16
A.
Is that what we're talking about right now?
17
Q.
Yes, ma'am.
18
A.
Yes, I heard him talk about the report, I
19
heard him talk about -- and, really, I'm sitting here
20
trying to make sure I get this right because I certainly
21
don't want to say something -- but what I remember
22
happening there is that team coming to the parks and
23
giving all the trainers an update on their progress,
24
and in the review or in the document, there were those
25
things Mike was talking about in the presentation.
CARLIN ASSOCIATES
(216) 226-8157
1522
1
2
Q.
But, there's a document that reflects the
review that you've seen?
A.
Yes, I saw a presentation.
the document.
Q.
I have not seen
I saw -- I'm sorry.
I'm making a grimace because you first said
-- or I thought you said you saw papers or documents
that Mike had.
A.
presentation.
10
presentation.
11
Q.
Power point presentation?
12
A.
I guess that's what it was.
13
If I did, I said it wrong.
I've seen a
They gathered us in a room and gave us a
It had pictures
and bullet points.
14
Q.
Projector, screen?
15
A.
Yes.
16
Q.
You were looking at a wall?
17
A.
Yes, and it was simultaneously presented.
18
Q.
Handouts given to you?
19
A.
No.
20
Q.
And, so that's not a document or a
21
presentation that's been provided to OSHA in this case?
22
A.
I have no idea what has been provided to
23
OSHA.
I know that there were pictures, a couple of
24
bullet points, it was an update, and it was a power
25
point.
We all came in the room, all the trainers came
CARLIN ASSOCIATES
(216) 226-8157
1523
in, and it was presented, and it was, "Here's what we're
working on.
We're making progress."
I did not -- I don't have the same impression
of it as Mike.
he's the VP of Zoo.
6
7
Q.
He may have had a different -- I mean,
He's in a position that at the Florida Park
would be John Kerivan's position?
A.
Yes.
Q.
So it's a level above you?
10
A.
Yes.
11
Q.
Now, all of these changes that have been made
12
that we've been talking about all trial long, they were
13
made after the incident with Ms. Brancheau, the changes
14
to how you work with Tilikum, to how you stay out of the
15
water with the other whales?
16
to; not every change that we've discussed.
That's what I'm referring
17
A.
Yes.
18
Q.
And, yet, just two months earlier, two months
19
earlier to the day, when Keto killed Alexis Martinez at
20
Loro Parque, there were weren't any changes made to Sea
21
World's protocols?
22
A.
There is no similarity between those two
23
events.
Well, there's one similarity, and that is that
24
they both occurred during sessions, not during show
25
interactions, but that is the only similarity.
CARLIN ASSOCIATES
(216) 226-8157
1524
Q.
I understand you might not like my question,
but I'm going to ask it again.
the day, when Keto killed Alexis Martinez at Loro
Parque, no changes were made to Sea World protocols?
A.
Two months earlier to
We got out of the water, we reviewed the
incident, and no changes were made to Sea World
protocols.
Q.
Or no new written rules put in place?
A.
There were no new written rules put in place
10
at Sea World of Florida.
11
Q.
No memo about how to do things differently?
12
A.
That's not correct.
13
I mean, memo?
What do
you mean, memo?
14
Q.
Paper?
A document?
15
A.
There's a document that is the incident
16
report and we all -- all of the comments are made
17
available to all of the trainers, and those comments
18
were quite specific and quite lengthy on how we could
19
have done things better and how we should make sure we
20
maintain what I talked about I considered to be the
21
biggest red flag which is maintaining an animal's
22
responsiveness to both primary and secondary enforcers.
23
Q.
That's a fair point the way you put it, but
24
my question goes to whether there were any new protocols
25
or rules different than the previous ones in that
CARLIN ASSOCIATES
(216) 226-8157
1525
document?
A.
No, there were not.
Q.
So after Mr. Martinez's death, you took a
short step back, if you will, and you were out of the
water for how long?
6
7
A.
two; I'm not sure.
8
9
10
We were out of the water for either a day or
Q.
So, there was no full examination of Sea
World's killer whale training program after Mr.

Martinez's death?
11
A.
I did a full assessment of the incident and
12
I'll tell you what was unprecedented is that we had a VP
13
of one of the parks going to all the parks to talk about
14
it.
15
incident very seriously.
16
I think that made it very clear that we took the
Q.
Well, he did that in part because trainers at
17
Sea World were very upset and shaken by this incident of
18
a trainer being killed in water work, right?
19
20
21
22
23
24
25
A.
I can't tell you why he did it.
I wasn't the
person who assigned him to do that.

Q.
You didn't have any discussions as to why a
San Diego VP was coming around to your park?

A.
I knew he was coming to talk about the
tragedy that happened at Loro Parque.

Q.
But, you don't know that it was in part
CARLIN ASSOCIATES
(216) 226-8157
1526
because trainers were very shaken and upset by a fellow
trainer's death?
A.
I would think that I would be the person to
manage my group if they're shaken and upset.
wouldn't pull in Mike.
6
7
8
9
10
Q.
shaken?
We
So you're saying your trainers weren't

None of the them were shaken or upset by it?
A.
Of course, we were affected by the death of a
killer whale trainer.

Q.
And, there was no consideration about whether
11
you needed to revamp your protocols or get out of the
12
water permanently with killer whales as a result of that
13
incident?
14
A.
No, there was not.
15
Q.
And, there's no videotape circulating in the
16
public concerning that incident, right?
17
A.
No, there's not.
18
Q.
Have you seen the videotape?
19
A.
Yes, I have.
20
Q.
And, you know Sea World declined or refused
21
22
23
to produce that video in this OSHA proceeding?

A.
I have no idea what was given.
I have heard,
I believe, Mike Scarpuzzi said it's with Loro Parque.
24
Q.
And, you know --
25
A.
I don't know anything about this.
CARLIN ASSOCIATES
(216) 226-8157
1527
MS. GUNNIN:
Judge, I will object to that
question because the implication is that Sea World
declined to give that videotape over.
in possession of it, and that's not just Sea World of
Florida, Sea World Parks and Enterainment is not in
possession of the video of the Loro Parque incident.
Sea World is not
That video was owned and maintained by Loro
Parque.
Loro Parque requested that video to be returned
to them after it was shown by Mr. Scarpuzzi.
It is not
10
in his possession.
11
that Sea World has it and just simply declined to show
12
it.
13
JUDGE WELSCH:
14
BY MR. BLACK:
15
Q.
So, I don't like the implication
Okay, go ahead.
Now, that incident -- you know that that
16
incident didn't receive much media coverage in the
17
United States prior to Ms. Dawn Brancheau's death,
18
right?
19
A.
I don't know.
20
Q.
And, unlike the incident with Mr. Sillick and
21
Ms. Brancheau, the public wasn't present at that
22
incident?
23
A.
That incident happened during a show, but I
24
have no idea if there was public present or not.
25
don't know the facility, I don't know if they have side
CARLIN ASSOCIATES
(216) 226-8157
1528
lines.
could very well have been public there.
The incident happened during a session, there
Q.
Have you read any of the media reports
concerning Ms. Brancheau's death?
you seen anything on TV at all?
Any newspapers?
A.
Yes.
Q.
Do you disagree that it was pretty widely
covered?
A.
I disagree with your --
10
Q.
You don't like the implications?
11
A.
I certainly don't.
Have
Right?
I don't make decisions at
12
Sea World based and whether or not something gets media
13
coverage.
14
Q.
I appreciate -- I mean, you have said that
15
before, and so that's something that the Court will have
16
to determine on a credibility finding, but the question
17
is more direct, and it's just that the Dawn Brancheau
18
incident received lots of media coverage, but the
19
incident involving Mr. Martinez did not?
20
21
MS. GUNNIN:
line of questioning.
22
JUDGE WELSCH:
What is the point, Mr. Black?
23
MR. BLACK:
The point is that --
24
JUDGE WELSCH:
I'm not sure that Ms. Flaherty
25
Clark is in a position to talk about what Sea World as a
CARLIN ASSOCIATES
(216) 226-8157
1529
corporation is doing or not doing based on media
coverage or not.
accordance with what media coverage is and whether or
not somebody else responds or doesn't respond.
I don't think she conducts her job in
And, even if they did, I'm not sure how that's
going to assist me in making a decision regarding any
issues that are before me.
8
9
10
MR. BLACK:
hearing brief when the parties submit their post hearing

briefs.
11
JUDGE WELSCH:
12
BY MR. BLACK:
13
Q.
14
Of course, we will submit a post
I know that.
Let's move on.
Now, you recall yesterday some testimony
regarding the desensing of Tilikum?
15
A.
Yes.
16
Q.
That there had been some efforts in the med
17
pool to desensitize him to people in the water?
18
A.
Yes.
19
Q.
In case somebody fell in?
20
A.
No, I didn't say that, I'm pretty sure.
21
Q.
In case somebody ended up in the water with
A.
In the highly unlikely event that somebody
22
23
24
25
him?
ended up in the water with him.

Q.
And desensing sessions, of course, those took
CARLIN ASSOCIATES
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1530
a significant amount of time, right?
A.
No.
Q.
Well, it took time that you couldn't spend
working with Tilikum on other behavior priorities,
right?
A.
No.
It was a part of any session that we
were doing.
It could be a part of any session that we
were doing.
We might bring him into the pool, do a
tooth flush and raise him up and rub him, or we might
10
work on a certain vocalization and then do it.
11
just a part of his day.
12
Q.
It was
But, you say that someone ending up in the
13
water with him would be, what did you say, a low
14
probability or highly unlikely event?
15
A.
Yes, I used highly unlikely.
16
Q.
Does highly unlikely mean something different
17
than low probability?
18
A.
I choose highly unlikely.
19
Q.
Okay, well, we'll stick to your words then.
20
21
Sea World has had trainers fall during their

jobs at Shamu Stadium before, right?
22
A.
Very rarely.
23
Q.
But it's happened?
24
25
Trainers have fallen on
stage?
A.
Yes.
CARLIN ASSOCIATES
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Q.
It's happened.
A.
Yes.
Q.
Sometimes it's even reflected on an OSHA
They have fallen, tripped on the stairs?
injury log, right?
A.
I imagine so.
Q.
But, lots of times when they fall, it
8
9
probably wouldn't lead to an injury?

A.
I can't speculate on if someone falls, if
10
they are going to be injured or not, and you're saying
11
lots of times when they fall, and I just told you that
12
they rarely fall.
13
again.
14
Q.
So I have a hard time with your words
Well, you're not at Shamu Stadium at the pool
15
area to observe everything that's going on there at all
16
the pools at all times?
17
18
19
A.
No, I'm not.
I count on my management staff.
We have a high level of communication.

Q.
So, you count on the effectiveness of
20
communication, including maybe a trainer reporting,
21
"Oops, I slipped"?
22
A.
Yes.
23
Q.
And, so a trainer might, in fact, have no
24
reason to report, "Oh, Ms. Clark, I slipped.
25
wanted to let you know.
I just
Nothing happened, and I got
CARLIN ASSOCIATES
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1
2
back up"?
A.
I'll tell you what, a trainer would feel
quite comfortable reporting to me if they slipped
because we actually make it a part of our training.
talk about being careful around the pools, we talk about
making sure -- we actually have it as part of our
checkoff, the sheet that you saw yesterday, how to walk
over the pools, and whether or not you should carry
things.
10
We
So, I think because it's a part of their
11
training, I think that they would be quite comfortable
12
and quite willing to say, "Hey, I tripped."
13
Q.
Now, you're doing a behavioral assessment of
14
the trainers, saying that they would feel quite
15
comfortable.
16
their mind.
17
A.
I mean, you don't know what's going on in

You're just speculating?
I am around Shamu Stadium a lot more than the
18
man who's questioning me.
19
slipping more than rarely; falling more than rarely.
20
Q.
I am not aware of people
And, with these falls, Sea World may -- you
21
think they're rare and, yet, Sea World has taken the
22
time to engage in the desensing of Tilikum?
23
A.
Yes.
24
Q.
In order to make things safer?
25
A.
In order to try to make an impact on his
CARLIN ASSOCIATES
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1533
learning history, on his history.
Q.
To make things safer?
A.
Yes.
Q.
There was some testimony regarding desensing
about the gastric procedures with Tilikum, right?
A.
Yes.
Q.
And, Sea World ceased doing that, I thought
you said after Daniel Dukes' death?
A.
Yes.
10
Q.
So that was in 1999?
11
A.
Yes.
12
Q.
So, since 19
13
A.
Well, we held or reviewed -- we reviewed
--
14
after Daniel Dukes, but we resumed performing the
15
gastric procedures.
16
Q.
Resumed performing them?
17
A.
Yes, we did.
18
Q.
What was it about Daniel Dukes -- well, how
19
long did you stop doing those gastric procedures after
20
Daniel Dukes' death in 1999?
21
A.
22
question.
23
Stadium.
Actually, I'm not the person to ask that

In 1999, I was at the Whale and Dolphin
24
JUDGE WELSCH:
Pardon?
25
THE WITNESS:
I was at Whale and Dolphin
CARLIN ASSOCIATES
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1534
Stadium in 1999.
BY MR. BLACK:
Q.
And, has Sea World concluded now -- well,
they have since ceased doing the gastic procedure since
Ms. Brancheau's death, right?
A.
We took a step back after we found Mr. Dukes
in the pool.
We assessed everything.
wasn't part of the "we."
gastric tube samples.
Actually, I
Sea World stopped doing the
Much like we're doing now, they
10
slowly progressed back to Tilikum to the point where --
11
because there was no evidence that Daniel Dukes had been
12
grabbed or pulled into the water, so we resumed it.
13
it was going on before Dawn's death, yes.
14
15
Q.
So,
And, at Sea World they're now doing the
gastric procedures for Tilikum?
16
A.
Now, we are not.
17
Q.
And, that's because it would be dangerous to
18
19
put an arm down his throat?

A.
He now has a behavioral history of pulling
20
something into the pool.
He did not have the behavioral
21
history at all, and I think Jenny talked about that a
22
lot yesterday, so I don't need to go into it, but he did
23
not have the behavioral history of pulling something
24
into the pool.
25
something into the pool.
We now have an event where he pulled

We will not be putting our
CARLIN ASSOCIATES
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1
2
3
hands in his mouth.

Q.
Just so I understand, what's your definition
-- by behavioral history, do you just mean it happened?
A.
Yes, it is part of his behavioral history.
Q.
And behavior that he has exhibited?
A.
He's exhibited that behavior.
Q.
And, you generalize -- you say that the
danger is that he might pull something, he might pull an
arm, right?
10
That's part of his behavioral history now,
right?
11
A.
12
pulled an arm.
13
and as a result of pulling, a woman ended up in the pool
14
with him.
15
No, his behavioral history is not that he has

His behavioral history is that he pulled
So, because he has that history, we are not
16
going to get close enough to have any part of us in a
17
tug of war.
18
19
Q.
And, it's Sea World Company's position that
what he pulled was Ms. Brancheau's hair?
20
A.
He pulled Ms. Brancheau's hair.
21
Q.
And, from pulling the hair, you now consider
22
him to have a behavioral history of pulling things such
23
that he presents a risk of pulling an arm?
24
A.
Yes.
25
MR. BLACK:
Judge, could we take a short break
CARLIN ASSOCIATES
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1536
now?
more minutes.
3
4
Is this a good time?
JUDGE WELSCH:
I could keep going for a few
We'll take our morning break now.
We stand adjourned until 25 'til.
We're adjourned.
JUDGE WELSCH:
Ms. Flaherty Clark, I'll remind you you're still under
oath.
10
THE WITNESS:
Yes, sir.
11
JUDGE WELSCH:
12
BY MR. BLACK:
13
Q.
Ms. Clark, yesterday, you testified, I
14
believe, that Sea World of Florida has not had an
15
incident after 2006?
16
A.
Yes.
17
Q.
And, by that, you mean has not had a recorded
18
19
20
21
22
23
incident?
A.
We have not had an incident report.
Actually, we have not had an incident report, no.

Q.
Because in 2006, of course, we heard about
the Shanna Groves incident, right?

A.
Actually, because I was privy to that
24
testimony, that's why I said 2006.
25
incident prior to 2005 until Shanna talked about her
CARLIN ASSOCIATES
I did not know of an
(216) 226-8157
1537
1
2
3
incident with Ikaika.

Q.
So, there's no incident report for that 2006
incident with Ms. Groves?
A.
There's not an incident report in the book.
Q.
And, there's not an incident report for Dawn
Brancheau in 2010 that's recorded in an incident report,
right?
A.
No.
Q.
No incident report for the 1999 death of
10
11
Daniel Dukes, right?

A.
That would not be an incident report.
We
12
don't know the behavior around it, we don't have any way
13
-- it certainly would not be something that we as animal
14
trainers would write up an incident report on.
15
Q.
You said that you evaluated after Daniel
16
Dukes' incident whether to keep doing gastric procedures
17
with Tilikum, right?
18
A.
I said I was aware that we stopped them.
19
did not do the evaluating.
20
Stadium.
21
Q.
I was at Whale and Dolphin
But, you are aware that Sea World did some
22
type of evaluation of what it could or should or
23
shouldn't do with Tilikum after Mr. Dukes, right?
24
25
A.
We reviewed his entire scope of behaviors,
and we made forward progress as it was appropriate.
CARLIN ASSOCIATES
(216) 226-8157
1538
Q.
2
3
Let me change gears here slightly.

I would like to ask you about another kind of
record or report that Sea World keeps.
Sea World prepares something called a monthly
recap?
monthly recap of what the whales did during that month
and behaviors?
A.
Maybe they don't have that title, but it's a
There's a bit of communication that we have
historically had some of the less experienced trainers
10
gather on the whales from experienced trainers, and it's
11
like an update, I think, might be what you're referring
12
to, but you're probably going to give me something to
13
look at.
14
Q.
I will most assuredly.
An update maybe.
15
don't know what it's called.
16
going to show you doesn't have a title, so there's
17
something, maybe monthly updates?
18
19
20
21
A.
The document that I'm
It doesn't even -- it's not something that
even comes to me.

Q.
It's not a report, no.
But, it's a record that's done for the less
experienced trainers?
22
A.
I would not call it a record, no.
23
Q.
It's a document that Sea World, the
24
25
communicator creates.
A.
I wouldn't even call it a document.
CARLIN ASSOCIATES
(216) 226-8157
This is
1539
something that the less experienced trainers have an
opportunity to communicate around and talk about
behavior of the whales with their team members.
Q.
We have been provided in discovery 60 pages
recording Tilikum, sort of monthly recaps for Tilikum,
so that's something that was produced in this case by
Sea World and I want to show you.
8
9
MS. GUNNIN:
Judge, may I enter an objection.
This is well beyond the scope of Direct Examination of
10
Ms. Flaherty Clark yesterday.
I did not talk to her
11
about monthly recaps and as
12
Black called Ms. Flaherty Clark in their case in chief,
13
and she spent a day on the stand.
the Court is aware, Mr.
14
So, I think if we're going to go down new
15
territory that is beyond the scope of Direct and have
16
her testify about new documents after she's already been
17
on the stand for now going on almost a day and a half, I
18
think we won't end this trial this week at this pace.
19
20
21
22
23
24
25
JUDGE WELSCH:
Well, we will end this trial this
week.
MR. BLACK:
Let me just show you, then, the
pertinent page.
JUDGE WELSCH:
Let's deal with the objection.
Is this beyond the scope of Direct?

MR. BLACK:
No, this will not be beyond the
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1
2
scope, and if it is, you can strike it.

JUDGE WELSCH:
There were no questions asked
about monthly update reports.
testimony, though, about reports.
allow you a little bit of leeway, but I don't want to
get into whole new areas.
7
8
MR. BLACK:
I know there was
Certainly.
This is Page 130, Tab C-32.
JUDGE WELSCH:
10
BY MR. BLACK:
11
Q.
So, I'm going to
If I might approach.
Yes.
Ms. Clark, this is from a document provided
12
to us in discovery by Sea World, so the document came
13
from Sea World.
14
is for Tilikum, right?
If you would look, first of all, this
15
A.
Yes.
16
Q.
And, the communicator for Tilikum is Megan
17
Maserati.
Do you know Megan?
18
A.
19
February 2007.
20
maybe a senior trainer -- I would have to look -- when I
21
got my job in May of 2008.
22
experienced trainers at this time.
23
Q.
I'll tell you what, this is from

Megan Maserati was a trainer level,
She was one of our less
Would you look down there for where it says,
24
"Aggression incident, February 25."
25
split post immersion, swam around the pool.
CARLIN ASSOCIATES
It says, "Tilikum
(216) 226-8157
When called
1541
over, he thrashed towards LMS."
Do you see that?
A.
I sure do.
Q.
So, apparently, there was an aggression
incident involving Tilikum in February of 2007 that you
were not aware of?
A.
Yes.
What this is not is a document -- this
is a communication piece around the animals.
So,
there's nothing around -- and, you know, this is yet
another piece of information that was probably not
10
written to be brought into a courtroom because
11
aggression incidents means, was there any situation
12
during the past month that Tilikum either had an
13
altercation with an animal or swam around the pool.
14
This is not an incident report.
15
Q.
Well, you described things meriting an
16
incident report, anomalous behavior involving
17
aggression?
18
A.
Yes.
19
Q.
And, so this says Tilikum split post
20
21
22
23
24
25
immersion.
A.
Immersion is a segment of the show?

Immersion was a segment of the Believe Show.
I was not at Shamu Stadium in February of 2007.

Q.
So, Tilikum split.
That means he left where
he was supposed to be, right?

A.
That would be the language we would use, but
CARLIN ASSOCIATES
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1542
I was not at the stadium, nor was I involved in any
communication around Tilikum in February of 2007.
Q.
And, then he swam around the pool.
When
called over, he thrashed toward LMS.
LMS is Linne
Schaber?
A.
No, it is not.
Q.
Who is LMS?
A.
Lindsey Schemm.
Q.
So, this looks, then, like aggression
10
involving Tilikum, according to the communicator, in
11
which Tilikum has thrashed towards a trainer after he
12
split, right?
13
A.
14
accept the words there, sure.
15
16
Q.
So, it appears to be yet another incident of
aggression that's not reported in an incident report?
17
18
Yes, that's what it looks like, and I will
A.
This would not be an incident report.
This
would not be a recordable event.
19
Q.
How do you say that with such confidence?
20
A.
Because we didn't see an incident report on
Q.
So, it doesn't rise to the level of an
21
22
it.
23
incident report because there's not one?
24
testimony?
25
A.
Is that your
It is not behavior that -- I mean, I cannot
CARLIN ASSOCIATES
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1543
assess this sentence.
you about this is named Lindsey Schemm.
3
4
Q.
The person who can talk to you
So, I thought you testified earlier that Sea
World encourages this open dialogue with trainers?
A.
Absolutely.
Q.
Even less experienced trainers, right?
A.
That's what this is.
This is an opportunity
for less experienced trainers to dialogue around an
animal's progress, an animal's -- it's an opportunity
10
for trainers to talk to more senior trainers about
11
behavior, about husbandry, about communication.
12
Q.
So, you're saying that this observation isn't
13
reliable because it was done by a trainer with less
14
experience?
15
A.
This observation was not done by a trainer of
16
less experience.
17
who gave her an update that she reported.
18
This trainer talked to Lindsey Schemm
She did not make these observations.
19
not.
20
didn't do.
21
part of the stadium in February of 2007.
22
can't help you with that.
23
24
25
She did
Well, you know what, I don't know what she did or
Q.
That's where I should go because I was not a

So, I really
So, for all you know, this is, in fact, an
incident that didn't get recorded for Tilikum?

A.
I am sure it is not an incident that didn't
CARLIN ASSOCIATES
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1544
get recorded because while I wasn't a member of the
Shamu Stadium team, I was the assistant curator of Whale
and Dolphin, and we had weekly communication meetings
with management in which all of the animals, events were
discussed, and anything anomalous or something or they
have an incident report would have been brought to my
attention.
Q.
I'm sorry, you were --
A.
I'm confident that I would have known.
10
Q.
-- the assistant curator at Whale and
11
Dolphin?
12
A.
Yes.
13
Q.
And, in 2006, was that your position as well?
14
A.
Yes.
15
Q.
So, when the Shanna Groves incident happened,
16
that incident, in fact, would have been discussed and
17
brought to your attention as well?
18
A.
Yes.
19
Q.
And, you didn't recall any until she
20
21
testified here on the stand?

A.
I didn't recall that it had been written up
22
as an incident report.
23
young whale was doing an interaction with a trainer, and
24
there was behavior around that.
25
Q.
What I recollect is that a very
In fact, it wasn't written up as an incident
CARLIN ASSOCIATES
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1545
report, right?
A.
She testified that she wrote something.
didn't make a full report.
parks.
5
6
7
8
Q.
It
It didn't circulate to other
Well, it might have circulated to other
parks, but it didn't end up in Exhibit C-6?

A.
I have no knowledge of it circulating to
other parks.
Q.
You have no knowledge one way or another?
10
A.
I have no knowledge of it circulating to
11
12
13
14
15
16
other parks.
Q.
So, that means you don't know whether it did.
It might have; it might not have?

A.
I think I would have known if it circulated
to other parks.
Q.
You're willing to speculate that you think
17
you would have known; yet, you're not willing to
18
speculate about other things that are not speculations
19
in your favor?
20
MS. GUNNIN:
Judge, I'm going
21
JUDGE WELSCH:
Sustained.
22
BY MR. BLACK:
23
Q.
--
So, this incident as recorded by the
24
communicator on the Tilikum team, that would now
25
constitute three incidents of behavior, the last three
CARLIN ASSOCIATES
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1546
incidents not being recorded by Sea World in an incident
report?
A.
this incident.
speculation, but I can tell you around the language
here, that the animal didn't even come out of the water.
He was swimming.
8
9
I can't tell you exactly what happened in

What I can tell you would be
I am speculating, but I really want

Judge to understand here.
the
When he split and swam around
10
the pool, he was swimming around the pool.
11
trainer said, "Hey, Tili, come over here," he went, "I'm
12
not ready yet," and swam around the pool.
13
When the
That is what I'm taking from this.
I was not
14
present.
15
be a precursor to aggression.
16
aggression incident.
17
aggression and the trainer obviously made the right
18
decision, based on her training, and we don't have an
19
incident report.
20
21
I'm not privy to an incident report that would
JUDGE WELSCH:
It would not be an
It would be a precursor to
So, incident reports are limited
to actual aggressive behavior --
22
THE WITNESS:
Right, not a precursor.
23
JUDGE WELSCH:
-- by a killer whale.
24
not for precursors?
25
THE WITNESS:
Correct.
CARLIN ASSOCIATES
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They're
1547
JUDGE WELSCH:
I guess only to the precursor
only if it led eventually to an actual aggressive
behavior?
THE WITNESS:
Right.
JUDGE WELSCH:
Then, you would have an incident
6
7
report?
THE WITNESS:
Right, and you would include all
the precursors that you identified on that incident
report.
10
BY MR. BLACK:
11
Q.
12
13
So, splitting and thrashing towards a trainer
is not be an aggressive incident?

A.
Would it not be an aggressive incident.
He
14
split away, and then when she called him back -- and I
15
have to say again that I was not standing poolside, but
16
because I've seen this behavior before with whales, he
17
was swimming around the pool during a part of the show.
18
She walked up to the side and said, "Are you ready to
19
come over?"
20
ready.
And, as he swam by her he went, "I'm not
I'm not ready."
21
Q.
At least that's your speculation of what --
22
A.
What I can tell you is this is not an
23
aggression incident that the label of this form -- it's
24
not even a form, it's not a document.
25
communication tool.
CARLIN ASSOCIATES
It's a
(216) 226-8157
1548
Q.
Well, it is a document.
A.
I wouldn't call it a document.
that before.
between the trainers.
5
6
7
Q.
I've said
I mean, it's a communication that happens
Well, it's a piece of paper, so it's a
document.
A.
Well, we have a different definition of
document, I guess.
It's a piece of paper with some writing on it with some
10
11
I don't know, is this a document?
headings.
Q.
Let's turn to the 1997 incident report for
12
Kristin McMahon-Van Oss, please, Page 609.
13
there?
Is it not in
14
A.
No, it's here.
I forgot my water.
15
Q.
Do you recall giving some testimony to Ms.
16
Gunnin about this report yesterday maybe without looking
17
at the report but giving testimony about the report?
18
A.
Yes, we were talking about going to -- is
19
this the one?
20
Q.
Yes.
21
A.
Yes, I remember that.
22
Q.
Do you want to take some time to read it
23
because I'm going to ask you a few questions about it,
24
and I don't want you to feel unprepared?
25
A.
Sure.
Thank you (reviewing document.)
CARLIN ASSOCIATES
(216) 226-8157
Okay.
1549
1
2
Q.
This was an incident involving a whale
pulling on a sweatshirt?
A.
Yes.
Q.
Pulling the trainer into the water?
A.
Yes.
Q.
And, you said yesterday the behavioral
significance of the incident was that the call-back
worked?
9
10
A.
No, I was not referring to this incident when
I talked about that, I don't think.
11
Q.
The record will show what it shows.
12
A.
Yes, we've heard about a lot of incidents,
13
14
and I may have gotten confused, but, yes.

Q.
I want to look at another portion of the
15
incident report, and I want your opinion.
Attorneys
16
reading incident reports is not necessarily that high.
17
Nonetheless, I'll risk getting into it.
18
A.
Okay.
19
Q.
If you turn to Page 614, the last two
20
sentences of what Sea World California's curator wrote.
21
Can you read, beginning with, "We agree"?
22
A.
"We agree with your corrective course of
23
action, but hope that you plan to eventually
24
desensitize all the whales to work well with you
25
regardless of what you're wearing."
CARLIN ASSOCIATES
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Q.
Go on.
A.
"You can't guarantee that this apparel
or hair, objects, etcetera, will never be within
reach.
Q.
Better to address the problem."
So, you said as a result of this incident,
that Sea World instituted wet suits, required wet suits
when trainers are interacting with the whales on stage
or near the whales?
A.
I know at Sea World Florida, we did.
10
Q.
And instituted or got break-away whistles or
11
break-away lanyards?
I can't remember which you said.
12
A.
Yes.
13
Q.
Is it a break-away whistle, do you call, or a
14
break-away lanyard?
15
A.
I don't remember what I called it, but you've
16
got it right.
17
Q.
And, that's in case a whale tries to grab
18
your whistle, it will break away from the trainers neck,
19
right?
20
A.
Yes.
21
Q.
Now, there's no requirement --
22
A.
Actually, let me look at the date.
23
They already had break-away whistles in 1997.
24
mistaken.
25
Q.
`97.
I was
So, your testimony is that when you say --
CARLIN ASSOCIATES
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A.
We changed to no loose clothing.
Q.
After this incident, you went to no loose
clothing.
You already knew to have break-away whistles
to prevent trainers from being pulled in by a whistle or
pulled upon by a whistle?
A.
We had break-away whistles.
Q.
What was the purpose of the break-away
8
9
whistles?
A.
So that if it got caught or -- you know, it
10
was something around our neck, and we didn't allow any
11
jewelry or anything like that.
12
caught, it would break.
So, this way, if it got
13
Q.
Got caught, for example, in a whale's mouth?
14
A.
Got caught.
15
Q.
Including in a whale's mouth?
16
A.
Well, we use whistles with dolphins and sea
17
lions, and all the animals.
18
mouth.
19
20
Q.
So, sure, any animal's
But, this incident report, of course, was
circulated to all the Sea World Parks.
21
A.
Yes, it was.
22
Q.
And, as a result of this incident, Sea World
23
of Florida did not institute any requirement for woman
24
to secure their ponytails in a bun, did they?
25
A.
No, we continued to desensitize our animals
CARLIN ASSOCIATES
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to ponytails.
Q.
So, you didn't institute a requirement to
secure ponytails in a bun?
A.
We did not.
Q.
And, today, after the incident with Tilikum
and Ms. Brancheau, you require woman with ponytails to
secure it in a bun, right?
A.
Yes, we do.
Q.
So even though this incident report clearly
10
reports the need to secure objects, including hair, Sea
11
World didn't institute the securing in a bun
12
requirement?
13
A.
14
objects.
15
including hair, objects, etcetera.
It says plan to
16
eventually desensitize all whales.
It doesn't say to
17
secure.
18
Q.
No, it doesn't say the need to secure

It says desensitize the whales to objects,
It says you can't guarantee that this apparel
19
or hair or objects will never be within reach, so better
20
to address the problem, right?
21
A.
Well, I would rather you didn't read one
22
sentence.
23
reports.
24
first sentence is the one that says:
25
You know how I feel about these incident

You had me read both of those sentences.
The
"Hope you plan to eventually desensitize all
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the whales to work well with you regardless of
what you are wearing.
apparel, hair objects, etcetera, will never be in
reach."
You can't guarantee that
When you read this and you understand that
this is a circulated document, this is Sea World of
California's suggestion to make sure that we desensitize
animals to things like ponytails.
Q.
And, one of the things that Sea World
10
apparently had learned earlier was that rather than
11
desensitizing the whales to whistles, that it made sense
12
so put them on break-away lanyards?
13
A.
That is an incorrect statement.
The whales
14
are completely desensitized to our whistles, but in the
15
unlikely event that our whistle might get caught up, it
16
will break away.
17
desensitized to whistles in and out of the water.
Our animals are completely
18
Q.
Now --
19
A.
The lanyard that the whistle is on and the
20
whistle.
21
Q.
The incident report here, you would agree
22
with me, it does state forgetting how you correct it, it
23
states that you can't guarantee that the hair won't be
24
within reach of the whale, right?
25
A.
Right, so desensitize it.
CARLIN ASSOCIATES
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Q.
Yes, that's one approach, right?
A.
That's the suggested approach from the
3
4
5
6
incident report.
Q.
Okay, let's talk about -- you know, we talked
earlier about generalizing, right?

A.
The suggested approach from Sea World of
California is desensitize the animals to ponytails and
objects.
Q.
Well, there wasn't an effort to desensitize
10
the whales to loose clothing.
11
addressed by putting on tight-fitting wet suits, right?
12
A.
Because there wasn't a need to work the
13
animals in loose clothing.
14
certainly.
15
16
17
Q.
Instead, the problem was
This particular animal,
Not any need to work the animals with
unsecured ponytails either, right?

A.
Well, at this time, it was you can't
18
guarantee that the hair is not going to be near them.
19
So, obviously, we took it very seriously and
20
desensitized all our animals to whales and ponytails.
21
Q.
And, the way you desensitized Tilikum as to
22
ponytails was for trainers to interact with Tilikum
23
while the trainer had her ponytail loose, right?
24
25
A.
Tilikum has interacted with trainers with
ponytails loose since his arrival at Sea World.
CARLIN ASSOCIATES
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So, for
1555
19 years, he's had daily exposure to varying lengths of
hair very close to him.
Q.
So, by desensitization, the process is just
going on and interacting next the him with your hair not
secured, right?
A.
You're absolutely correct.
Desensitization,
you have just defined it.
desensitization -- exposure to a stimulus and a
desensitization thereof.
10
Q.
Exposure to and the
So, it's not like, for example, Sea World
11
would dangle a wig or hair near Tilikum and desensitize
12
him that way to not grab hair or a wig, right?
13
not what desensitization is?
14
A.
That's
For 19 years, Tilikum was exposed to
15
ponytails dangling near him, ponytails of varying
16
length, ponytails of varying color, wet ponytails, dry
17
ponytails, thick ponytails, thin ponytails, he was
18
desensitized to ponytails.
19
Q.
And, when you use the term, "desensitize,"
20
what you really mean is exposed.
21
them?
He was exposed to
22
A.
He's desensitized to them.
23
Q.
Which means exposed?
24
A.
He was desensitized to them.
25
Q.
And, are you disagreeing that the
CARLIN ASSOCIATES
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desensitizing that occurs is just exposing him to them?
2
3
A.
He was not only exposed to ponytails, he was
Q.
Desensitized is a conclusion, it sounds like.
It's a conclusion of what is in Tilikum's mind, what
Tilikum is thinking.
your word for --
What do you mean?
A.
An animal exhibits behavior --
Q.
Having worked around --
10
Desensitized is
JUDGE WELSCH:
Wait a minute.
12
THE WITNESS:
Okay, sorry.
13
JUDGE WELSCH:
Did you finish your question?
14
MR. BLACK:
I did, and, I'm sorry, I talked
11
15
time.
over you.
16
BY MR. BLACK:
17
Q.
18
One person at a
Tilikum was desensitized to hair to use your
term by repeated exposure to hair, right?
19
A.
Yes.
20
Q.
So, that desensitization was being repeatedly
21
22
exposed to hair or ponytails?

A.
An animal shows behavior when they're
23
sensitized.
An animal shows behavior when they are
24
desensitized.
25
something and becomes desensitized, they don't show the
When an animal has a lot of exposure to
CARLIN ASSOCIATES
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behavior that they show when they are sensitized.
I'm trying to think of an example I can give
you.
I am not desensitized to being in this environment
at all.
very well would recognize that I am not desensitized.
Put me in front of a killer whale, and you will see a
different person.
My behavior is showing.
8
9
People who know me
I have been around killer whales a long time.

If I put Mr. Black around a killer whale, he's going to
10
be very sensitized.
11
which a stimulus elicits no response, and the ponytail
12
-- Tilikum had been desensitized to ponytails.
13
responded, he never reached toward a ponytail, he never
14
backed his head away from a ponytail, he never noticed a
15
ponytail, the ponytail never interrupted his course of
16
behavior.
17
18
19
Q.
So, desensitization is a process by
He never
So, you knew he was desensitized because he
had never pulled on a ponytail?

MS. GUNNIN:
Judge, I think she has clarified
20
at length her opinion that Tilikum was desensitized to a
21
ponytail.
22
JUDGE WELSCH:
23
move on, Mr. Black.
24
BY MR. BLACK:
25
Q.
I understand.
Sustained.
Let's
So, the reason that you believe that -- I
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haven't gotten an answer, I don't think, to this
question.
3
4
5
The reason you believe --
JUDGE WELSCH:
want.
You haven't gotten the answer you
You've gotten an answer.

MR. BLACK:
A fair point.
And, if you would
indulge me, Your Honor, and listen to my question, and
decide whether this is an asked and answered question
because I don't think I've gotten an answer.
9
10
BY MR. BLACK:
Q.
You concluded that Tilikum was desensitized
11
as to ponytails, and your conclusion that he was
12
desensitized was based on the fact that he had been
13
exposed and the fact that he had never grabbed a
14
ponytail, right?
15
16
17
MS. GUNNIN:
Judge, that is the question that
has been asked multiple ways.

MR. BLACK:
I think that's a yes -- I don't
18
understand what is objectionable about the question and
19
I didn't get an answer.
20
21
JUDGE WELSCH:
Sustained.
I think we've covered this.
Let's move on.
22
BY MR. BLACK:
23
Q.
And, sometimes in desensitizing whales, they
24
exhibit certain behaviors which show the need for you to
25
rework the desensitizing process with the whale, right?
CARLIN ASSOCIATES
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A.
Yes.
Q.
So, sometimes you might think a whale is
desensitized, and then when you find that, no, in fact,
the whale grabs this or interacts with this, that, in
fact, your conclusion that the whale was desensitized is
not accurate?
A.
I don't think I would say that.
Q.
What part of that do you disagree with?
A.
You're using desensitization very awkwardly.
10
And, you're basically saying that you want me to say
11
"yes" or "no," and I wouldn't say the words that you're
12
saying.
13
what you're saying, and so I don't want to feel like I'm
14
not answering your question, but you're basically
15
framing the question and then expecting me to --
16
Q.
So, if you could ask me -- I just wouldn't say
I know I might not be framing it the way you
17
would like, so if there's something that is misframed,
18
you can tell me what part you object to.
19
A.
It's not like or dislike.
Okay?
It's you're using
20
behavioral terminology that I don't think you're really
21
familiar with.
22
situations.
23
Q.
So, you're throwing it into awkward
Sure, I understand your opinion of my
24
behavioral knowledge, but you've had, for example,
25
instances where whales have grabbed onto things in the
CARLIN ASSOCIATES
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water, and because of that, you've said we need to
desensitize the whale so that they don't grab onto those
things.
would like.
5
6
We can pull out the incident reports if you
A.
Okay, I think you're talking about socks or
ponytails or --
Q.
Take your pick.
A.
Sure, yes.
Q.
So, whales in the water shouldn't grab a sock
10
or a ponytail.
Sea World as part of their corrective
11
plan has been to desensitize that whale to a sock or a
12
ponytail?
13
A.
To continue the process of desensitization.
14
Q.
And, the only way that you know that the
15
desensitization has succeeded, if you will accept that
16
term, is because the behavior hasn't occurred again.
17
That is the definition of success is that you haven't
18
seen that behavior again?
19
A.
What behavior?
20
Q.
The pulling that you were desensitizing
21
22
against, the pulling of hair, the pulling of the sock.

A.
I'm not desensitizing against a behavior, and
23
I think this is why this is so awkward for you and I.
24
I'm desensitizing a stimulus.
25
against something.
I'm not desensitizing
I don't know how can explain this to
CARLIN ASSOCIATES
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1
2
you.
Q.
That's a fair point.
You're not
desensitizing against the behavior, you're desensitizing
the whale as to the object so the whale won't engage in
the behavior.
Is that a better way to say it?
MS. GUNNIN:
Judge, this is far beyond the
scope of Direct Examination.
I did not have a Direct
Examination with Ms. Flaherty Clark that involved the
desensitization process of the killer whale.
In fact, I
10
didn't even ask her any questions about the training
11
process of killer whales.
12
question with regard to the desense that was done for
13
Tilikum specifically.
I asked her a very specific
14
JUDGE WELSCH:
15
Did you understand his last question?
16
THE WITNESS:
17
Where are we?
18
what you said.
Overruled.
Go ahead.
I think we're done, aren't we?
I said I'm not desensitizing -- repeat

You said something about engaging.
19
BY MR. BLACK:
20
Q.
You desensitized the whale to the object, the
21
sock, the hair, for the purpose of preventing the whale
22
from engaging in a behavior such as grabbing that sock
23
or object or reacting in any way to that sock or object
24
or hair?
25
A.
The second one is pretty close, yes.
CARLIN ASSOCIATES
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Q.
Would you like to fix it for me and say --
A.
We desensitize them so that they don't show
behavior around that object, yes.
Q.
So, they will ignore that object?
A.
No, not necessarily.
Q.
With the hair?
A.
To desensitize something, a training pool.
can desensitize an animal.
the animals, we will use our hands, and then when we
When we first start training
10
progress from our hands to what we call a target,
11
sometimes the animal is like, "Whoa, what's that?"
12
So, we will spend a lot of time desensitizing
13
them, not having this reaction anymore.
14
sensitized.
15
whole lot of time with them in saying, "That's okay,
16
little guy, this is just like my hand.
17
this around you."
18
They're
They don't know what that is, so I spend a
We just want
So, in the desensitization process, I'll
19
touch the animal with the target, I'll put the animal in
20
the pool, I'll rub them, have it just standing near me,
21
have it rolling on the deck so that they know when they
22
see a target pulled, they're no longer like, "What's
23
that?"
24
25
So, the process of desensitization is, "I've

been exposed to this, I know what this is, I have seen
CARLIN ASSOCIATES
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1563
it in all kinds of situations, and I'm no longer going
to react to this stimuli being in my presence."
Now, I don't want them to ignore target pull
because I might want to move on to training to touch the
target pull and then using that target pull to train
them to leap out of the water.
So, it not desensitizing the animal to the
target pull in the hopes that he will completely ignore
the target pull in that instance.
And, I think this is
10
why this is so difficult for me.
11
desensitization and terminology and wrapping it into
12
situations that don't apply.
13
You're using
So, there's an example of why I just can't
14
simply say, "yes, you're right," because my brain goes
15
straight to behavior which is, no, I wouldn't
16
desensitize an object in the hope that somebody would
17
never -- you know, there are plenty of examples when you
18
would desensitize an object that you would want to teach
19
in their environment.
20
Q.
What about a trainer's hair and desensitizing
21
as to the hair?
22
do with regard to the hair?
23
24
25
A.
What is it that you want the whale to
We want the whale to not have any response to
the hair being in their environment.

Q.
To ignore it, if you will, or do you disagree
CARLIN ASSOCIATES
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with that?
A.
Sure.
Q.
So, with Tilikum, the desensitizing was to
get him to ignore hair, right?
A.
No, I'm saying today Tilikum was desensitized
to ponytails.
Q.
Okay.
A.
I didn't have a reason to desensitize him to
ponytails, meaning I didn't interact -- we haven't
10
interacted with him for 19 years, saying we have a
11
reason to desensitize him to ponytails.
12
what I'm saying is more in 19 years, he's never reacted
13
to a ponytail, so I as a behaviorist assume he is
14
15
behavior around ponytails before.
16
Q.
So, I think
I have never seen any
Even though you've seen other whales pull on
17
hair, pull on other objects, you're willing to assume
18
what because Tilikum has not pulled on hair, he will not
19
pull on hair; is that a fair statement?
20
A.
Yes.
21
Q.
So, until the first incident that happened
22
that shows that you're wrong, that actually the
23
desensitization process hasn't worked, until that point
24
you're going to consider that desensitization has been
25
successful?
CARLIN ASSOCIATES
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A.
I don't see any behavior around a certain
stimulus.
I will say that the animal is desensitized to
that stimulus.
Q.
So, the whale gets a first time, first event,
first pull until you conclude, wait a second, maybe he's
not desensitized in a way that will cause him to ignore
the object?
8
9
A.
All my experience around ponytails has been
with younger whales that have not been exposed to
10
ponytails.
11
after 19 years of not reacting to ponytails was
12
13
14
15
16
17
Q.
So, yes, sure, I would assume that Tilikum
Realizing that whales sometimes pull on
things as you have testified earlier?

A.
Tilikum in 19 years has never shown us that
he pulled on anything.
Q.
But, though the whales have shown you no
18
behavioral repertoire, you testified at the start of
19
today's testimony, that they do sometimes put things in
20
their mouth and pull it, right?
21
A.
Yes.
22
Q.
And, so you put Tilikum in his own little
23
box, if you will, and were not willing to generalize
24
that he might engage in pulling behavior?
25
A.
Tilikum never exhibited any behavior that
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would make me think he would pull.
Q.
But you knew he was capable of pulling?
A.
I know you are capable of rape.
JUDGE WELSCH:
BY MR. BLACK:
Q.
We'll strike that comment.
As we finish up here, Sea World has on a
number of occasions pulled their trainers from the
water, as we've discussed, after an incident or injury?
A.
Yes.
10
Q.
And, each time at least up until this
11
incident with Dawn Brancheau, Sea World has concluded
12
that it's safe so return to the water?
13
A.
Yes.
14
Q.
And, each time Sea World has concluded that
15
it has fixed the problem or the cause of the last
16
incident?
17
A.
I think we conclude that we address and we
18
assess, we examine, we do a thorough behavioral
19
investigation, we do a thorough emergency response
20
investigation, and then based on everything we gather,
21
we have moved forward, yes, in the past.
22
Q.
So, is that a more nuance way of saying that
23
Sea World concluded that it fixed the problem that was
24
involved or caused the last incident?
25
A.
We don't use your words there.
CARLIN ASSOCIATES
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Q.
So, you don't like -- my words mean something
different to you?
"assess, look at, resolve"?
4
5
6
A.
When I say "fix" the problem, you say
Address the problem.
I'm more than happy to
say that we have addressed the situation.

Q.
And, concluded that Sea World has eliminated
the hazard that was involved in the incident.
accept that?
9
10
11
A.
Hazard?
Would you
Can you give me specific examples of
what you're talking about?

Q.
Well, eliminated, for example, if a whale
12
pulls on a trainer's sweatshirt and pulls them into the
13
pool, the conclusion is that we have eliminated the
14
hazard by wearing wet suits?
15
A.
I'm going to have to have a different example
16
because you are talking about when we stopped in-water
17
interaction and no water interaction was ceased as a
18
result of that incident.
19
Q.
So, each time Sea World engages in another
20
interaction with a whale after it has had an incident or
21
injury, Sea World concludes that it has addressed the
22
situation that caused the last incident.
23
accurate?
24
25
A.
Is that
Are you still talking around when we remove
people from the water?
You're just being so general.
CARLIN ASSOCIATES
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Q.
I just backed up because you didn't like my
example because you said it didn't involve a situation
of being in the water.
A.
Right, so in situations where we have pulled
back and we don't get into the water after an
assessment, on occasions when we have gone back into the
water, it is after a behavioral assessment of the
situation.
9
10
Q.
And, the behavioral assessment is that the
risk of another incident or injury has been addressed?
11
A.
Yes.
12
Q.
And, that's Sea World's own internal
13
determination.
14
determines and decides?
That's something Sea World on its own
15
A.
No, not this time.
16
Q.
Well, okay, let's not talk about this time.
17
Up until prior to Ms. Brancheau's death?
18
A.
Yes.
19
Q.
And, Sea World made these internal
20
determinations without bringing in any outside safety
21
consultant?
22
23
24
25
A.
was 1987.
Q.
I'm not privy to that.
The first time around
I'm sorry, I can't testify to that.

And, so in concluding that Sea World has
addressed the situation that caused the incident and
CARLIN ASSOCIATES
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1569
that caused Sea World to take the trainers out of the
water, at least until 19 months ago, Sea World made a
decision each time to get back in the water?
A.
Yes.
Q.
And, after getting back in the water each
time, there's been another incident or injury?
A.
MR. BLACK:
9
10
Yes.
Thank you,
Ms. Clark.
JUDGE WELSCH:
Ms. Flaherty Clark, I don't know
11
if we have covered this and I apologize if it's been
12
covered before, but I just want to make sure it's in the
13
record.
14
in terms of, do you know how long she had been employed
15
by Sea World?
What I'm talking about is about Ms. Brancheau
16
THE WITNESS:
About 15 years.
17
JUDGE WELSCH:
Were you there -- was she always
18
employed at Sea World or Orlando?
19
THE WITNESS:
Yes, she was.
20
JUDGE WELSCH:
Do you know what her education or
21
22
experience level was prior to the time of her hiring?

THE WITNESS:
I shouldn't be the one to talk to
23
you about that.
I mean, I know Dawn, but I wouldn't be
24
able to tell you where or when she graduated or things
25
like that.
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1
2
3
JUDGE WELSCH:
Do you know if her whole time at
Sea World of Orlando she had worked in Shamu Stadium?

THE WITNESS:
She spent a very brief period at
Sea Lion and Otter Stadium, and then probably spent
about 13 or 14 years at Shamu Stadium.
JUDGE WELSCH:
Do you know whether or not she
was hired in as an associate trainer?
out at the early stages or did she --
THE WITNESS:
Was she starting
She had started at the early
10
stages, but she did come to us with previous experience.
11
She had worked with animals in other facilities.
12
13
JUDGE WELSCH:
And, then, she progressed through
all those stages up to supervisor?
14
THE WITNESS:
Yes, she did.
15
JUDGE WELSCH:
Do you know how long she had been
16
17
a supervisor?
THE WITNESS:
I want to say four years.
She
18
had be in a supervisory role longer than that.
19
a salaried supervisor for, I want to say, four years.
20
JUDGE WELSCH:
She was
And, she was holding the same
21
position as Ms. Mairot?
22
THE WITNESS:
Ms. Mairot, yes.
23
JUDGE WELSCH:
Was Ms. Mairot a supervisor at
24
25
the same time?

THE WITNESS:
She was a supervisor longer than
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Dawn was.
Jenny was.
3
4
Dawn was promoted into the position after

There were two supervisors.
JUDGE WELSCH:
So, in 2010 there were two
supervisors at the Shamu Stadium?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Presently, there's just the one
7
8
9
supervisor?
THE WITNESS:
There's the same number of
management personnel.
There's different titles.
10
JUDGE WELSCH:
I understand, thank you.
11
The other thing, I want to switch to the incident
12
reports.
13
incident reports, but I will assure you, despite what
14
Mr. Black has indicated, I do intend to read all of the
15
incident reports.
16
exhibit before I make a decision.
17
will be reading all the incident reports.
18
I don't want to spend a lot of time on the
That is my practice.
I read every
So, rest assured, I
But, with regard to the incident reports, if an
19
incident -- you have already described earlier that
20
incident reports are only in what are viewed as whales'
21
aggressive behavior.
22
an injury to a trainer, it doesn't make any difference
23
if there's some aggressive behavior by the whale, that
24
generally ends up in a report.
25
THE WITNESS:
Whether or not it actually ends in
Right, even behavior we assume --
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you know, we assume some behavior is aggressive so that
we can write it up and communicate it.
JUDGE WELSCH:
And the ultimate decision to put
it into an incident report, is that your decision as
curator or is it above you or somebody below in terms of
actually making a decision as to whether or not an
incident report --
THE WITNESS:
9
10
It actually begins with the
management at the stadium.
I would say from the hourly
supervisors up.
11
JUDGE WELSCH:
Well, they may generate it --
12
THE WITNESS:
If one of my hourly supervisors
13
says, "I think this event is something worthy of
14
creating an incident report around it," an incident
15
report would be created around it.
16
JUDGE WELSCH:
Then, would that incident report
17
be written by you as curator, or would it be written by
18
the person that it happened to or the supervisor?
19
THE WITNESS:
It begins with the two people
20
that are closest to the event, the trainer that is
21
involved and the spotter.
22
series of events, the sequence of events.
23
what happens before and after.
24
who was around the pool who has information to add.
25
That report gets submitted to their assistant
The two of them write up the
CARLIN ASSOCIATES
They write up
They talk with everybody
(216) 226-8157
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curator of the stadium.
supervisors will weigh in, make sure that it's a
complete report, it gets submitted to the assistant
curator at the stadium who reviews it and then gives it
to me.
The supervisor, assistant
I write the originating park curator comments, and
then I would send it out, and I'm actually speaking
hypothetically here because we have not had an incident
in my tenure.
10
JUDGE WELSCH:
Now, I want to go to the other
11
aspect in terms of the distribution of the incident
12
reports.
13
THE WITNESS:
Okay.
14
JUDGE WELSCH:
I know that all the parks are
15
different, but I guess in terms of I think it was Ms.
16
Mairot, I was not clear as to whether or not all
17
trainers actually review all incident reports, even
18
those incident reports that arrive or are generated by
19
other parks, like San Diego, because I had the sense
20
when I was listening to her testimony that she was
21
familiar with all the incident reports that might have
22
been at Sea World of Orlando, but I wasn't clear that
23
she particularly had read or had reviewed all of the
24
incident reports from other parks.
25
I'm trying to understand as to what, if any,
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requirements -- and I understand you don't have any
current incident reports -- but what, if any,
requirements did you have back in 2010 or before 2010 in
terms of the distribution of those incident reports
within the trainers of Orlando?
THE WITNESS:
There was a lot of discussion
around them, and as the incident reports would come into
the park, they would spend time -- if they're from
another park, they would spend time in our area, and be
10
11
reviewed by management with all of the trainers.

If it involved an animal in the park that the
12
trainers are working with each and every day, it would
13
be maintained in the area, but if it involved an animal
14
in another park and we're learning from this situation,
15
we're putting our comments in, we would review it and
16
we've had several -- I mean, I can think of times when
17
we all sat down and reviewed incidents from San Diego
18
Park, and then that incident report would be the report
19
itself, the document itself, would be in the area for a
20
period of time, and then Chuck Tomkins would file it and
21
keep it.
22
So, everybody was exposed to it, but if it wasn't
23
an incident report involving the animals in the area
24
that you're working with, they would be filed.
25
JUDGE WELSCH:
Let me ask you in terms of the
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conclusions in the incident reports, let's say, it arose
in San Diego, and I think Mr. Black was talking about it
-- and I don't want to get into desensitization -- but
talking about the incident, I guess, about the hair, if
San Diego concluded that instead of doing
desensitization, they concluded that they were going to
go to buns instead of ponytails, is that something all
the parks would have to do?
along with the same thing, or would you as Orlando Park,
Would all the parks go
10
make your own decision for the trainers at the park as
11
to what corrective measures you're going to take?
12
THE WITNESS:
No, Your Honor, there are times
13
when there are different corrective measures taken in
14
different parks, or if somebody in San Diego would wear
15
different equipment than Sea World of Florida.
16
if San Diego decided we are putting our hair in buns as
17
a result of this incident, that did not mean that Sea
18
World of Florida would put their hair in buns.
19
20
JUDGE WELSCH:
So, no,
Let's use the example from the
sweatshirt situation.
21
THE WITNESS:
Right.
22
JUDGE WELSCH:
You in Orlando decided to use the
23
24
25
wet suit.
THE WITNESS:
example.
That's actually a really good
We went to the wet suit and Sea World San
CARLIN ASSOCIATES
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Diego did not.
JUDGE WELSCH:
They did not.
THE WITNESS:
That's actually a really good
example.
JUDGE WELSCH:
Are there any examples that you
can give me where all three parks were required to take
some measures?
8
9
THE WITNESS:
is this one.
Sure.
I think the best example
Immediately following the events around
10
February 24th, immediately following those events, I had
11
a meeting with myself, Brad Andrews and Jim Atchison,
12
Brad Andrews being the corporate zoo -- whatever his
13
title is -- and the three of us met, and there was a
14
discussion around we will take a big step back and
15
nobody will enter the water.
16
So, all the other curators were called into the
17
conversation, and everybody agreed this is the right
18
thing to do in this situation, and we all are following
19
that protocol.
20
JUDGE WELSCH:
21
Ms. Gunnin?
22
MS. GUNNIN:
23
Judge, I do have some Redirect.
Perhaps it would be better to take our lunch break now.
24
25
Thank you.
JUDGE WELSCH:
1:00.
We're adjourned for lunch.
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1
2
Thank you.
---o0o---
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Afternoon Session
1:00 p.m.
JUDGE WELSCH:
Ms. Flaherty Clark, I'll remind you you're still
6
7
under oath.
I just have at least one question.
This is just
for clarification.
When you and Mr. Black were talking
about, I know you don't really know all the corporate
10
structure, but when you're talking about SEA, the parent
11
company, is that the same thing as Sea World Parks and
12
Entertainment?
13
THE WITNESS:
Yes, sir.
14
JUDGE WELSCH:
That's SEA?
15
THE WITNESS:
Yes.
16
JUDGE WELSCH:
That's just what you call it?
17
THE WITNESS:
I think that's just letters.
18
19
20
It's SEA, Sea World Parks and Entertainment.

JUDGE WELSCH:
Okay, I just wanted to make sure
that's one and the same entity.
21
THE WITNESS:
Yes.
22
JUDGE WELSCH:
I've been debating about whether
23
24
25
or not to ask this question, but let me just ask.

THE WITNESS:
Can I debate about whether or not
to answer it?
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1
2
JUDGE WELSCH:
Let me ask just a general
question, but I want to get your opinion.
THE WITNESS:
Sure.
JUDGE WELSCH:
I think I asked a similar
question probably the last time you testified, but I
want to make sure I have a clear understanding.
I'm trying to get a sense from you in terms of the
water work.
How important is the water work to Sea
World of Orlando in terms of the shows, the performances
10
during the shows?
11
important component, or is it just something you do?
12
I'm trying to get a sense of the merits, as you will, as
13
to is that or is that not necessarily an important
14
component of the Sea World shows at the Orlando park?
15
Do you understand?
16
THE WITNESS:
17
18
Is it an important factor, is it an
Is that too general a question?

It is an important component of
the shows.
JUDGE WELSCH:
Can you tell me as best you can
19
as to why you consider it an important component of the
20
shows?
21
THE WITNESS:
It is the closest contact that
22
we have with the animals.
23
affective?
24
25
It is effective and
I guess it was too general.
Are you asking me for
the business reason, for the entertainment educational
CARLIN ASSOCIATES
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value of our shows or are you asking --
2
3
JUDGE WELSCH:
Well, let's break it down.
Do
you know if there's a business reason?
THE WITNESS:
It's not really my expertise, but
I can tell you how an audience is affected by a show or
not.
JUDGE WELSCH:
That's more the entertainment.
THE WITNESS:
Right.
JUDGE WELSCH:
Why is it important for the
10
11
entertainment value?
THE WITNESS:
Why is it?
It's effective.
You
12
gain perspective.
13
perspective.
14
10,000 pounds in the water environment.
15
impactful.
16
a show where the trainers are not in the water with the
17
whales.
18
entertained?
19
As an audience member, you gain
You see 100 pounds interacting with 6- to

It is very
It has a much different effect than watching
Are both shows an opportunity to be

Yes.
JUDGE WELSCH:
The last time, I think, if I
20
remember your testimony, you talked about the water work
21
and you talked in terms of the importance in terms of
22
the husbandry, and I think you gave an example of the
23
whale that ultimately died, I guess.
24
25
THE WITNESS:
holistic.
Right, and that would be my
That's why my first thing is absolutely, it's
CARLIN ASSOCIATES
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1581
very important to Sea World as a business because it is
one of the ways that we stimulate and maintain the
health of our animals.
to the show, the water is important to us.
JUDGE WELSCH:
So, as the animals are important
What about, you talked about the
education.
the shows important to the educational value, or do you?
8
9
Why would you consider the water work during
THE WITNESS:
why.
I do but I -- I do and here's
People are affected by watching -- I mean, I can
10
tell you this from my own experience, when you watch a
11
trainer interact in the way that we do with our killer
12
whales, you are affected.
13
people who experienced that and are not affected, not
14
about the trainer as much as the reinforcement history
15
that allows the trainers and the whales to interact the
16
way they do.
17
I have come across very few
They see killer whales interacting with human
18
beings in a watery environment and they are affected.
19
believe -- and this is my opinion -- that they are
20
affected to the point that that changes them.
21
opinion, and I have volumes of letters and cards.
22
as much media attention that this event has promoted,
23
I've gotten a lot of letters and cards by people who
24
were affected by what we do.
25
equating that with being educated.
CARLIN ASSOCIATES
It's my
And,
They're affected and I'm

Now, I'm not saying
(216) 226-8157
1582
you're changed as a person.
So you're inspired, perhaps you're going to learn
more, perhaps you're going to have other experiences in
the park that you're going to look at a little
differently.
that you have an opportunity to be educated about killer
whales on it.
affected me to the point where I'm going to read about
them."
10
11
You're not just going to walk by a display
You're now going to say, "Wow, that
So, yes, I think our in-water interactions has a
different impact.
JUDGE WELSCH:
Would you say whether or not if
12
you're just limited to dry work, would you be able to
13
accomplish the same objectives in terms of either the
14
entertainment value or the educational value?
15
THE WITNESS:
Our definition of dry work?
16
JUDGE WELSCH:
Yes, ma'am.
17
THE WITNESS:
It would not be as effective.
18
JUDGE WELSCH:
In both aspects, educational as
19
20
well as entertainment or -THE WITNESS:
I think in both aspects because
21
you're not going to affect the people the same way.
22
have shows when we were performing in-water interaction
23
with the animals prior to February 24th, we would have a
24
show a week, sometimes two shows in a week, sometimes
25
one show in a month that the trainers made the decision,
CARLIN ASSOCIATES
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We
1583
based on whatever the environment was, to go dry with
the show.
of the show; the audience had.
feel that the audience has not been as impacted by that
experience as they could have been.
And, you had a different feeling at the end

As a trainer, you can
I'm giving you my opinion as best I can.
JUDGE WELSCH:
That's what I'm asking.
I'm
trying to get an understanding of the importance or
relative importance of dry work, water work, how it
10
affects Sea World as a company, how it affects the
11
trainers as individuals.
12
Do you view the role of your trainers as
13
entertainers, or do you view your role or view the role
14
of a trainer as someone who is caring for the animals;
15
animal caretaker?
16
THE WITNESS:
They are both.
17
JUDGE WELSCH:
Is there one that's of primary
18
19
20
21
22
importance?
THE WITNESS:
Yes, animal caretaker.
Animal
trainer comes -JUDGE WELSCH:
And, the entertainment is
secondary in terms of the trainers?
23
THE WITNESS:
Yes.
24
JUDGE WELSCH:
Thank you.
25
MR. BLACK:
Judge, could we have a brief
CARLIN ASSOCIATES
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side bar.
not--
You raised something that I would rather
JUDGE WELSCH:
With me?
MR. BLACK:
Yes.
(Whereupon, a short bench discussion
JUDGE WELSCH:
Ms. Flaherty Clark, I'll remind you you're still
under oath.
10
THE WITNESS:
Okay.
11
JUDGE WELSCH:
Mr. Black?
12
MR. BLACK:
13
Just for the record to preserve the record, we
14
want to make an objection to all the questions the Court
15
asked Ms. Clark just now.
16
any legal issue that the Court needs to decide,
17
particularly as it goes to things such as the
18
entertainment value, and the educational value, and the
19
impactfulness of dry work shows and the like.
20
21
22
We don't believe that goes to
So, just for the record, I wanted to note our

objection.
JUDGE WELSCH:
It's so noted in the record, and
23
it's overruled as you can expect.
24
Okay, now, Ms. Gunnin?
25
MS. GUNNIN:
Yes, Your Honor.
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---o0o---
BY MS. GUNNIN:
Q.
We have just a few questions to follow up
with, and you're going to be released for the rest of
the trial.
A.
Okay.
Q.
Ms. Flaherty Clark, you were questoined by
Mr. Black about media coverage.
And, I think the
10
implication was certainly that with big media coverage,
11
that impacts --
12
MR. BLACK:
13
MS. GUNNIN:
I'm stating a foundation for the
14
questions.
15
MR. BLACK:
Well, that's not a foundation to
16
talk about what the implication was.
17
appropriate drawing of the witness to the testimony to
18
say.
19
JUDGE WELSCH:
20
BY MS. GUNNIN:
21
Q.
Overruled.
That's not an
Go ahead.
You were being questioned about media
22
coverage with regard to how that affected Sea World's
23
response to issues.
24
25
Are you aware of any other incident where

there has been lots of media coverage of an event, and
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no changes were made in any kind of protocols or
procedures?
A.
Yes, I am.
Q.
What would that have been?
A.
Steve Able had a situation at Sea World of
Texas that got a lot of media coverage, and I talked
with him about having met several celebrities while he
did this interview.
a lot of attention.
10
11
12
13
So, it got a lot of media coverage,
After reviewing his incident report, we

didn't make make protocol changes.
Q.
And, that is, in fact, an incident report
that's in Exhibit C-6?
14
A.
Yes, it is.
15
Q.
Drawing your attention the questions about
16
the post John Sillick incident, and you were asked about
17
the BRC?
18
A.
Yes.
19
Q.
What is the purpose of the BRC?
20
A.
When we reviewed the event -- I shouldn't say
21
"we," when Sea World reviewed the event -- one of the
22
discoveries was that there wasn't organization around
23
the show, and there were also behaviors being performed
24
that were incompatible with other behaviors and people
25
being in the water.
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So that we could make sure that there were
more guidelines around which behaviors were okay to
perform, when we had gathered all of the most
experienced experts in the field, all of which are at
Sea Worlds around the country, and they all weighed in
and decided at the end of the day, some of the behaviors
that had been linked with some similar events or
injuries where a killer was jumping over another person
were eliminated from our repertoire.
10
Q.
You were also asked about the bars, and I
11
think there's been some testimony by Ms. Mairot, by Mr.
12
Scarpuzzi, but there has never been a description of
13
those bars.
14
those bars we're talking about?
Can you describe for the Judge what are
15
A.
Physically describe?
16
Q.
Yes, a physical description.
17
A.
Okay.
They are, what, three feet long to
18
about an inch and an a half in diameter.
19
out of aluminum, and they're curved at two ends.
20
the two ends can be placed into previously-drilled holes
21
that are along flat surfaces of our environment.
22
They're made
And,
So, we can put a bar in and take it out.
23
would say they weigh about four pounds maybe.
They're
24
made of aluminum.
25
further into it, what they really are is a first attempt
And, what they really are -- to get
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of a thought maybe that came, "Let's see what we can do,
if we can do interactions with the killer whales with a
barrier, a removable barrier."
They were designed by our engineering team.
When we placed them in the pool and we started -- first,
we had to desensitize the animals to them.
We as trainers on the ground, okay, myself included, but
people interacting even more often, realized quickly
that they just aren't effective, they're not good.
We did so.
They
10
actually create more of a hazard.
11
hazard with us carrying them around, and then they
12
create this tripping hazard, and the worst part for us
13
was that the whales themselves, especially the young
14
ones, they slide up underneath the bars.
15
They create more of a
So, I know we heard testimony from Mike
16
Scarpuzzi, and I speculate that he was too far removed
17
to know where we are with the bars now because he said
18
you put them in if you want to touch the animals; you
19
take them out if you don't.
20
all, not at Sea World of Florida.
21
22
JUDGE WELSCH:
That's not where we are at
Let's finish your description of
the bars.
23
THE WITNESS:
Sure.
24
JUDGE WELSCH:
You said it's about three feet,
25
you said, long but it's probably wide.
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THE WITNESS:
Wide.
JUDGE WELSCH:
And, how high is it?
THE WITNESS:
It's a tube and when you put it
into the ground, I'm going to say 14 inches, and I'm
guessing.
about midshin; 12 to 14 inches.
7
8
9
It's between 12 and 15 inches.
JUDGE WELSCH:
I guess what I asking you is, is
it a series of bars?
THE WITNESS:
No, it is not.
10
JUDGE WELSCH:
It's just one bar?
11
THE WITNESS:
It's one bar.
12
13
14
15
16
It hits me
It's a curved
piece of metal.
JUDGE WELSCH:
So, it's one bar that comes up
about 14 inches above the deck?

THE WITNESS:
Right, and I can move it to
different holes.
17
JUDGE WELSCH:
You said it weighs about?
18
THE WITNESS:
Four pounds, I'm thinking.
19
I'm
basing it on the fish buckets.
20
JUDGE WELSCH:
Okay, thank you.
21
THE WITNESS:
We use them now -- and I think
22
Jenny said this -- we use them right now.
23
maintaining their desensitization, and we use them,
24
basically, to keep conditioning the younger whales not
25
to slide up on them or underneath them, and they are in
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We are just
1590
no way, shape or form a successful barrier of any kind.
They're made of aluminum.
and it will bend.
BY MS. GUNNIN:
Q.
The whales could lean on it
And you were also asked about the Shana
Groves incident involving the whale named Ikaika.
A.
Ikaika, yes.
Q.
If you could tell the Judge where did he --
9
10
where did that whale get moved to?

A.
Ikaika was born at Sea World of Florida.
He
11
was one of our calves that was born here, and when he
12
was about three and a half years old, he was transferred
13
to Marine Land, Canada, on a breeding loan.
14
No trainers went with him.
We didn't have
15
trainers on the grounds with him.
16
check on him on occasion, but that was a loan situation.
17
So, interestingly enough, just this past Saturday, he
18
rejoined our Sea World pod in Sea World San Diego.
19
he's now back with us.
20
21
Q.
We had people go and
So
But, he left in 2006.
Were there any trainers from Sea World that
assisted with the Marine Land training program?
22
A.
23
MS. GUNNIN:
24
JUDGE WELSCH:
Thank you.
25
No, there was not.
I think you're
excused.
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1591
(Witness Excused)
JUDGE WELSCH:
Ms. Gunnin?
MS. GUNNIN:
Yes, Your Honor.
JUDGE WELSCH:
Do you wish to call your next
5
6
7
witness?
MS. GUNNIN:
Yes, Your Honor.
We call Jeffrey
Andrews.
---o0o---
JEFFREY R. M. ANDREWS,
10
11
12
JUDGE WELSCH:
Sir, for
13
the record, would you state your full name, spell your
14
last name and state your address, please?
15
THE WITNESS:
Yes, Jeffrey Ross Martin Andrews.
16
A-n-d-r-e-w-s, and my address is 15500 San Pasqual
17
Valley Road, Escondido, California 92027.
18
JUDGE WELSCH:
Let the record reflect that the
19
Secretary has filed a motion to exclude Mr. Andrews'
20
testimony, and I think he's going to be proffered as an
21
expert in this case?
22
MS. GUNNIN:
Yes Your Honor.
23
JUDGE WELSCH:
And, as I think I indicated
24
earlier, I am reserving, I'm not ruling on this motion
25
at this juncture.
It goes to whether or not he should
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be qualified as an expert, and that's what I will be
dealing with.
And, you understand, Ms. Gunnin, you need to set
your basic questions, your background information, get
the experience, all those questions.
I ask you not to get into opinion testimony, but
anything he needs to help his opinion, and then at that
point, make a proffer of him as an expert in what areas
you're asking for me to consider him as an expert in,
10
and then I'll see if the Secretary needs a voir dire or
11
not, and at that point, I'll decide on the Secretary's
12
motion.
13
Okay, thank you.
14
---o0o---
15
DIRECT EXAMINATION
16
BY MS. GUNNIN:
17
Q.
Mr. Andrews, where do you work?
18
A.
Currently, I work at the San Diego Zoo in the
19
20
21
22
23
24
25
San Diego Safari Park in San Diego County, California.

Q.
And, Mr. Andrews, what is your job position
at the San Diego Zoo?

A.
My official title is the associate curator of
mammals at the San Diego Zoo.

Q.
What does that mean to be an associate
curator of mammals?
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A.
What that means is a curator is a person who
manages a collection of something, and I would manage a
collection of mammals, but most specifically, I'm a
behavior expert who spends most of his time dealing with
elephants.
6
7
Q.
position that you also manage?
8
9
Are there any other mammals in your current
A.
Yes.
Besides being mostly responsible for
the elephants at both the San Diego Zoo and Safari Park,
10
I spend a fair amount of my time dealing with the bear
11
collection at the San Diego Zoo.
12
13
Q.
And, do you consult at times with any other
zoological institutions?
14
A.
15
company.
16
few internationally.
17
other zoos I either work at currently or in the recent
18
past.
19
20
21
Q.
I do on behalf of myself and my zoo, my

I consult for zoos all over the States, even a
So, let's call it more than ten
Could you name some of the zoos that you do
consulting work for?

A.
Sure.
Currently, that would be or in the
22
recent past, the Lincoln Park Zoo, the Baton Rouge Zoo,
23
the Reed Park Zoo, Fresno Chafee Zoo, Busch Gardens in
24
Tampa, the Los Angeles Zoo, the National Zoo of Chili
25
and I might be missing a couple.
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Q.
And what does that consulting work entail?
A.
Typically, I am offered up or hired out to
help zoos with behavior management issues.
specialty is is in the field of animal behavior, whether
that is in the assessment of the natural behavior of the
animals or in the modification of behavior to better
manage the husbandry and exhibition of these animals.
8
9
So, what my
So, what that means is I go to these zoos at

their request in order to give them assistance and
10
advice on how to, say, better manage their cat
11
collection or how to better manage their large exotic
12
cat collection or their bears or perhaps their elephants
13
or their sea lions or whatever it might be.
14
15
16
Q.
And, prior to your current position, what
other positions have you held?

A.
Prior to being the associate curator of
17
mammals, I was an animal care manager at the San Diego
18
Zoo Safari Park for, I believe, seven or eight years,
19
and prior to that, I was an assistant curator at Sea
20
World in San Diego for several years which culminated in
21
a total career in Sea World in San Diego of
22
approximately 15, nearly 16 years.
23
24
25
Q.
And, if you could, walk the Judge through the
career that you had at Sea World San Diego?

A.
I started there in the summer of 1985 in the
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education department while I was still in college.
Within a few months, I took a job with the animal
behavior department which was later renamed the animal
training department, and in those next 15-plus years, I
went through the career ladder at Sea World, starting as
-- and I can't remember exactly what the positions were
called back then, but I started off as what's called an
apprentice trainer or an associate trainer, went through
the various stages of hourly ranks until I made it into
10
the management ranks which back then was, I believe, an
11
assistant supervisor, then a supervisor, and then for a
12
long period of time, I was the associate curator where I
13
spent most of my time managing the killer whale
14
collection at Sea World of San Diego, and that included
15
transporting killer whales internationally and to other
16
Sea World Parks.
17
the other parks as well.
18
Q.
So, I spent a fair amount of time in
And, what was the time frame of when you
19
began your career at Sea World and when you left your
20
career at Sea World?
21
22
A.
I started in 1985, the summer of `85, and I
left in about mid-May of 2001.
23
Q.
24
JUDGE WELSCH:
25
And after you left Sea World -Excuse me, before you leave
that, when you were working -- you may have testified to
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this, but I didn't hear it, so I need to ask the
question again to make sure.
THE WITNESS:
Okay.
JUDGE WELSCH:
When you were working as an
assistant trainer and up through the ranks, was that
with the killer whale stadium or was that other parts of
the Sea World Park?
8
9
THE WITNESS:
stadium.
It was mostly at the killer whale
I would say, all tolled, because I did go back
10
and forth to other areas at Sea World while I was there.
11
However, the total time spent in areas outside of the
12
Shamu Stadium was minimum.
13
was probably only three years.
14
I would say, all tolled, it
So, I started at Shamu for about six months or so,
15
and then about six months with dolphins, and then back
16
to killer whales for about two years, then back to
17
dolphins for about a year or so, and then back to killer
18
whales for the rest of my time at Sea World.
19
JUDGE WELSCH:
But, when you became an
20
assistant curator, you're weren't really directly
21
responsible for the killer whales?
22
THE WITNESS:
I was.
23
JUDGE WELSCH:
You were responsible?
24
THE WITNESS:
Yes.
25
JUDGE WELSCH:
Okay, thank you.
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Go ahead.
BY MS. GUNNIN:
Q.
And, after you left Sea World, where did you
A.
Initially, to the San Diego Zoo Safari Park.
4
5
6
7
go?
Back then, we called it the Wild Animal Park.

Q.
And, in terms of your educational background,
if you could tell the Judge what further education do
you have past high school?
10
A.
Past high school, I have a bachelor's degree
11
from San Diego State in the field of social science, and
12
I have a Masters Degree from George Mason University in
13
Fairfax, Virginia, in the field of exotic animal
14
collection management.
15
Q.
And, what does that degree mean?
16
A.
17
What that means is that people in that
18
capacity, what I learned to do through that academic
19
program was learn how to manage small populations of
20
animals.
21
like two or three, I mean small compared to out in the
22
natural state.
23
thousands of animals, how to manage them to be
24
sustainable, both genetically and demographically.
25
And, when I say, "small," I don't mean small
So, it could be hundreds if not
So, in other words, in the zoo field, it's
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not a very proprietary field.
field, and so let me walk you through a hypothetical
situation.
It's a more cooperative
It's much more complicated than this, but
let's just pretend there are two zoos in the United
States, and they are a couple hundred miles away from
each other.
polar bears.
polar bears in my zoo, I'm also managing the population
10
11
I would be managing a collection of, say,

So, I'm not managing the collection of
of polar bears in both zoos.

What I want to do is make sure that in the
12
long term, we are managing these bears so that they are
13
sustainable which basically means they are breeding well
14
and properly.
15
But, in this hypothetical situation, one zoo
16
has two male polar bears and one zoo has two female
17
polar bears.
18
your breeding too much.
19
So, intuitively that's not going to help
So, the first order of business would be to
20
negotiate a deal in order to switch a male for a female.
21
That's the simple scenario, but let's say that one
22
female is genetically more appropriately suited to breed
23
with the other male than the other female, if you're
24
following me, so they're more genetically diverse.
25
we would rather the two genetically diverse animals
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breeding with each other than the two genetically
similar animals breeding with each other.
So, you have to know what the mean tenchi is
of these four animals, what their pedigrees are, know
who they're related to, so you can more accurately
choose which the best to breed with the male here
because one pair might be a perfect pair and one pair
might not be a good pair.
Again, it's a hypothetical situation.
And,
10
what might be the best genetic fit might not be the best
11
demographic fit.
12
fit looks on paper, but the female is geriatric and the
13
male is not.
14
she's probably not going to carry a cub to term.
15
would need to take that into account as well.
16
Let's just say that the best genetic
So, it might look good genetically, but

So you
Also, you need to worry about social issues.
17
Let's just say they don't like one another.
18
work that into it.
19
be political issues and transportation issues and, of
20
course, there are more than two zoos with polar bears in
21
the United States.
22
You need to
There are also, of course, going to
And, when, you're dealing with animals, say,
23
like elephants, there are nearly a hundred zoos in the
24
US with elephants, and it becomes a complicated task.
25
So, that is the field that I studied in order
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to advance my career and learn more about what I'm
passionate about.
Q.
And, what in your educational background
would give you any higher level of understanding about
animal behavior?
A.
In my educational background?
Q.
Yes.
A.
In both my undergraduate studies and my
graduate studies, I took a number of courses involved in
10
developmental psychology, standard psychology,
11
evolution, population management, genetics, demography,
12
and all these fields as well as sociology and social
13
science, all these fields teach you about the field of
14
behavioral science.
15
I must say, though, my own personal interest
16
and my academic pursuits on the jobs were actually
17
probably more influential in my learning than some of
18
these degrees that I hold.
19
Q.
And, you have sat through this entire
20
hearing, and you have heard that one of the big issues
21
is the theory of positive reinforcement and operant
22
conditioning.
23
What qualifies you to be able to give any
24
kind of opinion about the use of positive reinforcement,
25
operant conditioning type training techniques with
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animals and specifically killer whales?
A.
Well, not to mention the degrees that I hold
and the courses that I took, but also the 25-plus years
of managing behavior in the exotic animal industry, and
the fact that for the last 15-plus years I've been
teaching that field to various zoos, to my own staffs,
to my staffs at Sea World when I worked there about the
principles and terminology and science behind operant
conditioning, not only in the clinical setting but in
10
the applied setting such as working in a zoo.
11
Do you want me to go on?
12
Q.
13
You're good.
With regard to the science of positive
14
reinforcement, operant conditioning, what is that based
15
upon?
16
about the effectiveness of those training techniques for
17
killer whales?
18
A.
19
broad fields.
20
scientific information and over 100 years of academic
21
scientific pursuit of this field.
22
hand, the vast amount of success that practitioners of
23
operant conditioning in the applied field have.
24
25
What have you relied upon to draw your opinions
I would say it can be categorized into two

One would be the very large volume of
And, on the second
So, when it comes to the academic pursuits

and the scientific validity, I've been a little
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concerned about some of the things I've read offered up
in this hearing about the lack of scientific validity of
behavioral sciences, right?
And, if I may, let me offer up some
background into what merits them as a distinct science
and one that is truly valid.
The field of behavior management has been
around for thousands and thousands of years as animals
have been domesticated for human use.
But, about the
10
turn of the century, things started to become a little
11
more sophisticated and purposely scientific.
12
I think you've probably heard of Ivan Pavlov.
13
Just about everyone has heard of Pavlov's dog nowadays.
14
He more or less started it by developing what we now
15
call classical conditioning.
16
that studied conditioned reflexes, and this gentleman in
17
1901 to 1903 discovered how a reflexive behavior can be
18
conditioned by previously unconditioned stimuli.
19
would be what we call responding conditioning, or what
20
he called classical conditioning.
21
And, he was a physiologist
So, it
He actually won the Nobel Prize for
22
physiology in 1904 based on his work.
23
the field of behavior modification, but at this time,
24
the behavior in question was reflexive behavior.
25
instinctual or innate behavior.
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So, he started
It was
It wasn't what we like
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to call willful behavior or what we call operant
behavior now because willful operates on its
environment.
But, nonetheless, it started way back at the
turn of the previous century with Pavlov's work, but it
didn't stop there.
Thorndike in the Thirties wrote a seminal book called
The Foundation of Behavior:
Behavior, and he described the laws of effect, the laws
After that, a guy named Edward
The Fundamentals of
10
of exercise.
And, again, these things, you know, are
11
behavioral laws, and he taught us how animals learn
12
through readiness, through trial and through experience.
13
The work didn't stop there.
14
information, B. F. Skinner took it even further.
15
of us have heard of B. F. Skinner and what he did.
16
took Thorndike's work, he took Pavlov's work, and
17
applied it to willful behavior.
18
that's reflexive, he is now learning how and describing
19
the mechanisms for increasing the frequency of willful
20
behavior, based on its consequences.
21
consequences can be positive or negative, it can be
22
reinforcers or punishers, but based on the consequences,
23
the probability of these behaviors is going to increase
24
or decrease.
25
Based on that
He
So, instead of behavior
And, the
And, he wrote this all down in several
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scientific publications, again seminal works, and he
called his most famous book, The Behavior of Organisms.
This was in the Thirties and Forties.
And some of his graduate students, most
notably Keller Breland and his wife at the time Marian
Breeland in the Forties and Fifties, like the rest of
us, you know, stand on the shoulders of giants and took
that work even further.
And, they described for us what we now call
10
the bridging stimulus and you've heard about whistles
11
and clickers that people use.
12
that's the bridging stimulus.
13
In scientific terms,
And, Keller Breland devised and described it.
14
He took it even further than that.
15
how differential reinforcement schedules can produce
16
very predictable patterns of behavior, and those
17
patterns of behavior we still in use today.
18
He also described
So, not unlike and not incorrectly as
19
Professor Duffus put in his report that in our field, we
20
do borrow heavily from Skinner's lexicon in our own
21
zoo-based animal behavior principles teachings to not
22
only teach our staffs and our new employees about the
23
history and principles and terminology of how to modify
24
behavior, but we use them to do it in the real world, so
25
we're actually teaching them as we're applying these
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scientific principles and teaching them how to walk the
walk and talk the talk at the same time.
Q.
After you left Sea World and went to the San
Diego Zoo, did you continue to use the theories that you
had learned at Sea World and the scientific principles
behind positive reinforcement and operant conditioning
with animals?
A.
Absolutely.
And, not only did I continue to
use that with a variety of species at the San Diego Zoo
10
and the Safari Park, but also many other zoos as well
11
that I work at as well, but I also did it in such a way
12
that we mentioned that in operant conditioning, you can
13
use punishment to operantly condition an animal, there's
14
often a misnomer out there that people think you're
15
supposed to use positive reinforcement or use operant
16
conditioning, and they are not for some reason.
17
But, those that do use nonpositive trust
18
based training are still using operant conditioning
19
techniques, but what people like myself do and the
20
people at Sea World do is that we rely on trust and
21
positive reinforcement as the basis of our training,
22
right?
23
Any time you use anything other than what the
24
animal finds pleasurable only destroys your trust.
25
That's why you will see people like myself and people at
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Sea World and other colleagues like us that absolutely
refuse to use punishment-based techniques to teach our
animals.
JUDGE WELSCH:
Let me ask, because you phrased
that last question, the operant conditioning that you're
using at San Diego in your capacity as the assistant
curator, the operant conditioning and positive
reinforcement, based on how I understood Ms. Gunnin's
question, is that something that you learned while you
10
were working at Sea World, or is that something that you
11
brought to Sea World as part from your educational
12
background?
Do you understand what what my question is?
13
THE WITNESS:
Yes, sir.
14
JUDGE WELSCH:
Did you learn it and just apply
15
what you took from Sea World and start applying it over
16
at San Diego Zoo, or had you already had this background
17
before and brought it to Sea World, I guess is what I'm
18
asking?
19
THE WITNESS:
Yes.
20
JUDGE WELSCH:
Which way?
21
THE WITNESS:
I'm just trying to be silly.
22
Both, sir.
23
will, in college.
24
at Sea World than I learned in school, right?
25
So, I learned of this technology, if you

But, honestly, I learned more of it
JUDGE WELSCH:
In school you learned the
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principles of operant behavior and positive
reinforcement?
THE WITNESS:
Right, right.
JUDGE WELSCH:
When you went to Sea World, you
saw it being practiced?
THE WITNESS:
And, I learned more about it.
So, in school it was more of a remedial type of
education as opposed to more advanced teachings that I
learned at Sea World.
So, not only did I learn it in
10
college, I also learned even more of it at Sea World,
11
and then I took those same principles with me to other
12
zoos, not that other zoos weren't at times using it
13
themselves before I arrived.
14
BY MS. GUNNIN:
15
Q.
Mr. Andrews, what is the difference between
16
using operant conditioning and the training of an
17
elephant versus a killer whale?
18
A.
There is no difference in the use of positive
19
trust-based operant conditioning with an elephant than
20
the killer whale.
21
22
23
Q.
How about with any other of the large animals
that you work with?

A.
None at all.
It's an amazingly effective
24
technique to train animals and to get predictable
25
results from those animals.
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And, as a behaviorist, you will hear people
like me say behavior is behavior.
you're a domestic dog, you're a child, a sea lion, an
elephant or a killer whale, or a cat, or a shark.
JUDGE WELSCH:
It doesn't matter if
Are you saying that the
principle is the same between a whale and an elephant,
or is the technique the same?
between technique and the principle?
THE WITNESS:
Is there a difference
There might be a slight
10
difference in technique, depending on the species.
11
There may be at times a specimen within a species, but
12
the principle is applied, and the predictable results
13
are equal amongst animals.
14
the same type of predictable results regardless of
15
species.
16
17
JUDGE WELSCH:
They work equally well with
So, if I'm correctly, the
principles remain the same --
18
THE WITNESS:
They do.
19
JUDGE WELSCH:
-- regardless of the species or
20
animal, but the techniques may vary somewhat between
21
what you do with an elephant versus how you handle a
22
killer whale?
23
THE WITNESS:
Slightly, right.
And, that's
24
probably mostly based on the biology of the animal,
25
right?
Is the animal a carnivore or is the animal a
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herbivore, or if it's a social animal versus a solitary
animal.
There maybe some small species.
BY MS. GUNNIN:
Q.
And, how about the difference with a killer
whale being a water-based mammal versus a land-based
mammal?
A.
No difference.
Q.
No difference in the application of operant
conditioning?
10
A.
Correct.
We would expect the principles to
11
be equally effective whether it's a land-based animal or
12
a water-based animal.
13
14
Q.
So, Sea World is not the only zoological or
aquarium that uses operant conditioning?
15
A.
Absolutely not.
16
Q.
And, based upon your experience, what would
17
you say the other institutions are using for training
18
their animals?
19
A.
I would say most institutions that are out
20
there training their animals right now are using operant
21
conditioning.
22
conditioning in one form or another.
23
more and more of them are relying on positive
24
reinforcement trust-based training, and in no small part
25
due to the success and leadership of companies like Sea
I would say all of them are using operant
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And, fortunately,
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1
2
3
4
World.
Q.
And, how about at your own zoo, the San Diego
Zoo, what methodology do you use?

A.
The same one, positive reinforcement,
trust-based operant conditioning with all of our animals
at the zoo, and we have quite a few former Sea World
employees working at my zoo which is a very large
organization with a disparate work group that all are
using the same methodology, and we communicate quite
10
often to make sure that we're using it consistently.
11
12
13
14
Q.
What other organizations, if any, are you a
member of?
A.
I'm a professional fellow of the Association
of Zoos and Aquariums.
15
Q.
16
the AZA?
17
A.
The AZA, yes, ma'am.
18
Q.
What does it mean to be a professional fellow
19
20
Before you go on, is that also referred to as
of the AZA?
A.
That means that you are the highest level of
21
membership in the organization which means that you are,
22
for lack of a better word, allowed to run for office on
23
the Board of Directors and various committees within the
24
organization.
25
I'm also a professional member of the
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1
2
3
4
International Marine Animal Trainers Association.

Q.
Before you go on from there, what is the
International Marine Animals Trainers Association?

A.
It's a very well established, well
functioning organization that has been around for about
40 years now, I'm guessing, give or take, and it's
international in scope, of course, and it's a trade
organization in a sharing of success and principles and
ideas type of organization that holds annual
10
conferences, publishes a quarterly journal, and it's
11
devoted to the advancement of the science and art of
12
using positive reinforcement to better manage the
13
welfare of marine animals in zoological institutions.
14
And, the marine animal part is important because it's
15
not just mammals.
16
focus.
17
18
19
20
Q.
Anything that is marine is their
Any other institutions or associations that
you are member of?

A.
Yes, ma'am.
I'm also a professional member
of the ABMA.
21
Q.
What is that?
22
A.
I'm thinking.
23
The Animal Behavior Management
Alliance.
24
Q.
And, what does that group do?
25
A.
It is almost identical to IMATA, or the
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International Marine Animal Trainers Association; but,
instead, this one is not solely limited to marine
animals but all taxa, taxa meaning a group of animals.
So, like, bears are a taxa, and cats are a taxa or
taxon.
So, this organization does the same type of
work that IMATA does, looking to promote the advancement
of welfare and zoological institutions of its animals,
but not limited to marine animals.
10
So, all taxa,
whether it's bears, giraffes, big cats.
11
Q.
How about any other whales associations?
12
A.
Yes, let's see, I'm also a professional
13
member of the ABA, which is the International
14
Association of Bear Research and Management,
15
specializing in zoo and wild bear research.
16
Q.
What does that organization do?
17
A.
It looks to not only advance the ability to
18
increase the welfare and sustainability of bears in
19
zoological institutions but also how to increase the
20
sustainability and conservation of bears in the wild.
21
22
Q.
How about any other associations or
committees?
23
A.
Yes.
24
Q.
Do you need to refresh your recollection?
25
I wish I had my notes.
you need to, you can look at your CV.
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1613
test.
2
3
4
5
JUDGE WELSCH:
Are you going to introduce the
CV?
MS. GUNNIN:
I'm going to introduce the CV,
Your Honor.
BY MS. GUNNIN:
Q.
the AZA.
representative to the elephant taxon advisory group.
And, the AZA, I sit on several committees in

I am the San Diego Zoo institutional
10
And, again, a taxon is a group of animals, and within
11
the AZA, we have many different committees, and a lot of
12
the committees that I'm interested in and involved in
13
are appropriately on the animal management side of the
14
organization.
15
JUDGE WELSCH:
How do you spell "taxon."
16
THE WITNESS:
T-a-x-o-n.
17
JUDGE WELSCH:
And, that means a group of
18
19
20
21
animals?
THE WITNESS:
A group of animals.
So, in this
sense, it's the elephant taxon.

And, other taxons might be the felidae taxon.
22
Although I'm not a member of the felidae taxon -- I was
23
just going to bring it up as an example -- would be all
24
the cats.
25
group of people who work collectively to promote the
So, the elephant taxon advisory group is a
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conservation and sustainability of elephants within
zoological institutions and strong ties towards the
research and sustainability of elephants in the wild.
And, we provide advice and scientific know-how to
the Board of Directors so they can make more informed
management decisions.
part comes in on the taxon advisory group.
8
9
So, that's where the advisory
I'm also on the ursidae or bear taxon advisory

group.
I'm also the institutional representative to the
10
behavior advisory group or the BAG, as we call it.
11
others are called TAG's, and this one is called a BAG.
12
And, It think that's enough for the AZA.
13
plenty busy.
14
Q.
The
It keeps me
Okay, Mr. Andrews, can you think of any other
15
associations that you are a member of or affiliated with
16
in any way currently?
17
18
19
A.
Am I missing something?
I'll bet I am.
at this moment, I can't think of anything.

Q.
How about publications, papers or
20
presentations that you have given as they relate to
21
marine mammals?
22
But,
A.
Yes, I have numerous publications and
23
presentations over the years, including recently --
24
they might not even be on my CV -- relating specifically
25
to killer whales.
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So, dating back to the late 1990's and early
2000's, I have a couple of publications on the training
of a gray whale, one publication on the artificial
insemination, the very artificial insemination of a
killer whale.
conferences on some of our advanced husbandry
techniques.
one of them.
I did some presentations at IMATA
We won the Behavior of the Year award on
I also just recently, last year, did a
10
presentation at the AZA conference on behalf of IMATA,
11
hoping IMATA increases its awareness to the traditional
12
zoo community about the purpose and history of IMATA as
13
an organization.
14
annual conference a year ago.
15
the fall of 2010, and then I did the same presentation
16
at the annual IMATA conference in December of 2010.
So, I did that presentation at the AZA

So, it would have been in
17
JUDGE WELSCH:
You're saying IMATA?
18
THE WITNESS:
IMATA, which is the
19
International Marine Animal Trainers Association.
20
So, they asked me basically if I would share with
21
AZA -- because I work a lot with AZA and IMATA -- would
22
I share with them how techniques that were pioneered by
23
IMATA and members of IMATA were being successfully used
24
in the traditional zoo terrestrial animal field.
25
BY MS. GUNNIN:
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1
2
Q.
recall?
3
4
Any other papers or presentations you can
A.
Regarding specifically marine mammals?
That's probably it.
Q.
And, in terms of your experience with safety
and working around killer whales, what experience do you
have?
8
9
A.
Well, aside from nearly 15 years of
exclusively working killer whales and managing the
10
killer whales for a number of years at Sea World of San
11
Diego and transporting killer whales, which again it's
12
the day-to-day management of the collection of whales
13
and the staff there that is probably the most important
14
aspect of developing safety programs, again, the
15
hands-on day-to-day work, but oftentimes people put more
16
weight in written documentation and SOP's, and I will
17
acknowledge that they are very important and useful to
18
have, but I don't put as much weight in them.
19
Regardless, I find one-on-one mentoring of staff to be a
20
more effective training tool, but nonetheless I helped
21
develop the safety and SOP protocols for the killer
22
whale program at Shamu Stadium in San Diego in the late
23
'90's and early 2000's.
24
25
So, the bulk of the work was done through

Julie Scardina with her leadership and Mike Scarpuzzi's
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leadership.
of the individual protocols and then, of course, the
dissemination of those manuals and protocols to the
staff and teaching the contents of such.
Nonetheless, I was heavily in the drafting
Furthermore, I have used those same templates
to develop the protocols for the elephant programs at
the San Diego Zoo and the San Diego Zoo Safari Park.
Again, it was mostly a template, but it was such a fine
document at that time, that I used it, expanded on what
10
was already a good thing and developed four very large
11
safety and standard operating procedure manuals for San
12
Diego Zoo and the San Diego Zoo Safari Park elephant
13
programs.
14
And, each manual is literally this thick
15
(demonstrating).
It's three inches thick.
16
the big binders is just simply and daily operation and
17
SOP's and safety practices with references to another
18
large binder which is all about staff development and
19
mentoring and what the career ladder is for the staff,
20
which also references another large binder which is the
21
animal training and environmental enrichment program,
22
which also references to another folder which is all
23
about the research and significant publications that are
24
relevant to the management, sustainability and
25
conservation of elephants.
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1618
1
2
So that's four big ole fat manuals for each,

for San Diego Zoo and Wild Animal Park.
Additionally, being intimately involved in so
many different zoos, I have helped several zoos now
develop their own protocols from what were either
completely nonexistent or, you know, a tiny, three-sheet
binder collecting dust on a shelf somewhere to an actual
operational protocol that they would be proud of.
Q.
And, in terms of what you've reviewed in
10
addition, if you could explain to the Judge what did you
11
look at to form an opinion in this case?
12
13
A.
I looked at a lot, Your Honor.

I started with the animal profiles for all
14
the animals at Sea World of Florida which also included
15
medical histories and collection histories, and beyond
16
the animal profiles, I looked at all the standard
17
operating procedures, the monthly logs, the manuals for
18
the animal training department, the manuals for Shamu
19
Stadium specifically, all of the SOP's, I looked at the
20
career ladder manuals for the staff and the staff
21
development information.
22
I also reviewed the AZA accreditation
23
standards, not only in general how they applied to an
24
organization such as Sea World, but specifically how
25
some of the the accreditation standards speak
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specifically in the safety section to killer whales, and
there's a large section specific to marine mammals, and
I also conducted discussions with Chuck Tompkins, I
conducted a site visit in May of 2011 and, of course, I
referenced my own personal knowledge of the program at
Sea World of Florida because I had been familiar with it
for so long, among other things.
Q.
And did you review the incident reports?
A.
Yes, ma'am.
10
Q.
And, did you review the OSHA citation that
11
I'm sorry, I did.
was issued in this case?
12
A.
Yes, ma'am.
13
Q.
And, did you look at Sea World's safety
14
15
record with regard to working with the killer whales?

A.
Yes, ma'am, I did.
I looked at the
16
information that I could discern from the incident
17
reports, and from the number of interactions based on
18
estimates and averages for how many interactions Sea
19
World as a company has conducted with its killer whales
20
between 1988 and February of 2010, as well as
21
information relating specifically to Sea World of
22
Florida between the same time period of 1988 to February
23
2010, and was very pleased with what I found.
24
25
I don't know if you want me to report on that

now or later?
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Q.
No, no, let's keep your opinion.
JUDGE WELSCH:
I do want to ask, she asked the
question in terms of the safety record.
incident reports, were there there any other documents
you looked at that talked about safety records?
6
7
8
THE WITNESS:
Other than the
Well, the standard operating
procedures, right, and the -JUDGE WELSCH:
Well, the standard operating
procedures, if I understand it correctly, are just the
10
procedures that are in place as to how you conduct it.
11
She was asking in terms of the safety records,
12
which I take to mean more accidents or injuries, that
13
kind of stuff.
14
at anything other than the incident reports, assuming
15
that's what she means by safety records?
16
17
18
And, what I was asking was, did you look
THE WITNESS:
No, sir, mostly just those
incident reports.
JUDGE WELSCH:
Now, when you've broadened it, I
19
don't want your answer because that's opinion, but you
20
said you also looked at the overall interactions.
21
what I want to know is, is there some written report
22
somewhere that identifies all the interactions that the
23
trainers have with the whales during that period of time
24
that you're talking about?
25
THE WITNESS:
And,
Not necessarily a document or
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documentation, but verbal discussions with Counsel about
what some of those numbers are, based on estimates from
having a general idea of how often the trainers at Sea
World work the animals per day over a long period of
time.
JUDGE WELSCH:
I think in these records, if I
remember correctly -- and I don't know the number -- but
I believe at least one witness did talk about the number
of interactions during a period of time.
10
MS. GUNNIN:
Yes, Your Honor.
11
JUDGE WELSCH:
Do you recall that testimony?
12
THE WITNESS:
I do.
13
JUDGE WELSCH:
Is that number similar to the one
14
that you were talking about earlier?
15
THE WITNESS:
Yes.
16
JUDGE WELSCH:
Okay.
17
BY MS. GUNNIN:
18
Q.
Mr. Andrews, in forming your opinion -- and I
19
don't want your opinion -- but in forming your opinion
20
about the number of interactions that Sea World trainers
21
have had with killer whales at Florida specifically, and
22
at the three parks, did you understand what that was
23
based upon; what those interaction numbers were based
24
upon?
25
A.
I believe so.
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1
2
Q.
And, what is your understanding of what that
was based upon?
A.
My understanding of what those numbers are
based on and in my own assessment as well is based on
the average number of interactions per killer whale, per
day.
whales in the facility over the course of those years,
multiplied by the number of days in a year, come up with
a rough average of how many interactions probably
10
Multiplying that by the average number of killer
occurred during that period.
11
12
And, I must also assume that it's a very

conservative number; that it's probably larger.
13
MR. BLACK:
Your Honor, objection.
14
JUDGE WELSCH:
Objection sustained at this
15
juncture.
It's a little premature.
16
THE WITNESS:
I think I know what it is.
17
MS. GUNNIN:
Your Honor, we would proffer Mr.
18
Andrews as an expert in the field of animal behavior as
19
it relates to training animals, the use of operant
20
conditioning and positive reinforcement as it relates to
21
training animals, specifically with killer whales, based
22
upon his own actual experience but also as he has
23
progressed in his profession and moved forward and has
24
taken those same principles to the San Diego Zoo.
25
We would also proffer him as an expert on killer
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whale behavior and training specifically, based on his
own experience.
We would proffer him as an expert on how to work
safely with killer whales, since he did at one time work
as the associate curator or assistant curator for the
Shamu Stadium at San Diego.
safety of working around large animals.
exhibits he does have experience working safely around
large animals of all kinds.
10
And, furthermore, the

I think he
And, we would also proffer him as an expert with
11
regard to what would be feasible abatement methods that
12
have been proffered by the Secretary of Labor in this
13
case to work around the killer whales.
14
15
16
JUDGE WELSCH:
Let me make sure I understand.
Let me reiterate to make sure.

You're proffering him as an expert in animal
17
behavior, operant conditioning, positive reinforcement
18
and specifically with regard to killer whales.
19
You're offering him as an expert specifically with
20
behaviors of killer whales and the training of killer
21
whales too.
22
whales.
Third, is working safely around killer
Fourth, is safely working with large animals.
23
MS. GUNNIN:
Yes, Your Honor.
24
JUDGE WELSCH:
And five would be the feasible
25
abatement methods offered by the Secretary in terms of
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working around or with killer whales.
MS. GUNNIN:
Yes, Your Honor.
JUDGE WELSCH:
That fairly summarizes your
proffering of him an expert?
MS. GUNNIN:
Yes, Your Honor.
JUDGE WELSCH:
Does the Secretary wish to do any
voir dire?
MR. BLACK:
We do, Your Honor.
JUDGE WELSCH:
Do you want to start now, or do
10
you want to take our afternoon break?
11
MR. BLACK:
We could take a short break.
12
JUDGE WELSCH:
Let's take our ten-break for the
13
afternoon.
So, let's be back 2:30.
We're adjourned.
14
15
16
(Whereupon, Respondent's Exhibit Number R-6 was
17
marked for identification and entered into the
18
record)
19
JUDGE WELSCH:
Ms.
20
Gunnin, do you have any objection to offering the CV of
21
Mr. Andrews?
22
MS. GUNNIN:
23
as R-6 and I offer it.
24
25
JUDGE WELSCH:
No, Your Honor.
I have it mark
Mr. Black, do you have any
objections to R-6?
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MR. BLACK:
We do not, Your Honor.
JUDGE WELSCH:
objection.
JUDGE WELSCH:
MR. BLACK:
Now, Mr. Black, your witness.

Thank you, Judge.
---o0o---
VOIR DIRE EXAMINATION
10
BY MR. BLACK:
11
Q.
Good afternoon, Mr. Andrews.
12
A.
Mr. Black?
13
Q.
I want to go over some of the areas that Ms.
14
Gunnin asked you questions about on Direct Examination.
15
I want to make sure I didn't misunderstand some things.
16
17
You currently are associate curator of

mammals in San Diego Zoo and Animal Park?
18
A.
Yes, sir.
19
Q.
And, there are no killer whales at the zoo or
20
animal park there, right?
21
A.
That's correct.
22
Q.
None of your current curatorial, if that's
23
the right word, duties involve managing killer whales?
24
A.
Correct.
25
Q.
And, your last work with killer whales was
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when you were at Sea World in 2001?
A.
Yes, sir.
Q.
And, you said that managing a collection of
mammals is what you do as curator, right?
A.
Yes.
Q.
That you consider yourself a behavior expert
as to elephants?
A.
Animals in general.
Q.
I understand but in your current job, I think
10
I heard you say behavior expert as to elephants as a
11
curator.
12
A.
That was one of the areas?

Elephants happens to be probably a third of
13
my overall work.
So, as the associate curator of
14
mammals in San Diego Zoo, I have responsibility over
15
lots of different taxa and species, but due to the vast
16
amount of work associated with our collection of
17
elephants and the research that we conduct, it does tend
18
to dominate my time.
19
Q.
Takes up about a third of your time?
20
A.
I would say so.
21
Q.
And, then, you mentioned something about
22
bears?
23
A.
Correct.
24
Q.
But, no behavioral expertise as a result of
25
your curatorial duties, no behavioral expertise specific
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to whales as a result of being curator?
A.
Currently, at the San Diego Zoo?
your question?
Q.
Well, yes.
Is that
Again, I'm trying to understand.
I thought I heard you say that you consider yourself as
curator to be a behavior expert in elephants.
A.
Yes, sir.
Q.
And, so as a result of your work at the San
9
10
Diego Zoo, that doesn't apply to making you a behavior

expert as to killer whales?
11
A.
Because we don't have have killer whales at
12
and San Diego Zoo doesn't exclude me from still being a
13
behavior expert with killer whales.
14
Q.
But, not based on what you do in San Diego
16
A.
No.
17
Q.
I'm sorry, that was a little awkward there.
15
Zoo?
18
19
And, you said you consult for zoos all around

the state?
20
A.
Yes.
21
Q.
And, you estimate about ten zoos, maybe,
22
around the state at other locations?
23
A.
Correct.
24
Q.
And, what percentage of your time do you
25
spend consulting?
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1
2
3
4
A.
I would say I spend four or five days a month
consulting somewhere.
Q.
And, is that consulting during your normal
work time at San Diego Zoo?
A.
No, sir.
Q.
How much consulting have you provided to
7
8
9
10
11
It's on my own time.
parks that hold or own killer whales?

A.
With the exception of Busch Gardens Tampa,
which would be a technicality, none.

Q.
And, in your consulting, do you help
primarily with the behavior management issues?
12
A.
Yes, typically.
13
Q.
I think you said something about assessments
14
and modifications of behavior to better manage
15
husbandry?
16
A.
Correct and animal welfare in general, yes.
17
Q.
Animal welfare.
18
A.
But, oftentimes, it goes beyond just behavior
19
management issues.
20
care, transport, politics and other topics as well.
21
Q.
It goes into nutrition and animal
Now, you don't hold yourself out as a
22
consultant who consults or provides expertise on the
23
safety or how safe the management of these zoos are?
24
25
A.
Safety is a very large component of every one
of my consultations.
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Q.
So, in doing your consultations, it's
restricted to safety and how you can use animal
behavior, operant conditioning to get the animals to do
what you want?
A.
Correct, to enhance safety.
Q.
So, it doesn't go beyond, for example, into
saying you ought to have -- let's do an assessment and
look at whether you have barriers here, whether you have
distance requirements, whether you have any number of
10
physical limitations to better protect the animal
11
caregivers?
12
13
14
15
16
A.
Depending on the species, I absolutely do,
Q.
And, tell me which species you have expertise
yes.
or hold yourself out as a consultant to do that?

A.
I would say most specifically for the
17
situation that you just described would be for large
18
exotic cats and bears.
19
Q.
And, so on what kinds of things on large
20
exotic cats or bears do you advise that have to do with
21
safety?
22
A.
It depends, of course, on the existing
23
facilities and what the goals of the program are, but it
24
might have to do with the enclosure design, it might
25
have to do with the enclosure design out on the exhibit
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or the enclosure design in the back holding areas that
might be more suitable for training.
do with space issues or staffing issues, but most often,
it has everything to do with improving the behavior or
liability of the animals.
Q.
It might have to
And, in fact, that's the principal means that
all of your expertise deals with in making animal
caregivers safe is through the training of the animals?
A.
That is my personal default due to its being,
10
I feel, the most important component of a safety
11
program, not to say it's limited to that.
12
13
14
Q.
was.
I'm sorry, my hearing is not quite as good it
You said it's your primary -A.
It's my primary focus due to my personal
15
preference and opinion that the effective management of
16
behavior of the animals is the primary component to
17
safety in an animal management program, not to say that
18
it's limited to that, though.
19
There are species that have federal
20
requirements that don't allow you the same type of
21
contact that otherwise you might enjoy; for example, the
22
large cats.
23
24
25
Q.
So, in designing or helping design enclosures
for large cats, for example?

A.
Maybe not designing them but modifying
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1
2
existing enclosures.
Q.
Now, you haven't done any consulting with how
one might modify the enclosures for pools for killer
whales?
5
6
7
8
9
A.
Consulting, no, but personal experience when
I worked at Sea World, yes.

Q.
What portions or what modifications of
facilities did you do while working at Sea World?

A.
Off the top of my head, I would say the
10
development of a lifting floor at the San Diego Sea
11
World Killer Whale Stadium would probably be at the top
12
of my recollection for enhanced safety due to facility
13
modifications.
14
Q.
15
16
What was your role in helping with the
development of the lifting floor?

A.
Assisting with the design of the floor itself
17
and the mechanism for how the floor would mechanically
18
raise to the surface of the water, you know, with a
19
10,000 pound whale on it, and then improvements of that
20
design over the years to come.
21
The first major modification to the floor was
22
to add hydraulics to it, and then later the hydraulics
23
were put on a better actuating system so it would raise
24
and lower with less human effort.
25
Q.
So, you were involved in helping develop this
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lifting floor?
A.
I was.
Q.
But, what was your involvement in determining
4
5
whether or not to have a lifting floor, for example?

A.
I would say prior to us having one, you know,
I was involved in the discussions about whether or not
one would be advisable to have.
8
9
Q.
And, I assume in those discussions, you said
it would be advisable to have?
10
A.
It would be.
11
Q.
Why is that?
12
A.
Mostly for the occurrence of unusual medical
13
emergencies, for example, with a killer whale.
14
first thing we would need to do is make sure that the
15
whale was comfortable swimming into the pool, right?
16
And, that was upon us as trainers to make sure that the
17
animal would go in the pool whenever we asked them to,
18
even when they were sick or injured.
19
lifting floor, the way to access an animal was to drain
20
the water out of the pool.
21
expedited the process of getting our hands on the animal
22
much quicker.
23
Q.
24
25
The
But, without a
By putting the floor in, it
What other physical modifications of Sea
World of California did you help with?

A.
Fortunately, one just came to mind as we were
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talking a second ago, and that was the modification of
the gate latching system to be run on a pneumatic system
to where the gate latches in addition to the gate
actuators themselves, the mechanism that latched the
gate closed and unlatched the gate so it could open, we
modified to have on a pneumatic system so it could be
done remotely.
Q.
9
10
When you say, "we," I take it I'm hearing
engineering degree among your many credentials?

A.
That is right.
The architecture and
11
engineering department, but, primarily, it was a private
12
vendor who actually installed the system.
13
JUDGE WELSCH:
14
between the pools?
15
THE WITNESS:
I'm assuming these are the gates
Right.
The gates themselves
16
already existed, but the gate being closed doesn't
17
necessarily mean that the pool is secure.
18
are very strong and can push the gate open, right?
19
They're stronger than the hydraulic actuators are.
20
by installing latches, it keeps the gate either latched
21
closed or latched open by adding these pneumatic
22
systems.
23
The whales
So
We wouldn't have to actually physically walk over
24
to the gate manually, unlatch the gate, then
25
hydraulically open the gate.
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the gates from a variety of locations around the pool.
So, did I actually install the system?
not.
in-house.
No, I did
We had a private vendor do it, but we designed it
BY MR. BLACK:
Q.
"We."
Again, I'm trying to separate out your
involvement, and the Judge has to decide whether you
have expertise.
group designed this.
So, I appreciate that Sea World as a
10
A.
Right.
11
Q.
But, I'm trying to understand your role.
12
A.
My role in it?
13
Q.
Yes.
14
A.
I would say my role would be, at the time I
15
would be, for lack of a better word, the project
16
manager, I suppose, right?
17
architects and engineers help design the system, a
18
private vendor who provided the schematics for how the
19
system would work and how it would be physically
20
installed, and I'm the go-between guy, suggesting what
21
would work, what wouldn't work, approving what I felt
22
would work or wouldn't work, taking those plans to my
23
bosses, saying "Do you agree or not agree?
24
agreement we're at at this point," making sure that I'm
25
not -- that I'm provided as much oversight as I can to
So, we had a couple of
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the project, knowing how the daily operation of the
facility runs.
right?
So, what may or may not be effective,
And, then, when the project is actually under
way, somebody has to manage the day-to-day, moment-to-
moment, what time the guy comes in, what time the guy
leaves type of process, and that was for better or worse
often me.
9
10
Q.
Now, I listened to you state your educational
background.
You said you have a BA in social science?
11
A.
Yes, sir.
12
Q.
And a masters in exotic animal collection
13
management?
14
15
A.
degree.
16
Q.
Yes, the exotic part isn't actually on the

I errantly added the exotic part.
And, so you said when you were explaining --
17
tell me if I've got this right -- that you learned how
18
to manage a small collection to be genetically and
19
geographically sustainable?
20
A.
Demographically.
21
Q.
Demographically.
22
A.
Yes.
23
Q.
And, what part of that degree, what courses
I'm sorry.
24
did you take concerning how to keep an animal trainer
25
safe?
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A.
In that program, I would say, none perhaps.
Q.
And, in your BA in social science, what
courses did you take that the topic was keeping animal
trainers safe?
A.
None.
Q.
And, the safety measures we talked about,
about the tigers and bears and the safety measures that
you have that you were consulting on or perhaps you have
the same issues at the San Diego Zoo?
10
A.
Typically not, but go ahead.
11
Q.
Now, if a tiger, for example, acted badly
12
toward to caregiver, you could shoot the tiger, right?
13
You could kill a tiger?
14
A.
Hypothetically.
15
Q.
Well, I mean, if there was a danger to the
16
trainers, you could ultimately shoot the tiger, right?
17
A.
Yes.
18
Q.
And I said trainer.
19
Actually, these are zoo
animals that are on display; not show animals, right?
20
A.
Correct.
21
Q.
And, the killer whales at Sea World are a
22
little bit different.
23
times a day, right?
They're putting on shows several
24
A.
Yes, they are putting on shows.
25
Q.
So, they're not just for display purposes, if
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you will.
Display in the manner that zoos display
animals?
A.
It depends on opinion, I suppose.
Q.
And, the amount of contact with zoo animals,
it differs than the amount of contact with show animals
that are being trained, right?
A.
I think we need to rephrase the question
because we have zoo animals on display and zoo animals
in shows versus Sea World animals on display and Sea
10
World animals in shows.
Right?
11
Q.
Right.
12
A.
So, can you rephrase your question or, I
13
14
mean, repeat your question?

Q.
15
16
I can certainly try.

The amount of contact that you have with the
zoo animals is typically less?
17
A.
Well, what zoo animals?
Which zoo animals
18
specifically?
19
Q.
So, it varies by zoo animals?
20
A.
Right, because we have a variety of contact
Sorry to interrupt you.
21
with animals in zoos.
22
animals into one category or level of contact.
23
the issue I was having with your question.
24
25
Q.
You can't just clump all zoo

That's
Well, there are different risk levels to
different zoo animals, right?
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A.
Yes.
Q.
And, some animals present greater risk than
others?
A.
Yes.
Q.
And, your specialty is elephants, right?
A.
It's become that, yes.
Q.
Whether you wanted it to be that or not,
that's taking up a third of your time now, right?
A.
That's one of them, yes.
10
Q.
And, of course, the elephants you work with
11
12
in a protected contact setting, right?

A.
It depends on how you define protected
13
contact, but for the purposes of here, yes, I would say
14
say that we are protected contact.
15
16
Q.
Now, you said you're a member of the AZA, the
Association of Zoos and Aquariums?
17
A.
I am.
18
Q.
I think you said you were the highest level
19
of membership?
20
A.
Yes.
21
Q.
And, that would allow you to be able to run
22
for office if you so chose?
23
A.
Correct.
24
Q.
I take it you don't hold any office?
25
haven't run for any offices?
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You
1639
A.
I have not run for the Board of Directors or
the WCMC or ethics or anything of that nature, no, I
have not.
4
5
Q.
And you're a member of the elephant TAG or
taxon advisory group?
A.
company, yes.
Q.
But, you're not a member of the marine mammal
10
A.
That is correct.
11
Q.
And, the marine mammal TAG, that kind of a
12
13
I am the institutional representative for my
TAG?
TAG is something that Sea World would belong to?

A.
They would, right.
They would have an
14
institutional representative.
15
run differently, and I'm really not entirely sure how
16
that TAG runs, honestly.
17
an institutional representative for all of the Sea World
18
Parks to the marine mammal TAG.
19
Q.
You know, every TAG is
But, I do believe that there's
So, you don't know whether the AZA has any
20
standards that apply to marine mammals, including killer
21
whales, right?
22
A.
23
24
25
Other than what's found in the accreditation
standards, I do not.
Q.
And, you don't know whether Sea World is
bound by any standards other than perhaps those
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accreditation standards in the management of its killer
whales?
3
4
A.
Correct.
Other than what's in the
accreditation standards.
Q.
And, you don't know whether other holders of
killer whales, other than Sea World, are accredited by
the AZA?
A.
No, I know of two facilities that hold one
killer whale each that are accredited the by the AZA.
10
Q.
Other than those two facilities, you're not
11
aware of what other killer whale facilities, whether
12
they have that accreditation or not?
13
A.
I can think of one other that would be
14
eligible for accreditation, but I don't know if they
15
are.
16
Q.
And, there are not standards for general
17
animal training or operant conditioning as part of the
18
AZA?
19
A.
Standards?
20
Q.
And, you're not aware of any other standards
21
Not that I know of.
regulating the training of killer whales, are you?
22
A.
I do not for the AZA.
23
Q.
Now, your positive reinforcement operant
24
conditioning, your knowledge of that and your seeking to
25
be qualified as an expert on that is based principally
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1
2
3
4
on your on-the-job training?

A.
Yes, more so than my academic training,
certainly.
Q.
Now, the science of positive reinforcement
operant conditioning, that's not a recognized field of
expertise in which degrees are awarded?
A.
It is, actually.
Q.
It is?
9
10
Right?
Who gives out degrees in positive
reinforcement operant conditioning?

A.
Well, it wouldn't be called positive
11
reinforcement operant conditioning.
It would be called
12
animal behavior or ethology, the study of animal
13
behavior, and there are many institutions that provide
14
various levels of degrees in the study of ethology,
15
where you would learn about the principles of operant
16
conditioning and classical conditioning and
17
reinforcement schedules and such.
18
Q.
19
institutions?
20
A.
I did not.
21
Q.
You did not happen to earn any degree from
22
23
24
25
You didn't happen to attend those
those institutions?
A.
No.
My university cancelled the program
while I was there.

Q.
Now, you were talking about conditioning and
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Pavlov and then I think we may have moved into Thorndike
and talked about operant conditioning increasing the
frequency of behavior?
A.
Yes.
Q.
But, operant conditioning doesn't involve
knowing the actual causes of the behavior that results
from the reinforcement, right?
A.
The actual causes of the behavior?
Q.
Yes.
10
A.
Well, in operant conditioning, the causes of
11
behavior is a willful response.
12
would be the cause.
13
14
Q.
A.
Q.
A.
23
24
25
Yes, the behaviors would be willful;
willfully emitted.
21
22
How about in positive reinforcement trust-
based conditioning?
19
20
In operant conditioning, yes, the behaviors
are always willful.
17
18
And, positive reinforcement operant
conditioning, is it limited to a willful response?
15
16
Voluntary response
Q.
And by willfully emitted, what do you mean by
A.
The animal chooses to or not to emit the
that?
behavior, perform the behavior.

Q.
Now, that field of operant conditioning does
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not know the precise mechanism physiologically that
generates the response by the animal, right?
3
4
5
A.
speak.
I believe it's a field that is in study as we
Right?
Q.
And, the current state of knowledge is not
one where it says if I do this, then the animal thinks
that, and that's the reason that the animal did that?
8
9
A.
Thinks that?
I don't know.
I would kind of
doubt it, right, but what type of brain function
10
actually occurs in order for the animal to take what is
11
a thought and deliver it into an actual behavior, I
12
believe has been researched for decades.
13
Q.
And, what is the result of that research?
14
A.
I'm afraid I don't know.
15
16
That's one of the
things Pavlov was doing nearly a century ago.

Q.
Now, in saying that the probability of
17
behavior will increase or decrease in response to
18
conditioning, in this case, you didn't analyze using a
19
scientific method of the response rates of the behaviors
20
of Sea World's killer whales?
21
22
A.
Did I?
No, I did not, but it's unnecessary,
really.
23
Q.
It's unnecessary to study the response rates?
24
A.
It's unnecessary to perform a statistical
25
analysis of the data in order to prove or disprove
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something or, more importantly, to convince somebody
else of your position because the effectiveness of
operant conditioning is not questioned.
Q.
Meaning what?
A.
Meaning there are people out there that are
telling us that it doesn't work.
a scientific study, right, in order to prove to folks
that it does work with strict scientific scrutiny,
right, and significant, statistically significant data
10
So, we need to perform
and numbers.
11
And, there's another reason why it would be
12
unreasonable to actually perform a study like that.
13
order to process a scientifically valid study, using
14
proper methodology, we would need to establish a control
15
group of killer whales and an experimental group of
16
killer whales which would mean that you would have one
17
group of killer whales that you either provide no
18
training for or a different type of training for, right,
19
and compare them to the killer whales that you are
20
training with your positive reinforcement operant
21
conditioning techniques so you could compare and
22
contrast.
23
know, a sample size of three and three isn't going to do
24
you much good anyway.
25
In
And, also, if you only have six whales, you
But, nonetheless, it wouldn't be ethical,
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honestly, to deny these animals, you know, that type of
welfare and quality of life in order to produce a paper
to convince somebody that doesn't need convincing
anyway.
Q.
Right.
A.
Our industry in general does not need
Sea World doesn't need convincing.
convincing.
Q.
That operant conditioning, as you say, works?
A.
Correct.
10
Q.
What do you mean by operant conditioning
11
12
works?
A.
That it very effectively modifies the
13
frequency of behavior, most importantly, the frequency
14
of behavior that we desire and that it produces results,
15
predictable results that help us better maintain the
16
welfare and health of the animals.
17
Q.
So, how predictable are those results?
18
A.
The science and the literature that's out
19
there shows rather conclusively how the different styles
20
of reinforcement schedules that are available for use
21
produce very predictable patterns of behavior.
22
And, we could -- and people have -- using
23
techniques that we wouldn't find appropriate or looking
24
for behavioral responses that we wouldn't find
25
desirable; yet, these are people in clinical labs who
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have modified, you know, behavior frequencies to produce
very predictable results for the increase in the
frequency of the behavior, the decrease in the frequency
of behavior, the extinguishing of behavior.
well known field and it is readily accepted.
6
7
8
9
Q.
It's a very
Okay, I'm not sure what that means.
It's a
well known field readily accepted?

A.
Well, the field of modifying reinforcement
schedules, right?
Within behavior analysts, the
10
discipline of modifying reinforcement schedules to
11
assess the changes in behavior frequencies has been
12
going on for decades.
13
Q.
You say analysts and such.
You're not aware
14
of what the research is that's being conducted by
15
universities, for example, and what they have found on
16
predictability?
17
A.
Currently, I'm currently working with a
18
couple of universities in related fields, but I would
19
say, what I'm doing with certain universities is not as
20
sophisticated as what you're referring to right now.
21
There are those that are doing it, though.
22
23
24
25
Q.
You said very predictable.
How predictable
is very predictable?
A.
That's a good question.
I'm afraid I
probably couldn't give you the correlation off the top
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of my head right here about how predictable it is in
data.
very high percentage of success and predictability in my
world.
But, anecdotally, you know, it does provide us a
So, I'm not talking the lab or the papers
that I've read, but in my world in training animals
whether they're the killer whales in my days past at Sea
World, the elephants that I've been training for years
at my own zoo and zoos, or in the consultations that I
10
do at other zoos, I would say, again, anecdotally, we
11
have at least a 95 to a 98 percent success rate with the
12
behaviors that we ask the animals to do.
13
wanted to --
And if we
14
Q.
That's anecdotally, right?
15
A.
Anecdotally, yes.
16
Q.
That means not something that has been
17
studied in a way that could be reliably measured and
18
replicated?
19
20
A.
Not in my current work, right.

I do plenty of peer reviewed scientific
21
papers that have to stand up to stringent statistical
22
models, right, but they're not studies that are based on
23
the discipline that you're speaking of right now.
24
And, again, there's only so much time to do
25
studies and such, and I'm going to commit efforts, you
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know, the efforts of those that I work with to produce
results in a field where I feel I need to convince some
of my peers of a standpoint that I have.
And, in the field that you're referring to
right now, I don't have that challenge; you know,
somebody or a group of people saying, "What you're
talking about doesn't work," so I don't need to invest
my time to convince people that don't need convincing.
Q.
Again, when you say, "work," that means to
10
get the animal to do the behavior you have asked the
11
animal to do, right?
12
A.
That's part of it, right.
And, certainly,
13
the physical training of an animal takes a long time and
14
a lot of patience, but in order to produce a manuscript
15
and a data set that's worthy of statistical analysis and
16
run those stats and write that paper, submit it for
17
publication, have it reviewed, have it resubmitted, that
18
takes time and a lot of work.
19
But it does take a long time.
20
Q.
It's fun work, right?
And, you haven't reviewed any such papers or
21
studies that Sea World itself performed to measure the
22
predictable results of its animals, its killer whales?
23
A.
Again, Sea World didn't -- from what I
24
understand, based on my experience and what's been going
25
on since I've been there, Sea World didn't feel a need
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to produce studies of that stringent nature, not only
because it's already accepted, right, but to run a true
experimental program would mean probably setting up a
control group and experimental group denying certain
animals of the type of training that we're committed to
giving them in the first place, which is important.
However, Sea World has published dozens of papers in
other journals about the successes of its programs in
the advancement of its techniques so that it can
10
11
continue to lead the field.

Q.
Right?
Okay, I asked what you reviewed, not what
12
they had published.
13
the papers that you reviewed to be able to testify in
14
this case?
15
16
A.
So, I'm taking that those are not
I'm sorry, you'll have to repeat the question
for me.
17
Q.
Certainly.
18
A.
Thank you.
19
Q.
The papers you just referred to, the
20
published papers by Sea World that they have done and
21
related stuff, those aren't things that you reviewed to
22
help you provide an opinion in this case?
23
24
25
A.
I did not review them to provide an opinion
in this case but I know of them.

Q.
You know of their existence?
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A.
Yes, and I helped write some of them.
Q.
The predictable result, of course, operant
conditioning allows for the fact that sometimes despite
increasing the predictability of the animals, that
there's still an element of unpredictability?
A.
In a sense, yes, but we would end up in an
argument of semantics.
So, in other words, if I can
predict correctly that they're going to behave a certain
way, let's call it 95 percent of the time, right?
10
Q.
Right.
11
A.
I can also probably pretty accurately predict
12
their behavior that five percent of the time that
13
they're not doing what I asked them to do.
14
predictable.
15
Q.
It's still
It's predictable that five percent of the
16
time, they're not going to do what you have asked them
17
to do?
18
A.
Right, and what they do as an alternative
19
behavior to what I've asked them to do, that behavior in
20
itself is predictable.
21
is if it doesn't do what I want it to do and it refuses
22
the behavior and does something else, I have a pretty
23
good idea what it's going to do and it usually does, and
24
we know how to --
25
Q.
So, basically, what I'm saying
You've been speculating very predictable,
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usually, but you're not allowing that there is some
level of unpredictability?
A.
Certainly.
Very small, but certainly.
Q.
What is the percentage of unpredictability?
A.
I don't know.
Q.
I shouldn't ask you the opinion question.
Honestly, I would --
Did you study the level of unpredictability by Sea
World's killer whale?
9
10
11
12
13
A.
Again, anecdotally?
Yes.
Peer reviewed?
Q.
And, what data did you use in studying
No.
anecdotally Sea World's -A.
Back in my days when I was at Sea World,
14
there was a lot of different data.
15
incident reports that are here, but the training
16
records, you know, the animals -- for every single
17
interaction with the animals, a training record is
18
completed that allows for not only the reader of that
19
training record to determine how the animal behaved
20
during the last session, yesterday, last week, but that
21
data is also entered into a computer that allows for
22
graphic representations of a data to come back to us,
23
and so we can review it monthly and that critical data
24
allows you to analyze the success rate of the animals
25
over any period of time that you plug into the querry.
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So, not only the
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So, whether it's for a day, a month, a year,
yo can say, all right, this animal just performed nine
out of ten behaviors on average, correctly, over the
last two weeks, and then it went up to 95 out of 100 for
the next two weeks, right?
ten for the next three weeks.
Right?
And, then, it was ten out

Wonder what changed?
And it allows us to look at that.
So, yes, we're looking at that data, so the
critical data, the training records, the communication
10
logs, the incident reports, there's plenty of data to
11
look at to see how things are improving or changing over
12
time.
13
14
Q.
And, Sea World itself does those very kinds
of things that you're talking about.
Right?
15
A.
They do, right.
16
Q.
What did you do that was different than what
17
Sea World does in analyzing its own data that was other
18
than an entirely anecdotal analysis?
19
20
21
A.
Personally, nothing, other than the writing
of these papers that I referred to earlier.

Q.
Now, what insights does the operant
22
conditioning theory provide into relative safety risks
23
of working with killer whales?
24
25
A.
Well, insights, you know, would imply some
sort of inferred information, and with that in mind, the
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predictability of behavior and the predictability of an
increase in the frequency of desired behavior would in
itself increase your safety practices around these
animals.
Q.
But, again, not in a measurable way of this
level of predictability has created this level of
safety?
A.
If you want to do it, you could.
Q.
But, it could be done.
10
It hasn't been done
here in this case, right?
11
A.
Not that I know of, right.
12
Q.
You didn't do that?
13
A.
I didn't do it, no.
14
Q.
Now, you talked about the positive based or
15
positive reinforcement, trust based, positive based?
16
A.
Sure.
17
Q.
And that you say is based on the animal
18
trusting the trainer and having a relationship with the
19
trainer?
20
A.
That would be part of it, yes.
21
Q.
And, tell me what part of the measurement of
22
that relationship or emotional connection is not an
23
inherently subjective determination?
24
25
A.
Well, the word, "relationship," in itself is
a subjective term, I would say.
CARLIN ASSOCIATES
Right?
And there are a
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lot of subjective things in science and especially in
applied science.
as often as we can saying things like the elephants or
the killer whales or whatever have a personality.
Instead, we would say they have a behavioral profile or
behavioral characteristic.
have a relationship with the animal or the animal has a
relationship with us or a positive relationship with a
certain scenario, we would say that the animal has a
10
reinforcement history, and that is a more measurable
11
thing because you can quantify how well the animal does
12
with this person numerically versus this person
13
numerically, based on how well it performed on average
14
with this person versus this person or in this scenario
15
versus this scenario.
16
Q.
To avoid those things, we try to avoid
Instead of saying that we
So, it can be a measurable thing.
The emotional connection or relationship, you
17
say it could be a measurable thing.
How is it that you
18
measure the relationship that is sustaining or causing
19
the behavior?
20
A.
I suppose you could do it by numerically
21
assigning a value to when the animal did something.
22
course, it would be subjective again, but you could
23
assign a numerical value to when the animal or how well
24
the animal did on a ratio of behaviors to one person
25
versus another person or a person that has primary
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reinforcement versus the same person without primary
reinforcement and, therefore, assign a value to what
would be, say, the reinforcement history with that
individual as opposed to the presence of food for that
individual.
But, you asked "could" so I'm offering up a
hypothetical situation.
know of.
Has that been done?
Do we feel it to be necessary?
Not that I
Not so much.
Again, there is a lot of art in training
10
animals, and there are certain things that you are
11
pretty confident are true even though you can't
12
necessarily measure it or ask the animal what it feels,
13
and there are thousands upon thousands of examples
14
throughout the zoological community, including Sea
15
World, of where animals appear to be exhibiting behavior
16
because they have a reinforcement history with that
17
person as opposed to doing it just simply because you
18
have a bucket of fish.
19
And, you know, has anybody done studies to
20
try to empirically prove that so we know it?
21
know of.
22
doesn't.
23
Does it mean it doesn't exist?
Not that I
No, it
You know, if you have a strong relationship
24
with your dog, and your dog appears to enjoy your
25
company when you come home as opposed to when a stranger
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walks by and your dog appears to be unfriendly towards
that stranger, do you need a statistician to run a
year's worth of data to prove to you that the animal
works better around you than around that stranger?
really.
relationship with you?
Not
Do you know in you heart that that animal has a
Sure, you do.
Sometimes it's okay to be anthropomorphic.
We try our best to avoid being anthropomorphic for fear
of scrutiny.
But, you know, 20 years ago, saying your
10
dog was happy was heavily criticized.
11
much anymore.
12
there are more and more studies that are being done
13
nowadays that look into the deeper emotions of animals
14
and whether or not animals have compassion, whether or
15
not animals feel sorrow, whether or not animals have
16
fun.
17
Right?
Not so
The pendulum has certainly swung, and
Johnathan Balcombe at the University of
18
Tennessee, Ph.D in ethology, has a litany of books and
19
peer-reviewed manuscripts, looking into exactly that.
20
And, there are others as well.
21
his work.
22
Q.
I just happen to like
And, Mr. Andrews, how do we relate what
23
you're saying about this operant conditioning so that we
24
know what you have done to measure the level of safety
25
it provides, other than looking at how many incidents
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and injuries there have been?
A.
I'm sorry, one more time.
Q.
Certainly.
That was a little bit too
confusing a question.
How do we relate what you know about operant
conditioning and what you're saying about operant
conditioning?
operant conditioning to how much safety operant
conditioning provides to, for example, the Sea World
10
How do we determine, using this study of
killer whales?
11
And, I'm not asking for the opinion of how
12
safe it is.
13
relate to your determination of your ultimate opinion of
14
how safe you thought it was?
15
A.
I'm asking how does operant conditioning
I think I've gotcha, and I think I've already
16
answered another question either very similar or with
17
the same answer I'm going to come up with right now, and
18
that is the increase in frequency of desirable behavior
19
and the predictability.
20
The increased predictability of those
21
behaviors is inherent in increasing the safety of our
22
close interactions with a whole variety of animals,
23
including the killer whales at Sea World.
24
25
Q.
So, other than studying whether Sea World
uses operant conditioning in the way that you think it
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ought to be practiced, how does studying operant
conditioning or how does the study of operant
conditioning tell you anything about how safe Sea World
has made it to interact with the killer whales?
A.
I would say the study of operant conditioning
implies that we're looking to improve the efficacy of a
program like that.
animal training program would increase safety.
Q.
The efficacy of a program of an
But, you don't have any parameters or
10
measuring sticks in operant conditioning that would
11
allow you to assess operant conditioning and that
12
discipline that this is safe enough, that this an
13
adequate level of safety?
14
A.
15
conditioning.
16
conditioning that you could empirically measure, right?
17
So, how effective would your application of operant
18
conditioning measure the predictability and reliability
19
of behavioral responses, and that would get you your
20
answer.
21
Q.
It wouldn't be so much directly operant

It would be the results of the operant
And, what do you consider your expertise in
22
measuring how safe Sea World's program is?
23
an opinion that Sea World has a safe program, which one
24
of these many areas that Sea World seeks to quality you
25
in qualifies you as an expert to offer that opinion that
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1
2
it's safe?
A.
I would look to a variety of things.
I would
probably start with the incident log itself and compare
the number of interactions that the animals have
received over a given period of time compared to the
number of incidents and compared to the number of
injuries over the same period of time, and that's going
to give me a general idea of the relative safety, you
know, the ratio of successful interactive occurrence
10
with trainers and whales.
11
and then you could compare that number over time.
12
That's one thing I would do.
13
That's one way I would start,
I would also look at the staff training.
How
14
well is the staff trained to interact with not only the
15
whales but the facility in itself, and I suppose the
16
guests and visitors or such, and that staff training
17
would not only be represented in a hands-on,
18
on-the-grounds type of mentoring program but also
19
represented in paper form in manuals, Standard Operating
20
Procedures, staff development programs, career ladder
21
things, and so that's how I would and, in fact, that's
22
what I did.
23
Q.
Which one of the disciplines and the areas of
24
expertise is the one or ones that qualify you to do
25
something different than what Chuck Tompkins or Kelly
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Clark could do in looking through those incident reports
and saying, "Here's a comparison of injuries to
interactions"?
A.
Um-hum.
Q.
Because you understand they gave that
opinion; granted a lay opinion.
opinion like that, I assume, as an expert.
anything --
A.
You seek to give an

What makes
Well, I would say my objective position
10
certainly would be an influence.
11
intuitive.
12
of Sea World would be an additional benefit.
13
experiences I have working with a wide variety of taxa,
14
and some of these scenarios might be applicable to the
15
assessment that I'm providing that internal Sea World
16
folks would not have the same type of professional
17
experience with or knowhow, and that I would bring a
18
different perspective to it.
19
Q.
I think that would be
Secondly, my experience outside the boundary
And, what is that different perspective?
20
mean, what is the different perspective?
21
understand.
22
23
24
25
A.
The
I don't
Mostly that I wouldn't have the same level of
involvement or perhaps interest in the outcome.

Q.
How is that different from the first thing
you mentioned which was your objective position; you
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would have an objective position?
the same thing?
That's really just
A.
It's pretty much the same thing, yes.
Q.
So, which one of these disciplines gives you
this expertise to somehow make a better analysis of how
safe it is at Sea World?
7
8
9
10
A.
Do you want me to like list which one I think
is more important?
Q.
Or any of them.
You can list more than one.
I don't want to limit you.
11
A.
I'm sorry, what is the question again?
12
Q.
Which one of these disciplines that Sea World
13
seeks to qualify you in --
14
A.
On the safety part.
15
Q.
On the safety part because your opinions here
16
concern safety, correct?
17
A.
Yes.
18
Q.
You have given opinions in a report that Sea
19
World hopes to present at trial, right?
20
A.
Yes.
21
Q.
Which of those various areas qualifies you to
22
help the Judge better understand this better than the
23
other witnesses who have testified before you?
24
25
A.
So, which area, meaning an objective
perspective over an external perspective?
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Q.
I'm sorry, I don't understand that.
Objective perspective versus external perspective, what
does that mean?
A.
External means I have a wide variety of
experiences in similar and dissimilar facilities and
programs that would bring a different perspective to the
assessment of the safety program.
8
9
10
11
Q.
And, how did you bring those different
external experiences to bear on the work that you did in

analyzing the safety?
A.
Right, exactly.
I compared the hands-on
12
safety program, I compared the staff development and
13
mentoring, I compared the long list of written protocols
14
that I discussed earlier that Sea World has in effect as
15
of February 2010 to those that I have access to at other
16
facilities outside of the Sea World system, not only the
17
place that employs me, but several other zoos and
18
aquariums that I consult for.
19
Q.
Because I didn't see in your report where
20
there's any sort of opinion about safety rates, where
21
you know, you give an opinion ultimately of what the
22
percentage of safety based on some calculation of
23
injuries versus incidents.
24
You didn't compare it to other facilities and their
25
safety rates, right?
I'm trying to understand.
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A.
I did not empirically compare the same type
of data that I learned from the Sea World information to
similar data from other zoos, solely for the purpose
that that data doesn't exist for our zoos.
Q.
What I'm trying to understand is other than
saying Jeff Andrews seems like a nice guy, he speaks
well, what is it that you have -- and he doesn't work at
Sea World currently, so he's looked at all of this.
But what expertise -- how is that applied?
You haven't
10
measured Sea World's safety record versus somebody
11
else's safety record, right?
12
A.
I did anecdotally but I didn't empirically
13
because, again, the data doesn't exist that I know of.
14
Other zoos don't collect information like this while Sea
15
World does.
16
Q.
And, when you say anecdotally, anecdotally is
17
nowhere referenced in your report, right?
18
your report, no tables, right?
No results in
19
A.
Correct.
20
Q.
So, how can anybody measure the reliability
21
of your opinion that anecdotally, Sea World seems to be
22
doing a pretty good job?
23
MS. GUNNIN:
Judge, I understand Mr. Black is
24
very passionate about this issue, but it seems like
25
we're getting argument now rather than a simple voir
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dire qualifications.
JUDGE WELSCH:
MR. BLACK:
It sounds very argumentative.

Let's go on with your questions.
I'll tone it down, Your Honor.
apologize.
JUDGE WELSCH:
BY MR. BLACK:
Q.
Just ask questions.
The question being how is it that you have
something offered here in your analysis of Sea World
that can be objectively evaluated?
10
A.
No, I can understand what you're getting at,
11
and you're suggesting that it would be beneficial that
12
there was a statistical analysis and perhaps a
13
correlation assigned between Sea World's success data to
14
that of other zoos, and perhaps my report could have
15
included some statistics that would help you in that or
16
help the Judge in that, and whether that's appropriate
17
or not, I'm not sure, but I can say that I haven't seen
18
in the course of the two weeks we have been here, any
19
statistical analysis being offered up by any party here
20
in the room, whether it's the Secretary, whether it's
21
Professor Duffus, whether it's our own Counsel or me
22
personally.
23
Q.
Right.
I haven't seen it either, but, I
24
mean, it's you who wants to give an expert opinion on
25
this, and you understand that it has to assist the fact
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finder in making his decision.
know, "I do a lot of things in these various areas, and,
Judge, trust me, it's safe," I mean, if that's the
extent of your opinion, obviously, that wouldn't be
helpful to the Judge, right?
6
7
MS. GUNNIN:
JUDGE WELSCH:
BY MR. BLACK:
11
Judge, this is argument.
These
are not questions.
10
If all it is is, you
Q.
Sustained.
Let me turn to the data that you looked at.
You said you looked at the animal profiles?
12
A.
Yes, sir.
13
Q.
And medical histories?
14
A.
In the profiles.
15
Q.
So, any medical histories other than the
16
profiles?
17
A.
No.
18
Q.
Something about collection; medical histories
19
20
21
22
23
collection?
A.
The collection history of the animals.
So,
where it has been in its zoological lifetime.

Q.
And, the SOP's, the standard operating
procedures?
24
A.
Right.
25
Q.
The monthly logs.
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What monthly logs did you
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1
2
review?
A.
Whichever monthly logs were in the long SOP
document that was provided to me.
believe in the same document that's already been
admitted to the Court.
Q.
There are monthly logs?
A.
The SOP.
8
9
10
In the same -- I
Inside the SOP somewhere was a
monthly -- I don't know what it's called -- record.

Q.
Let me hand you C-1 and see if you can tell
me what you're referring to.
11
A.
(Reviewing Exhibit 1).
12
Q.
Did you find that?
13
A.
I couldn't find that in here.
14
Q.
Then, what are you referring to when you say
15
16
you looked at these monthly logs?

A.
Off the top of my head, I'm not sure.
17
did you provide Ms. Flaherty Clark earlier today?
18
was that log?
19
Q.
20
21
22
of it.
What
Do you mean the document that I showed her
that she had no knowledge of?

A.
What
That one?
I don't know, right, if she had no knowledge
Right?
23
Q.
What kind of log?
24
A.
The one that was talking about Tilikum this
25
morning.
CARLIN ASSOCIATES
What are we talking about?
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1
2
Q.
Where we pointed out what appeared to me at
least to be aggression incidents involving Tilikum?
A.
Yes, what was that?
Q.
Monthly recaps?
A.
That was probably it right there.
Q.
So, that's a document that you used?
A.
I believe so.
Q.
You used that and when you used that, did you
9
10
11
12
13
14
have an understanding of the level of credence that Sea

World had applied to that document?
A.
I wasn't familiar with the level of credence
as you say.
Q.
So, how did that help you form an opinion in
this case?
15
A.
Just more information.
16
Q.
More information?
17
And you said animal
training manual?
18
A.
Correct.
19
Q.
And the Shamu Stadium manual?
20
A.
Correct.
21
Q.
About career ladders?
22
A.
Correct.
23
Q.
Is that something that's in one of those
24
manuals?
25
A.
It's in one of them.
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Q.
AZA accreditation standard?
A.
Right.
Q.
Did you say something, did I hear something
about accreditation standards for facilities owning
killer whales?
A.
In the accreditation standard, there are a
couple of bullet points relating to safety where killer
whales are included as examples.
9
10
Q.
And, then, you mentioned talking to Mr.
Tompkins?
11
A.
That's correct.
12
Q.
And, I seem to recall from your deposition,
13
you spoke with him on two occasions in this case?
14
A.
That sounds right, yes.
15
Q.
And, you didn't speak to anybody else to
16
obtain information about what happened.
17
speak to anybody else who provided information upon
18
which you relied or considered in preparing your report?
19
A.
Ms. Flaherty Clark.
You didn't
Oh, actually, I think I
20
put out the report before I started talking to her about
21
this.
22
JUDGE WELSCH:
Can you repeat your answer?
23
THE WITNESS:
Sure.
I think I was saying,
24
although it was probably an erroneous response, that I
25
had also spoken with during the course of this case Ms.
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Flaherty Clark, but your question was referring to the
developments of that report, correct?
BY MR. BLACK:
Q.
Yes.
A.
And, I think at that point, it was just
6
7
Chuck, Mr. Tompkins.

Q.
So, you maybe have some new opinions that you
want to provide, based on having spoken to Ms. Flaherty
Clark since the report was issued?
10
A.
I may I have some new information, yes.
11
Q.
Tell us what information that you would like
12
to rely upon that hasn't been disclosed in Court here
13
that isn't something that's testimony that's happened in
14
Court?
15
A.
I'm not sure if that information has been
16
disclosed or not, but just more information about the
17
numbers of interactions versus incidents specific to Sea
18
World of Florida as compared to previously when I was
19
providing information on all the Sea World Parks
20
combined.
21
Q.
Anything else?
Any other information that
22
Ms. Flaherty Clark provided to you that you wish to now
23
give a revised opinion or opinions about?
24
A.
I do not believe so.
25
Q.
And, then, you mentioned you made a site
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visit in 2011?
A.
That's correct; in May, I believe.
Q.
What did you do during that site visit?
4
5
What
information did you acquire?

A.
I looked around the entire facility, the
killer whale facility here in Sea World of Florida, and
compared it to my knowledge of what the facility looked
like prior, and information from Chuck about what had
been changed before and after the incident of
10
11
February 2010.
During that site visit, I looked at the
12
modifications being made to G pool, I looked at the
13
modifications made no the walls surrounding the
14
facility, the modifications to the gate-latching system
15
in the medical pool, the addition of the painted lines
16
on the surface surrounding the perimeter of the pool,
17
the spotter shack, the new target poles, I believe the
18
new net boxes.
19
I looked at the whales, went out to the front
20
stadium and looked at the configuration, the change in
21
the configuration of the areas on either side of the
22
main display pool, the A pool, where additional barriers
23
and doors were put up to prevent people from accessing
24
the back areas.
25
The same thing in the far back side of the
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facility, you know, where there's a door that leads to
the area next to the staff offices, and that is probably
about it.
4
5
6
Q.
The new target pole, what was that that you
looked at?
A.
It was mostly around the pool where Tilikum
was, and looking at some modifications they had made to
be able to attempt to maintain his level of care with
these new restrictions that they were imposing upon
10
themselves for their safety practices while they were
11
assessing what to do.
12
13
Q.
And, you also mentioned you relied on your
own personnel knowledge?
14
A.
Yes.
15
Q.
What specifically of your personal knowledge
16
did you use as data here?
17
A.
Data in that report?
18
Q.
Data that you considered that affected or
19
20
influenced your opinion?

A.
In that respect, it was mostly the facility
21
itself, the physical facility itself, recalling what it
22
used to look like back when I would travel here for
23
business compared to what it looks like now.
24
Q.
And, you reviewed the OSHA citations?
25
A.
I did.
CARLIN ASSOCIATES
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Q.
And, you the reviewed incident reports?
A.
Yes.
Q.
Have I listed everything, every bit of data
4
5
6
7
that you reviewed in this case?

A.
I didn't review anything else that is not in
that report.
Q.
Do you want me to hand you a copy of the
report so you can just make sure that we're not missing
something?
10
A.
Sure.
11
MR. BLACK:
Your Honor, I'm just using this to
12
refresh his recollection.
13
to mark it?
So, I don't know, do we need
Because I not offering it.
14
JUDGE WELSCH:
Not if you're not offering it.
15
BY MR. BLACK:
16
Q.
I hand you, Mr.
17
A.
Okay.
18
Q.
And, I'm asking you to look through it and
Andrews, your report.
19
tell me if there was any other data that you considered
20
in preparing your opinions in this case?
21
your attention to Page 3, there are some bullet points
22
there.
23
A.
Right, I just reviewed those.
I might turn
I also have on
24
the top of Page 4 a full review of the events of
25
February 24th, per personal communication with Chuck
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1
2
3
4
Tompkins and legal Counsel.

Q.
You believe that's it?
You reviewed
videotapes?
A.
Yes, I did, in fact.
Yes, thank you.
reviewed three different videotapes of the incident on
February 24th.
Q.
One was the so-called tower cam videotape?
A.
Yes.
Q.
And, one was the so-called underwater video?
10
A.
Yes.
11
Q.
And, the third was the so-called Connell's
12
13
14
15
16
video above water?

A.
Yes.
I don't think I reviewed any other
video, yes.
Q.
And, then, you reviewed the sheriff
department's investigation in this case or not?
17
A.
I don't believe I did.
18
Q.
And, did you review the -- were there any
19
other documents -- I'm sorry, it's late in the day.
20
When you said based on discussions with Mr. Tompkins and
21
Counsel --
22
A.
Right.
23
Q.
-- that there was some information provided
24
to you.
Tell me what the data provided to you in those
25
discussions was that came from Counsel?
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A.
You know, I don't remember exactly who gave
me the information, whether it was Chuck or Counsel or
both, but I believe that that data is limited to the
methods for how they came up with the numbers of total
interactions in all Sea World parks from 1988 through
February of 2010 and the number of injuries that
occurred during that a same time frame.
8
9
Q.
Mr. Tompkins also told you his understanding
of how the incident with Dawn Brancheau occurred?
10
A.
Yes.
11
Q.
And, so he described what his understanding
12
of the incident was?
13
A.
Yes.
14
Q.
And, you understand he wasn't present when
15
the incident occurred, right?
16
A.
Yes.
17
Q.
Did he provide you any documents on the
18
incident?
19
A.
No.
20
Q.
Now, the data on injuries that you used in
21
your report, that are considered in your report, where
22
did that data come from?
23
A.
It came to me from either Chuck Tompkins or
24
Counsel or both, and where they came up with that data,
25
I cannot give you a first-hand account of it, but I can
CARLIN ASSOCIATES
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tell you they explained to me how they came up with that
data.
Q.
I'm sorry, which data are you talking about?
A.
The total interactions versus injuries.
Q.
How about just the injury data?
Where did
that come from?
A.
I don't recall.
Q.
You don't know where the injury data came
from?
And, I'm sorry for my animated way of asking
10
that.
That wasn't part of your comparison and ultimate
11
opinion was as to --
12
A.
As to where the -- yes, I agree.
Yes, I
13
recall -- it might take me a second or two to think
14
about it, but I do recall how they computed the total
15
number of interactions between '88 and February 2010,
16
but the number of injuries, if I recall the
17
conversations with Chuck, was that he compiled that data
18
through communications with his incident reports and
19
other parks, officials at other parks.
20
Q.
So, you relied on Chuck having gathered
21
information from his review of incident reports and
22
talking to other people?
23
A.
Yes.
24
Q.
Did you do anything to test out the
25
reliability of that data that he provided to you?
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A.
All I did to try to ascertain the validity of
that data was to review it at length and compare it to
my own personal memory of the injuries in question.
Because not only when I worked at Sea World did I have a
firm grasp of incidents and injuries, but even after I
left, I was still keenly aware of what was going on at
Sea World.
I still had a strong interest and
relationship with people at the various Sea World Parks.
10
So, I typically knew when somebody was hurt, and I could
11
look at it and just cross-reference it to my own memory.
12
Q.
How about today in preparing this report?
13
Were you able to cross-reference your memory in knowing
14
whether the injuries that were told to you by Mr.
15
Tompkins whether those were all of the injuries or not?
16
A.
Today or for the report?
17
Q.
For the report.
18
A.
Yes, they seemed to be accurate if I recall,
20
Q.
It seemed accurate?
21
A.
Right.
22
Q.
23
A.
That I didn't know of any injuries that were
19
yes.
24
missing from the report, and I had no reason to believe
25
that there were injuries that were missing from the
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1
2
3
4
report.
Q.
Right?
What does that mean, you had no reason to
believe that they were missing?

A.
Because, one, I don't feel like they would be
trying to mislead me; and, secondly, again, like I
mentioned before, I have a certain amount of awareness
of what's going on at the Sea World Parks even though I
don't work there.
find out about it because they're friends of mine.
When someone gets hurt, I usually
10
Q.
You find out somebody gets hurt, how?
11
A.
Typically, somebody calls me.
12
Q.
Earlier, I thought I heard you say one of the
13
advantages of your opinion is you're an objective person
14
from the outside, and as an objective person from the
15
outside, you're saying that you had no reason to
16
question the accuracy of a person from the inside who is
17
giving you information than a person who does have an
18
interest in the outcome of this case?
19
A.
Right, and I considered that as well, and
20
part of my mental processing of that was to consider
21
after I ran just a rough assessment of what the success
22
rate or percentage rate of successful interactions to
23
those that incurred some sort of injury, even if we
24
applied a nominal standard error or even a liberal
25
standard error, the percentage of injuries to
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interactions was still an extremely small number.
Q.
You mean that even if it was twice --
A.
Yes, so if I was off by 50 percent, right,
which typically a standard error is not 50 percent, but
even if I was, it was still a hugely small number.
Q.
And, of course, I don't want to tread on the
line of giving your opinion, but I did ask you about the
quality of the data, and you're saying that even if the
data were flawed in some way, that they were still good
10
enough for what you did.
11
12
A.
yes.
13
14
I'm sorry, that's opinion.

Q.
So, you didn't look at any injury logs
yourself?
15
16
It was still impressive, what I was seeing,
A.
I did not go to the three parks', you know,
injury logs or human medical records or --
17
Q.
Or to ask Sea World to provide copies of
19
A.
Exactly.
20
Q.
Now, you were --
21
A.
I should add that I assume that I wouldn't be
18
22
23
24
25
them?
given that information.

Q.
And, then, you want to offer an opinion upon
feasible abatement for this case, right?

A.
Yes.
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Q.
And, you didn't do any analysis of what types
of barriers, physical barriers Sea World could have used
to protect against the hazards that were cited, right?
A.
I performed a mental evaluation and
introspective thought process as to what would be
feasible and perhaps what would not be, and as you can
see in my report, my findings are that most physical
barriers --
9
10
11
12
JUDGE WELSCH:
It seems like you're getting to
opinion here.
THE WITNESS:
Sorry.
So, yes, I did consider
it, yes.
13
BY MR. BLACK:
14
Q.
15
opinion?
16
A.
What data did you use in forming that
My personal knowledge of working with killer
17
whales and the current structure of facilities that are
18
used to contain killer whales, not only on the whole but
19
in one pool versus another pool and what, therefore,
20
might be used to physically construct a barrier as well
21
as what are commonly or even uncommonly used with other
22
species of animals in other zoological institutions.
23
24
25
MR. BLACK:
Judge, I don't have any more
questions for voir dire.

I expect the Court might have some questions or
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not before we take up any motion or there may be
redirect.
JUDGE WELSCH:
Do you have any Redirect?
MS. GUNNIN:
Judge, I do have just a couple
here.
---o0o---
BY MS. GUNNIN:
Q.
10
Mr. Andrews, did you review the OSHA
inspection file that was provided to you?
11
A.
The Citations (a) and (b).
12
Q.
The actual OSHA inspection file?
13
A.
The whole -- I did.
14
Q.
That would be one other piece of information
15
you reviewed?
16
A.
17
MS. GUNNIN:
Judge, that's all the questions I
MR. BLACK:
That did just raise a point.
18
19
Yes, ma'am.
Yes.
have.
20
---o0o---
21
VOIR DIRE EXAMINATION
22
BY MR. BLACK:
23
Q.
When you say you reviewed the OSHA inspection
24
file, is that like the 2,500 pages of materials in the
25
OSHA file, or some number, hundreds of pages?
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I'm not
1681
trying to trip you up.
A.
Right.
Q.
I'm just trying to understand when you said
you reviewed the OSHA file, what that encompassed.
A.
that lengthy.
Q.
How lengthy do you recall its being?
A.
I honestly don't recall, but the part that I
I don't believe the information I read was
focused on was the portion -- I would have to review the
10
file that was offered to me.
11
focused on was the citation itself, Instances (a) and
12
(b), right.
13
14
15
16
17
18
Q.
And, the portion that I
So, for example, did you review autopsy
reports contained in the file?

A.
I'm sorry, I'm not recalling right now which
documents it was provided fell into which file, right.

Q.
So, are you having trouble with that?
Did
you review autopsy reports?
19
A.
I read the Katie Byrne coroner's report.
20
Q.
Keltie Byrne?
21
A.
Keltie Byrne, sorry, yes.
22
Q.
And, how about the Dawn Brancheau autopsy
23
report?
24
A.
I don't believe I did.
25
Q.
As part of the file or at all?
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A.
At all, I believe.
Q.
We had a discussion about that at your
deposition as to whether you had reviewed that, and your
testimony here today is that you did not review the
autopsy report, and just to refresh your recollection,
you did give an opinion regarding that incident and what
took place on that.
8
9
A.
Right, and I remember my opinion about the
incident itself.
10
Q.
And certainly we're --
11
A.
And, I do recall our conversation about it;
12
but, honestly, I'm sorry, I don't recall.
13
Q.
You don't recall here today?
14
A.
I recall our conversation.
15
JUDGE WELSCH:
16
MR. BLACK:
18
better question.
20
21
22
JUDGE WELSCH:
It is.
Sorry, Judge, that's a
Is that the answer; you don't
recall?
THE WITNESS:
right.
I don't recall at this point,
I apologize for not knowing, I honestly don't.
23
BY MR. BLACK:
24
Q.
25
His question is you don't recall
reviewing the autopsy report?
17
19
I don't.
When we go into the things that you looked
at, we may revisit that.
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JUDGE WELSCH:
have any objections to Mr. Andrews being designated in
the areas that Sea World is proffering him in as an
expert?
MR. BLACK:
We do, Your Honor, in all of the
areas that he's being proffered because -- do you want
to hear argument on it?
JUDGE WELSCH:
MR. BLACK:
Yes, sir.
As we stated in our motion, at that
10
time we understood based on deposition testimony that
11
Mr. Andrews thought his qualifications were in three
12
areas rather the than six or seven or eight that have
13
been put forth now.
14
JUDGE WELSCH:
Five.
15
MR. BLACK:
Five, okay.
Mr. Andrews should
16
not be qualified as an expert because he doesn't meet
17
the standard under Daubert of being able to provide
18
information that will assist you, the trier of fact in
19
resolving any issue in this case.
20
21
22
It may all be very interesting information but it

doesn't meet the standards for expert testimony.
Mr. Andrews lacks sufficient education to
23
constitute a basis for qualifying him in the areas that
24
he has listed.
25
science, and a masters in animal collections management,
He indicated he had a BS in social
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but in neither of those degrees did I hear were the
areas of expertise that he seeks to be qualified in.
That's partially untrue.
He seeks to be qualified
in exotic or animal collections management, but we
haven't heard how that area of expertise relates to
safety in any way and would qualify him to offer the
safety opinions that Sea World seeks in this case.
8
9
In addition to lacking education to qualify him,

he also lacks sufficient experience in developing and
10
assessing occupational safety, and particularly
11
occupational safety as it would relate to killer whale
12
trainers.
13
the AZA, but he is not on the AZA marine mammal TAG
14
which would be the group that would have or not have
15
standards governing killer whales, and he is not aware
16
of any specific standards related to killer whales.
17
understands that there are some general accreditation
18
standards.
19
He's not a member of any -- he's a member of
He
He is not personally familiar with any safety
20
standards or procedures, hasn't provided any indication
21
that he has personnel familiarity with any safety
22
procedures or standards used by organizations other than
23
Sea World during killer whale training.
24
25
Now, I understand that he may have experience with

safety procedures used by his park; but, of course, his
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park possesses no killer whales, and while he can talk
about operant conditioning and how what works, he hasn't
opined and provided any reliable methodology that we can
test his opinions, look at his opinions, do anything
other than just he can provide us subjective opinions,
but he hasn't applied any scientific principles or
methods to his analyses.
8
9
He doesn't have any basis in any valid scientific

field.
He has admitted that his assessments are based
10
almost entirely on anecdotal information.
11
the documents here, his assessments of safety and how
12
effective safety is based almost entirely on anecdotal
13
evidence.
14
Aside from
His assessments aren't refined enough to provide
15
any sort of conclusions or insights into animal trainer
16
safety that he seeks to offer.
17
Court any reason to understand that he has expertise
18
beyond the opinion -- and I won't necessarily say it's
19
expertise -- but the opinions that Mr. Tompkins or Ms.
20
Flaherty Clark or any other Sea World person has given
21
as lay opinions.
22
at Sea World, and so he knows about how they work with
23
whales, and now he doesn't work there.
24
a different facility, he works with elephants and other
25
animals, and by doing that, he somehow has some distance
He hasn't given the
His opinion is just based on he worked
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Now, he works at
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and perspective he can provide to the Court so the Court
can understand that when he says, you know, the trust
based relationship provides sufficient safety, that you
now trust Mr. Andrews because he's no longer a Sea World
employee.
He hasn't given you any principles or methods that
are required as part of Daubert.
You have a reliable
way of conducting your studies, something that somebody
else can verify, something that somebody else can
10
examine critically, and all we can examine critically is
11
ask whether his subjective analysis is a good enough
12
subjective analysis.
13
He can't retest, he can't test the effectiveness
14
of Sea World's safety program, at least not through any
15
testimony that Mr. Andrews hopes to offer.
16
The operant conditioning theory doesn't provide
17
any reliable insight relevant to the safety risks.
Mr.
18
Andrews couldn't say how operant conditioning would help
19
the Court decide that this is safe enough or not safe
20
enough.
21
The key basis of the model, as I said, is the
22
emotional connection or the relationship with the killer
23
whales that allows Sea World and Mr. Andrews to make
24
this subjective determination that it's safe enough, but
25
this emotional connection, of course, is an inherently
CARLIN ASSOCIATES
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subjective determination.
We can't test it, we haven't
heard anything about any known error rates to see
whether this connection provides a high enough level of
safety.
We haven't heard of any or couldn't get Mr.
Andrews to articulate any particular standards or
controls that would allow us to measure the
effectiveness of the operant conditioning and how it
provides for safety.
All we got was we can go to the
10
bottom line and compare interactions to incidents and
11
injuries.
12
Well, you know, we've heard that testimony before,
13
but I haven't heard how any of Mr. Andrews' expertise
14
gives him a special insight into that that he can both
15
explain to the Court, which I'm sure he has an
16
explanation but explain and do it in a way that the
17
Court is then left with knowing more than it knew before
18
he testified; that the Court has some greater
19
understanding.
20
So, essentially, what we've heard from the
21
testimony at trial thus far is a version.
I know we've
22
heard a version of trial and error.
23
and then we correct it.
24
way to identify mechanisms that trigger or lead to this
25
unpredictable behavior or behavior that has caused an
Something happens
Mr. Andrews doesn't give us any
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accident, caused an injury.
degree of scientific certainty when unpredictable
behavior poses a safety threat.
He can't say with any
Also, as to his data, which is also part of
Daubert, not only do you have to have a recognized
field, which I don't believe that all of the -- there
may be a field of animal behavior, there may be a field
of operant conditioning, but I'm not sure whether that
is a recognized field that provides in this case any
10
sort of scientific or testable basis to understand what
11
Mr. Andrrews did.
12
His evaluation of the data was based on reviewing
13
what documents Sea World has prepared, but his
14
evaluation is not based on any comparison.
15
explained how there is something in his expertise that
16
provides him a way to make a comparison and assess,
17
"Wow, this is really safe," as opposed to, "This is the
18
standard that we use in operant conditioning, this is
19
the standard we use in animal behavior to test, to
20
evaluate whether something is safe," which is, as I
21
understand it, the principal opinion that Mr. Andrews
22
would seek to give.
23
He hasn't
Now, he didn't have sufficient facts and data, he
24
didn't interview any eye witnesses to the incident
25
involving Ms. Brancheau.
He relied on the secondhand
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account provided by Mr. Tompkins.
the behavioral history documents in determining, you
know, the reason for the behavior that Tilikum
performed, and this is exactly what Sea World did on its
own evaluation.
was going on, we had no reason to expect it.
He looked only at the
It gave an opinion that this is what
What Mr. Andrews really is doing is seeking to
offer an opinion that a subjective incident report of
the kind that Sea World itself chose not to prepare in
10
the Tilikum incident, so now we're putting something in
11
writing to sort of figure out what's at issue, then they
12
can provide Mr. Andrews to provide an oral incident
13
report, if you will, that contains the same type of
14
subjectivity that we see repetitively throughout the
15
incident reports.
16
As far as the quality of Sea World's safety
17
practices, there's nothing that Mr. Andrews has provided
18
that explains how he would be able to evaluate whether
19
these documents and the practices themselves provide
20
sufficient occupational safety to address the concerns
21
regarding Ms. Brancheau's death.
22
The report and the opinion he seeks to offer will
23
be concerning how to protect trainers through using
24
operant conditioning, and this is something that we have
25
heard repeatedly from Sea World witnesses as to how they
CARLIN ASSOCIATES
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work, but there's no data that Mr. Andrews has looked at
that we have heard about that is anything other than the
documents that have been offered in this case.
He's failed under Daubert to take any hard look at
any sort of other potential abatement that could be
done.
feasible in the way OSHA offers or based on other
considerations, but there is nothing in his background
that would allow him to serve as an expert to describe
He does have an opinion that abatement is not
10
what a guardrail should look like or shouldn't look
11
like, whether a guard can be made long enough so it's
12
not a 20-pound guardrail that Ms. Flaherty Clark
13
described.
14
Finally, he failed to do any sort of analysis
15
other than just counting the number of rules that Sea
16
World has in place and to do anything with that
17
information other than saying that's a lot of rules.
18
There's not an analysis based on his expertise that
19
would purport expertise that would allow him to measure
20
how many rules or what types of rules somebody needs to
21
be safe enough because, again, he doesn't have the data
22
from which he can objectively quantify and compare Sea
23
World's safety record to that of other facilities
24
perhaps that own killer whales and to say anything other
25
than, you know, "This looks pretty good."
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So, if the Court finds it helpful for somebody to
testify to that, having looked at the same information
that Ms. Flaherty Clark or Mr. Tompkins and others have
looked at, and if the Court finds Mr. Andrews' opinion
to add some additional insight so that we haven't heard
the basis for it, and we haven't heard any sort of
testable basis for what he thinks would be subjective
opinion, that it's safe enough and this all makes it
safe enough.
10
So, we ask that Mr. Andrews not be qualified in
11
any of the areas listed.
12
those areas will assist you, the trier of fact, in
13
assessing the effectiveness of Sea World's safety
14
program.
15
Thank you, Judge.
16
JUDGE WELSCH:
We don't understand how any of
Let me just ask you real quick,
17
because I have not seen the report, are you saying
18
there's something in the report about an opinion as to
19
the incident involving Ms. Brancheau in terms of how
20
this happened or what the cause was?
21
22
MR. BLACK:
Yes, there is.
In fact, extensive
opinion on that, Your Honor.
23
JUDGE WELSCH:
24
Ms. Gunnin?
25
MS. GUNNIN:
Thank you, Mr. Black.
Let me just start with that
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question because I don't see any analysis, and I want to
address what Mr. Black has raised, but I don't see any
proffer as to the accident that happened to Ms.
Brancheau in February as part of my proffer as an
expert.
That is not what he is proffered as.
We would proffer him specifically in terms of
analyzing the cause of that.
We would proffer him in
terms of reviewing the behavior of Tilikum and the
history and with regard to whether that would have been
10
an act that would have been based on Tilikum's past
11
behavior.
12
JUDGE WELSCH:
I guess when you made the
13
proffer in terms of his expertise, I did not understand
14
any of the areas, the five areas that we talked about as
15
specifically dealing with the Tilikum incident in
16
February of 2010.
17
MS. GUNNIN:
Thank you.
Judge, as a first
18
thought on this Motion to Exclude filed by the
19
Secretary, I find it interesting that it was filed on
20
Monday of this week and that the beginning of the trial
21
when all of these things were known by the Secretary,
22
there was no filing of a motion.
23
interestingly very familiar to me.
24
like the one that we filed.
25
JUDGE WELSCH:
The motion is
It looks very much
I saw a similarity.
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MS. GUNNIN:
So, I'm glad I was able to give some assistance to
3
4
Yes, it's interesting, isn't it?
the Secretary in this case.

First of all, we did not seek to have Mr. Andrews
qualified to be an expert on exotic mammal management.
I believe that Mr. Black mentioned that as one of his
proffers.
clarify that for the record.
We did not profer that.
I just wanted to
But going to the heart of Mr. Black's argument,
10
really, I can think of a few things, but one is
11
certainly a theme that we've heard throughout this
12
trial, and that is that there is no scientific
13
methodology by which to base operant conditioning upon,
14
and that is really not the criteria.
15
expert testimony on other factors other than purely
16
scientific testimony.
17
would never have experts.
18
You can base
Otherwise, in most OSHA cases, we
But, furthermore, as pointed out in the filing in
19
the case law, you can base your expert status on
20
knowledge, skill, experience or training.
21
heard at length that Mr. Andrews does have the
22
knowledge, skill, experience and training regarding
23
working with killer whales, managing people who work
24
with killer whales, working on the safety aspects of
25
working around killer whales, working on enhancing those
CARLIN ASSOCIATES
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I think we've
1694
safety aspects, working on building protocols and
procedures to safely work around those killer whales,
and that he took those things he learned and went on to
another institution where he continued to apply them.
As Mr. Andrews has testified, he would consider
the operant conditioning and training and that theory to
be applicable to the animals he works with currently.
8
9
Furthermore, when it gets to comparator data,

there's not comparator data.
As the Secretary has
10
stated many times in this case, Sea World is the
11
industry.
12
World.
13
Worlds in America that Mr. Andrews could have gone to
14
and said, "Let me look at your killer whale program.
15
Let me analyze what you do and compare that to Sea
16
World."
17
There are not a lot of competitors for Sea
There are not other Sea Worlds, similar Sea
So, that data would not exist.
But, what Mr. Andrews did do is based upon his
18
experience, based upon on his consulting practice, when
19
he does work at other zoological institutions, he did
20
compare the safety protocols, the SOP's, the procedures,
21
the training methodologies.
22
upon having gone there, to what Sea World does.
23
He compared those, based
So, I think he does have some objective opinion to
24
provide the Court about what he knows of other
25
institutions and what they do and how does that compare.
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Is it just Sea World alone thinking that they're the
only ones doing operant conditioning, they developed it
and nobody else knows anything about operant
conditioning?
Court to understand that it is not something that Sea
World invented.
areas of zoological management, and I believe Mr.
Andrews has offered that testimony.
I think that would be helpful to the
It is a science that is applied in many
With regard to his objectivity, I think Mr.
10
Andrews has demonstrated he's not working at Sea World,
11
he has looked at what Sea World is doing now compared to
12
what he knew of Sea World when he was there.
13
important thing as a comparison.
14
zoological institutions, and I think that's information
15
that would be helpful to the Court so the Court would
16
understand operant conditioning, positive reinforcement
17
training.
That is an
He's looked at other
18
We would suggest that Mr. Andrews is well
19
qualified and that, in fact, the Court has previously
20
qualified the Secretary's expert who had no experience
21
at all working with killer whales in captivity, who had
22
no experience at all in the safety aspects of working
23
with killer whales, who had no experience at all in how
24
you would feasibly abate the condition of working with
25
killer whales.
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None of that was offered and, yet, the Secretary's
expert was qualified, and I would submit that Mr.
Andrews is qualified to be an expert in this case and to
render expert testimony.
JUDGE WELSCH:
Well, there is one aspect that I'm hearing, and
I'm not sure -- let me ask you, I'm assuming that I'm
going to be hearing -- there again, I have not seen this
report -- something to do with a comparison between
Thank you, Ms. Gunnin.
10
incidents or injuries versus the number of interactions,
11
and I guess what's bothering me is if that is the case
12
-- and I'm assuming that is going to be the case, at
13
least that's part of his report.
14
MS. GUNNIN:
15
JUDGE WELSCH:
Yes, Your Honor.

And I assume you're going to be
16
asking questions about that in terms of if he is
17
qualified as an expert, you're going to ask him to give
18
those opinions.
19
MS. GUNNIN:
20
JUDGE WELSCH:
Yes, Your Honor.

But, the problem is, I guess
21
what I'm hearing was that he didn't really do anything
22
other than relying upon information or just the numbers
23
that Mr. Tompkins provided to him in terms of
24
interactions and I guess maybe the injuries also.
25
So, I understand experts can rely upon hearsay,
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that kind of stuff in terms of forming their opinions,
but I guess I'm a little troubled with the fact that if
he's giving an opinion based solely upon that
information from Mr. Tompkins without doing any kind of
verification or independent study other than I think he
testified about it fit along with what he remembered
when he worked at Sea World and maybe subsequent
information that he received through whatever source.
Do you understand why I'm troubled with it?
10
11
MS. GUNNIN:
Yes, Your Honor, and I would like
to address that.
12
JUDGE WELSCH:
13
MS. GUNNIN:
Yes, please do.

Mr. Tompkins in his testimony
14
that has been presented in this case testified about his
15
method for coming up with the number of interactions.
16
He testified about how he went about to determine
17
injuries.
18
evidence, so the incident reports are there.
19
terms of methodology for how you figure out the number
20
of interactions with a killer whale, he testified about
21
that.
22
interactions, but Ms. Mairot yesterday testified about
23
her experience of the number of interactions she.
24
testified that that was similar to the number of
25
interactions that other killer whale trainers have.
He testified, and the incident reports are in

So, in
Not only did he testify about the number of the
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You
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can extrapolate that data, and you would come with up
with the number of interactions.
JUDGE WELSCH:
I understand, but other than
that, is there any reason I need to have Mr. Andrews --
are you qualified as an expert in providing that
information?
MS. GUNNIN:
No, Your Honor, and that is
information in his report, but it's not any information
that's any difference than the testimony that's
10
previously been provided, and you can give that whatever
11
weight you would so choose.
12
JUDGE WELSCH:
Well, the bottom line in terms
13
of Daubert, as we talked about or as I talked about
14
earlier when I qualified Dr. Duffus at the last
15
proceeding, I'm required under Daubert to act as a
16
gatekeeper in terms of permitting individuals to be
17
qualified as an expert.
18
Duffus, as I'm going to indicate with regard to Mr.
19
Andrews, what weight I'm going to give any opinions that
20
they render, that's going to be left up to me.
21
As I indicated, as to Professor
I will here decide whether or not I'm going to
22
accept those opinions into evidence as an expert
23
opinion.
24
I'm going to give such opinions and factors,
25
particularly with regard to Mr. Andrews.
Ultimately, I'll have to decide what weight
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At this juncture, what the Secretary has raised, I
believe for the most part goes to really an issue of
weight that I'm going to give his opinion.
But, I do find in terms of Mr. Andrews and based
upon the areas that have been proffered, I do find that
he meets the definition to provide expert testimony in
terms of I find that he is qualified to render opinions
based upon his skill and experience and that experience
is not only 15 years at Sea World but the experience
10
he's had subsequent even though it may not have directly
11
related to killer whales, as I asked the question before
12
in terms of the operant behavior.
13
There are certain principles that are being
14
applied, maybe the techniques have changed between the
15
various species and various animals, but there are
16
certain fundamental principles, and I think if I recall,
17
because I remember asking Professor Duffus also if he
18
recognized operant behavior as a behavioral technique or
19
science or study.
20
He recognized it as a valid study.
And, so I'm accepting Mr. Andrews, based on his
21
skill and experience.
I also find that the testimony is
22
reliable based upon those factors.
23
needs to be to the level that the Secretary is saying it
24
it needs to be mathematically precise in terms of being
25
reliable.
I don't think it
I think it may go to the weight, again, that
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I might give that opinion, but I don't know if the
standard that the Supreme Court has set down requires
that mathematical precision in terms of testifying as an
expert.
provide would be relevant to the issues that I have to
decide.
And, certainly, the opinions that he would
Those are the three factors that the Supreme Court
and Daubert have directed that I consider in terms of
accepting an individual as an expert witness.
And, so
10
based on those factors, I am accepting Mr. Andrews as an
11
expert in the areas as identified by Sea World as they
12
proffered him as an expert.
13
accept him as an expert.
14
is different.
15
MR. BLACK:
In those five areas, I will
As I say, the issue of weight
Your Honor, would you just for the
16
record repeat those areas of expertise so I can make
17
sure?
18
JUDGE WELSCH:
Ms. Gunnin, if I have them
19
written down correctly and went over them with you
20
correctly, the expertise is, one, the operant
21
conditioning and positive reinforcement in terms of
22
animal behavior and specifically with killer whales.
23
Killer whale behavior and training is the second.
24
third, working safely with killer whales area.
25
think we were a little broader in terms of working
CARLIN ASSOCIATES
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The
Then, I
1701
safely with large mammals was kind of a third area.
think it might be really part of the working with killer
whales also.
elephants and other mammals.
that applies to the killer whales, I've accepted him as
an expert in those areas.
is the feasible abatement method that was being
considered by the Secretary in terms of the issuance of
the citations.
But, Mr. Andrews certainly has worked with
10
Is that correct?
11
MS. GUNNIN:
12
JUDGE WELSCH:
13
MR. BLACK:
14
JUDGE WELSCH:
15
16
So, to the extent of how
And, the fifth and the final
Yes, Your Honor.

Those are the five areas.
And, that's what I have accepted
Mr. Andrews as an expert in.

MR. BLACK:
And has the Court issued any
17
limitations on the areas of opinions, or is it after
18
such opinions are perhaps given inappropriately, we
19
would move to strike?
20
incident involving --
21
JUDGE WELSCH:
For example, the Court raised the
Since I have not seen the
22
report, if you feel that a question or response goes
23
beyond the level of expertise that he's been proffered
24
in, then, I expect you to raise an objection, and I will
25
have to deal with that objection at that point in time.
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MR. BLACK:
JUDGE WELSCH:
Very good.
Thank you, Judge.
And, to make sure the record is
clear, then I'm denying the Secretary's motion to
exclude the testimony and report of Mr. Andrews.
5
6
Okay, with that being said, we're now at quarter

to five.
Let's go off the record for one second.
(Whereupon, a short discussion
JUDGE WELSCH:
10
the discussions, we're going to stand adjourned until
11
12
courtroom tomorrow morning at 8:00, and hopefully we
13
will finish this case tomorrow.
14
We stand adjourned.
We will be here back in this
15
---o0o---
16
(Whereupon, the proceedings were
17
Adjourned at 4:50 p.m.)
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In
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BY:__________________________
Norma Carlin
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----------------------------------- x
)
)
SECRETARY OF LABOR,
)
)
Complainant,
)
)
-vs)
)
)
)
Respondent,
)
)
)
------------------------------------x
12
VOLUME IX.
13
14
15
16
17
18
OSHRC DOCKET
NO. 10-1705
Before:
Judge Ken S. Welsch
Date:
Friday, November 18, 2011

8:00 a.m.
Place:

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APPEARANCES:
JOHN BLACK, ESQ.
Suite 7T10
(404) 302-5435
Suite 2400
(404) 525-8622
GEORGE COE, ESQ.
Suite 840
407-425-7118
17
18
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20
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24
25
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1706
I N D E X
WITNESSES
Name
Dold
Andrews
Direct
1708
1790
8
9
10
11
12
Redirect
Recross
1778
-
1788
-
1741
1830
---o0o---
6
7
Cross
EXHIBITS
Complainant's
C-14
C-15
C-16
Description
Monthly and Annual Recap

Andrews Report
Article Re: Precursors
Marked
Admitted
1832
1837
1916
1837
1839
1917
Respondent's
(None)
13
14
15
16
17
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25
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Morning Session
8:00 a.m.
JUDGE WELSCH:
8
9
Prior to going on the record in a discussion with

Counsel, it appears we have a little conflict, and so to
10
accommodate the conflict, we're taking a witness out of
11
turn.
12
time being, and we'll take the Company's next witness
13
earlier.
14
So, we're going to reserve Mr. Andrews for the
MR. BLACK:
Just for the record, we would
15
object to the extent that anything to Dr. Dold testifies
16
is used by the expert who is already on the stand and
17
was testifying before Dr. Dold's testimony.
18
JUDGE WELSCH:
So noted for the record.
If
19
there's something that comes up, you can renew your
20
objection.
21
22
So, does Sea World wish to call their next

witness?
23
24
25
MS. GUNNIN:
Yes, Your Honor, we call Dr. Chris
Dold.
---o0o---
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CHRISTOPHER M. DOLD,
JUDGE WELSCH:
Sir, for the record, could you
THE WITNESS:
Sure.
My full name is
Christopher Matthew Dold.
address is 405 Courtly Park Drive and that's in Winter
10
The last name, D-o-l-d.
My
Garden, Florida 34787.
11
JUDGE WELSCH:
12
Your witness.
13
MS. GUNNIN:
Thank you, sir.
14
---o0o---
15
DIRECT EXAMINATION
16
BY MS. GUNNIN:
17
Q.
Dr. Dold, where are you employed?
18
A.
I work for Sea World Parks and Entertainment.
19
Q.
And, what is your position with Sea World
20
21
22
23
24
25
Parks and Entertainment?

A.
I'm the Vice President of Veterinarian
Services.
Q.
And, if you could, tell the Judge what is
your educational background?

A.
No problem.
I received my veterinarian
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1709
degree from the university of Wisconsin, Madison, and I
graduated from the veterinarian program there in 2001.
Prior to that, I got my bachelor's degree from the same
university.
5
6
7
Q.
That's my education.
And, what is your experience working with
marine mammals?
A.
Sure.
I have been working with marine
mammals, I started in 1993 when I was still an
undergraduate, working at Mote Marine Laboratory,
10
working with the biologists there.
11
before I was a veterinarian.
12
This was, of course,
After I finished my undergraduate studies, I
13
worked as a marine mammal trainer at a facility in
14
Hawaii.
15
the bug to become a veterinarian, at which time I went
16
back to Wisconsin and got my veterinarian degree.
I did that for a couple of years before I got
17
After graduating from veterinary school, I
18
went into private practice for a couple of years, and
19
then shortly thereafter was an intern through the
20
University of California, Davis, stationed at the Marine
21
Mammal Center in Sausalito, California, as a veterinary
22
intern in marine mammal medicine and pathology.
23
After completing that internship, I moved to
24
San Diego, and I worked with the U.S Navy's marine
25
mammal program through the National Science Foundation
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as a National Research Council post-op researcher and
clinician, and the emphasis of my work at that facility
was examining methods marine mammals, specifically
cetaceans, methods of monitoring those animals under
anesthesia as well as new approaches for cetacean
anesthesia.
And, after working there for about a year and
a half, I moved to Orlando where I became employed by
Sea World, and I have been with Sea World now for
10
six years.
11
JUDGE WELSCH:
12
Can you spell that?
13
THE WITNESS:
You used the word, "cetacean."
I sure can.
It's
14
C-e-a-t-a-c-e-a-n (sic), and cetacean is just the family
15
for whales and dolphins.
16
BY MS. GUNNIN:
17
Q.
And, so included with your water work with
18
marine mammals, if you could describe what variety of
19
marine mammals have you worked with?
20
A.
Many of them, certainly the general classes
21
and orders, but both pinnipeds, seals and sea lions as
22
well as a few different species, bottle nose dolphins,
23
beluga whales, the white whale, killer whales, dolphins,
24
several stranded species, certainly manatees.
25
And then my practice is not and has not been
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limited to marine mammals, certainly.
In our work at
Sea World, we work with lots of different species, both
terrestrial as well as aquatic and marine species of
animal, but most of the species commonly found in zoos
and oceanaria and those that strand commonly, I've been
very fortunate to have an opportunity to work with.
Q.
killer whales?
A.
I do.
10
Q.
And, if you could describe what kind of work
11
12
You testified that you work specifically with
do you do with killer whales?

A.
I, along with the other veterinarians and
13
veterinarian personnel with regards to the killer
14
whales, our primary charge, our responsibility, of
15
course, is providing for the health and well being of
16
those animals, specifically offering clinical care to do
17
everything we can to maintain their health.
18
The focus of our practices are not just
19
reactionary medicine but also an extensive preventive
20
health program that we have in place for those animals.
21
Q.
What is the preventative health program?
22
What kinds of things would be done with the killer
23
whales on a regular basis?
24
25
A.
So, our killer whale preventive health
program is, I guess I would describe it as the most
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intense of the species that we work with in our facility
in terms of its regularity.
on every killer whale at least once a month, 12 months
out of the year, and that includes not just a visual
exam, but a physical exam, usually largely encompassing
a visual exam, and we're not testing the animal's
vision.
8
9
We do a health assessment
We're a step back and just looking at the

animal and assessing it visually ourselves.
But, we
10
will also do routine diagnostic sampling during those
11
monthly exams, and that would include a blood sample, so
12
we'll do standard hematology and chemistry like you
13
would get when you would see your doctor for your annual
14
exam.
15
We will collect other samples of bodily fluid
16
so that may include a fecal sample, a sample of the
17
fluid from the animal's stomach, what we refer to as a
18
gastric sample, and then commonly, we'll get a forced
19
exhale breath sample.
20
And, this is a practice that is widely as
21
essentially a standard for whale and dolphin medicine
22
which is you look at these sites around the animal,
23
essentially testing every body system that you can
24
access or survey on a regular basis with the thought
25
being that a preventive health program, a preventive
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health monitoring program will give you an early warning
in an animal -- an early warning of disease, I should
say, in an animal that can be exceptionally challenging
to find disease otherwise.
Remember, these animals can't tell us when
they're sick verbally just like a person could.
we don't have that foresight.
foresight necessarily of a person going to the doctor
and saying, "I just don't feel so good," that internal
10
And, so
We don't have the
control.
11
So, we rely heavily on our routine preventive
12
health surveillance program to try to catch things
13
early.
14
I should mention we also don't have a breadth
15
of clinical data to refer to.
You know, we use the
16
animals as their own sort of control when you're looking
17
for if there's a disparity in a certain blood value
18
within the animal.
19
set around each individual animal so we can watch trends
20
in their blood work and maybe get an early warning there
21
where that individual animal may have a problem;
22
whereas, in the medical field, we have millions of
23
people contributing to a database so their normal
24
reference ranges, if you will, and their samples are a
25
bit more robust which allows doctors then to sort of
So, we try to build a robust data
CARLIN ASSOCIATES
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1714
back off on the frequency with which they check us.
So, doctors still like an annual exam on us,
so in killer whales specifically, we like a monthly
exam.
Q.
Dr. Dold, do you recall speaking to a
compliance officer from OSHA named Lara Padgett during
the OSHA inspection that was being conducted that was
part of this case?
A.
I do, yes, certainly.
10
Q.
Do you recall where that conversation
11
12
occurred?
A.
Yes, it was in one of our buildings on
13
property.
14
every once in awhile, but it was just outside of the Sea
15
World Park here in Orlando.
16
17
18
Q.
I don't remember.
That building changes uses
And, do you recall when you spoke to her
about?
A.
If I recall correctly -- and I think I do --
19
the nature of our conversation and discussion was
20
something similar to what you and I just discussed,
21
essentially what is our husbandry care of the killer
22
whales, what do we do on a regular basis, what kinds of
23
procedures do we do with the whales, and then we spent
24
some time talking about Tilikum's health specifically,
25
and I remember bringing in our -- we have a computer-
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based animal records system, an electronic animal
records system, where we take all of our clinical notes.
And, we spent some time going through Tilikum's health
specifically.
Q.
And, during that conversation, did you
describe what kind of contact or how close you would be
with the killer whales while doing all this preventative
care?
A.
Yes, I think we did.
We described some of
10
the details of how we collect procedures and the
11
approaches that we use for our routine care, and I would
12
say I think we spent some time also talking about some
13
of the nonroutine procedures that we do.
14
15
16
Q.
When you say, "nonroutine procedures," what
kinds of things would those be?

A.
First of all, a routine procedure would be
17
those that I described that we would do on a monthly
18
basis.
19
certainly a urine sample, and we collect urines, or the
20
trainers anyway collect urines far more regularly than
21
once a month in many case.
22
So, a blood sample, forced exhale breath sample,
A nonroutine procedure would be something
23
like any therapeutic procedure that we would embark on
24
that wasn't simply giving oral medications to one of the
25
whales.
That might mean injectable medication, inter-
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muscular injection, it might mean an abdominal
ultrasound.
dolphins regularly because they're sort of made for
ultrasound.
We use ultrasound machines in whales and
They live in a water environment, they don't
have any hair, and the ultrasound probe just takes a
beautiful picture of the inside of the animal.
will do that with some regularity.
So, we
That's a fairly -- that's sort of routine to
10
nonroutine procedure.
11
we might engage in would be an endoscopic exam, so a
12
gastroscopic exam on a whale or dolphin, and that's
13
where you're passing a flexible endoscope through the
14
mouth and down into their stomach to look or a bronchial
15
scopic exam where you're passing a scope down through
16
the blow hole into the airways to look there for any
17
signs of problems.
18
Q.
And, the least routine procedure,
And, how do the killer whale trainers assist
19
you in all of this medical care that's provided for the
20
killer whales?
21
A.
Well, I would say it's not an exaggeration to
22
say that the trainers facilitate and a make possible the
23
kind of care, the standard of care that we provide to
24
the whales and dolphins at Sea World today.
25
We would not be practicing the medicine the
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way we practice medicine today without the trainers.
And, what that specifically means is, it is through the
relationship that the trainers have with the animals
that they work with on a daily basis, the vocabulary
behaviors that the trainers have constructed and not to
over use the word, but train the animals through
conditioning to participate in that allows us to do the
practice that we do.
It's worth backing up for a second.
When we
10
do these monthly health assessments, when we collect a
11
blood from a killer whale once a month, that is done
12
with the animals participating fully in the procedure.
13
The veterinarian's role in that is the
14
phlebotomist.
We're the ones collecting the blood.
15
is the trainers who asked the animal to put themselves
16
into a position that facilitates that blood collection.
17
And, when they do it, if you all haven't described it
18
over the last couple of weeks, the animal rolls over
19
onto their back, they place their tail flukes on a ledge
20
or near the trainer, and the trainer will hold onto the
21
tail flukes, mostly to stabilize those flukes in
22
position.
23
17 feet away, however long the whale is.
24
veterinarian steps in and places the needle into the
25
blood vessel and collects the sample.
The animal's head is whatever it may be,
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It
1718
That is a remarkable thing in veterinarian
medicine that you have the animal actually participating
in the sample collection, if you will, and that is only
accomplished -- I guess the best metaphor is you can
imagine if you were a pediatrician and the child came in
and essentially laid their arm out and left it there for
you, for the nurse or the phlebotomist in this case to
place a needle in it and collect a sample.
remarkable thing.
10
It's a very
And what we know is that it is good for the
11
animal's health, it's good for our safety, and it's just
12
very good practice because you have what could be a very
13
stressful procedure being performed under the calmest
14
and most routine of circumstances.
15
And, we know that that's a fantastic way to
16
practice medicine because it's effectively -- whereas, I
17
would characterize it as stress free.
18
opposite of small animal practice where a dog comes in
19
the dog doesn't want to give blood, and they're being
20
restrained and held for the sample, which also happens
21
in a routine manner.
22
MR. BLACK:
It's the polar
It's good practice.

Your Honor, we would like to
23
object for the record to the extent that Dr. Dold is
24
giving anything that looks like or sounds like anything
25
expert testimony.
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He hasn't provided any expert report in this case
and has not disclosed expert opinion in any sort of
report.
that this is the best way to take care of the animals
and it's the best medical practice or good medical
practice.
So, his last statement that it's his opinion
THE WITNESS:
Sorry, veterinary practice?
MR. BLACK:
Veterinary practice.
9
10
Thank you,
sir.
We would object to any such testimony like that
11
about general opinions.
12
he does in his job at Sea World, we, of course, don't
13
object, but when he starts venturing into the general
14
expert opinion, we would wholeheartedly object.
15
JUDGE WELSCH:
If he wants to talk about what
I'm not considering him as an
16
expert in those areas.
17
opinion.
But, I'm not accepting it as an expert
18
opinion.
He has not been proffered as an expert.
19
a veterinarian.
20
21
22
MS. GUNNIN:
So, I'm just accepting it as his
He is
And, Judge, he can certainly speak
from his experience as the veterinarian providing care.

JUDGE WELSCH:
I understand.
23
opinion as a veterinarian.
24
BY MS. GUNNIN:
25
Q.
I'm accepting his
Go ahead.
Dr. Dold, with regard to the stress free
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environment that you described as being able to treat
the killer whale, why is that important to you to be
able to give medical care in that kind of stress free
environment?
A.
There are several reasons why it's important.
I think the most important thing when we are working
with the animals as veterinarians as well as animal
caretakers is animal safety and human safety.
Our job is to provide for the health and well
10
being of the animals, right?
11
for these animals, and so we have to do everything we
12
can to make sure that they have a stable, enriching life
13
and that the clinical care we provide them is effective
14
and not wholly innocuous or challenging or stressful.
15
We want to make the procedures smooth, calm and easy.
16
We're responsible stewards
And, so to draw a picture, it is much better
17
for us from a human safety standpoint and from an animal
18
health standpoint and, quite frankly, from the quality
19
of the sample that we collect, if it's a blood sample,
20
for us to collect that sample with the animal
21
participating willingly, laying there flat as part of
22
their normal routine than it is to do the alternative
23
which would be to put them onto a medical floor forcibly
24
if we had no trainers or hadn't conditioned any of these
25
behaviors forcibly on a medical floor, lift them up out
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of the water or put them into a pool or lower the water
and then go in and try to restrain or at that point then
have to lift the animal's tail get access to it.
We switch from a negative, clearly negative,
and what I would argue to be a dangerous procedure akin
to bleeding a fractious horse to working with an animal
that is calm and relaxed and gives a sample that does
not show any evidence of stress, has no aberrations
associated with that animal's well being that might be
10
incurred through the process of this negative procedure.
11
They now have the opposite relatively
12
positive procedure for the animal, and what I'm getting
13
from that animal diagnostically is a sample of that
14
animal otherwise normal -- this is part of his normal
15
routine, and if he has any evidence of disease, that
16
would be the only aberration I see in that animal's
17
blood work.
18
that is much safer than would otherwise be collected.
19
Q.
And, again, it is collected in a manner
In terms of doing certain procedures with the
20
killer whales, what part of the diagnostic is done by
21
the trainer and what part would be done by a
22
veterinarian?
23
A.
24
25
So, just to be clear, the diagnostic work is
all done by the veterinarians and veterinary person.

Q.
Let me ask that better.
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A.
Yes.
Q.
In terms of collecting samples for diagnostic
3
4
work, who would collect what samples?

A.
So, that's very easy.
In our practice, the
veterinary personnel collect blood from the killer
whale.
collect other samples, such as gastric samples.
Trainers will not uncommonly collect the gastric sample.
Certainly, urine samples.
We will work with and rely on the trainers to
We collect urine, not just
10
diagnostically but also part of our assisted
11
reproductive program, our reproductive research program,
12
and so the trainers work largely in that program,
13
condition the behavior to ask the whale to slide up into
14
the shallows and use a urine cup and to collect urine
15
from the whales.
16
The trainers do that.
Where we do catheterize, where we have a
17
sample where we would need to pass a urinary catheter in
18
order to collect a sample, that would be a veterinary
19
procedure at that point.
20
personnel performing that.
21
sample that I referred to, it's not uncommon to have the
22
trainers collect that for us also.
23
24
25
Q.
We would have veterinary

The forced exhale breath
Let me stop you there.
Is that sometimes
referred to as the blow hole?

A.
It is, yes.
I don't like that term so I keep
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1723
calling it forced exhale breath.
blow sample.
So, yes, this is a
You know, smaller ancillary things that we
might perform, the trainers might do, would be any kind
of other easily collected samples.
project where we were looking at the components of
killer whale saliva, classically in other cetaceans,
other whales and dolphins, that's collection, you know,
with a gloved hand, grabbing some saliva and doing that.
So, say, we had a
10
That would lend itself to a trainer collecting that
11
sample.
12
We would probably do something like that.

So that summarizes most of it.
13
BY MS. GUNNIN:
14
Q.
15
program.
16
A.
And, you mentioned the assisted reproductive

What is that?
Dr. Todd Robeck.
We have Sea World Busch
17
Gardens Reproductive Research Center under the lead of a
18
PhD DVM Doctor of Veterinary Medicine, Theriogenologist,
19
Dr. Todd Robeck.
20
That program is part of our conservation work
21
and also our sustainability program for the populations
22
of whales and dolphins, not just within the Sea World
23
Parks and Entertainment family but globally.
24
responsibility is stewards of this resources.
25
privilege that we have is to try to do everything we can
CARLIN ASSOCIATES
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Our
The
1724
to maintain genetic diversity within these populations
of animals.
as we possibly can.
That means reassorting the genetics as well
That means breeding male killer whales on one
side of the world with female killer whales on the other
side of the world, and it is much easier for us to breed
two animals if we move the sperm, the frozen sperm than
it is if we move the actual whales themselves.
So, it's through our assisted reproductive
10
technology program that we can do artificial
11
insemination, we can collect semen from one animal on
12
one side of the world, freeze it and then move it to
13
another facility and then inseminate a female or bottle
14
nose dolphin or Pacific white sided dolphin with a
15
endoscope.
16
Then, that procedure would be coordinated.
17
Of course, it requires fairly robust monitoring of the
18
female that you're working with.
19
would be doing -- and you can stop me at any time
20
because I'll just go through the whole procedure.
21
ultrasound and the procedure itself is commonly
22
performed -- and this gets back to the remarkable work
23
that the trainers do and the relationship that they have
24
with the animals to have that whale or dolphin
25
participating willingly in this procedure where an
CARLIN ASSOCIATES
So, in that course we
(216) 226-8157
We do
1725
endoscope is passed through the cervix and into the
uterus, and then the sample is deposited, and then that
whale would be inseminated that way.
participate in that voluntarily under operant
conditioning.
Q.
Our female whales
Specifically, at this park here in Florida,
have there been killer whales that are participants in
that program?
A.
There's actually one killer whale right now
10
who is being prepared for artificial insemination.
11
have done artificial insemination attempts in the past
12
here in this park in Florida, yes.
13
We
Q.
Has Tilikum been involved in a program in the
15
A.
As an contributor, yes.
16
Q.
So you have collected from Tilikum?
17
A.
Yes.
18
Q.
And, who could have collected the sample?
19
A.
The trainers collect the sample.
20
Q.
Is that part of voluntary participation by
14
21
22
past?
the animal?
A.
That again is a conditioned behavior, yes.
23
It would be one that there's no restraint involved in
24
the procedure, and the animal willing participates in
25
that procedure.
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1
2
Q.
Prior to February 24, 2010, had Tilikum been
participating in that?
A.
Yes, he had.
Q.
How often would you have the animals, the
killer whales in Florida, participating in that
reproductive type of procedure?
7
8
A.
The procedure itself, to say that
reproductive procedure?
Q.
I guess to look at it as a whole.
10
A.
In its entirety, it's sort of two things.
11
Q.
You're collecting --
12
A.
It's an ongoing process, and then it's a
13
periodic process.
14
infrequently.
15
they raise their calves for another year and a half to
16
two years after that.
17
The actual insemination happens
Killer whale gestation is 17 months, and
So, there is not a lot of -- we're not
18
walking up to females once a month or once a year and
19
inseminating them.
20
participate in, that's part of their vocabulary, it's a
21
part of their repertoire.
22
of those behaviors in some part of it in its entirely
23
happens -- it may be an exaggeration to say all the
24
time, but it's ongoing, just as every other behavior
25
that the whales engage in, clinical or not, husbandry or
However, the behaviors that they
So, engaging in the training
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1727
not, those behaviors are being maintained and worked and
parts of them are being worked and trained as part of
any of those animals' daily exercise.
Q.
So, when they have the once-a-month routine
examinations, for instance, they're not just doing that
behavior once a month?
A.
MR. BLACK:
JUDGE WELSCH:
10
That's right.
Sustained.
Rephrase your
question.
11
BY MS. GUNNIN:
12
Q.
13
Objection leading.
How often are they practicing the behavior
for diagnostics that are performed once a month?
14
A.
15
MR. BLACK:
Objection.
16
MS. GUNNIN:
Well, I'll rephrased it.
17
JUDGE WELSCH:
18
19
It could be as often --
Do you have any way of knowing
how often those behaviors are?

THE WITNESS:
I couldn't give you a number how
20
often each individual behavior is being trained.
21
don't know how often every single behavior is being
22
trained.
23
of regularity as far as behavioral maintenance.
24
25
But, they're all happening with a high degree
And, certainly, they will also train brand new

behaviors, and when a behavior is new for an animal --
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and I'm going to leave killer whales here for a second
and we'll talk about, say, bottle nose dolphins.
So this is an example of what can be trained in
these animals, and it shows -- I believe it speaks
directly to again the relationship that trainers have
with not just whales but also with dolphins.
MR. BLACK:
this testimony again.
about what is done with bottle nose dolphins related to
10
11
12
13
Your Honor, we would object to

Now, we're talking about opinions
what's done with killer whales.

That's clearly beyond the scope of his nonexpert
testimony about killer whales.
JUDGE WELSCH:
Let's get back to the question.
14
The question you asked was how often their behaviors are
15
trained.
16
THE WITNESS:
Behaviors are trained daily.
17
MS. GUNNIN:
And, then, I think he testified
18
previously that he was a marine mammals trainer as well
19
as in his past experience beyond just being a
20
veterinarian.
21
JUDGE WELSCH:
What I don't understand and what
22
I think Mr. Black is objecting to is he started into an
23
example dealing with dolphins and I don't know how that
24
relates, if it does at all, to the killer whales in the
25
issue that I have do decide.
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MS. GUNNIN:
difference.
bottle nose dolphins.
I can ask if him if there's a
He has testified that he's worked with
JUDGE WELSCH:
I don't disagree, he's worked
with probably all the animals out there, including
killer whales and dolphins and everything else.
disagree with that, but let's stay focused on the killer
whales if we can.
THE WITNESS:
I don't
Sure, I can do that.
10
So, I don't know how often each individual
11
behavior is trained, but it's trained continually, and
12
it's trained daily.
13
So, let's use the blood collection sample; blood
14
sample collection behavior as an example.
15
animal rolls over on its back and flukes are presented
16
for the blood sample.
17
Remember, the
That behavior, I say with a high degree of
18
certainty is trained at least seven times in a week.
19
That behavior is worked all the time, and it isn't just
20
associated with a blood draw.
21
present constantly.
22
They will work the fluke
I don't know if that answers your question, but
23
it's an ongoing process, and it happens regularly,
24
independent of any samples that we collect.
25
BY MS. GUNNIN:
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1730
1
2
3
Q.
teeth?
How about the health of the killer whale's
How is that maintained?
A.
Killer whale teeth are soft, and in both wild
and in the animals in our collection, killer whales will
erode the surface of their teeth, exposing the pulp
cavity, and that can be and is a common management
concern of ours, and the way it is managed is that the
teeth are regularly flushed.
cavity.
10
We flush out the pulp
So, just like a human tooth, a killer whale
11
tooth is hard on the outside, soft on the inside so the
12
trainers will once or twice a day use a bacterial static
13
antiseptic solution sometimes.
14
use saline water to flush out that pulp cavity and
15
remove any debris that's within the pulp cavity.
16
17
18
Q.
Sometimes, they'll just
How close would they need to be to do that
procedure?
A.
Well, the way we currently do it, they are
19
right next to the animal's mouth, and they usually have
20
a hand on the whale's chin, and they use a water pick,
21
modified in some cases, and it depends a little bit
22
where you go from park to park, the tool they're using
23
to flush the tooth out.
24
where they have the animal with their chin resting on
25
the side of the pool and they may not keep constant
But, the behavior is the same
CARLIN ASSOCIATES
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1731
contact with their hands all the time, but they will use
their hands to ask the whale to put its face in position
where they can then pass the catheter and flush out that
pulp cavity.
Q.
How often would that need to be done?
A.
It really depends on the individual animal,
it depends on the individual tooth, but it's not
uncommon for that to be a twice-a-day procedure.
Q.
And, are you ever involved in moving,
10
actually physically moving a killer whale from one
11
facility to another?
12
A.
Certainly.
13
Q.
What is that process?
What kind of contact
14
do you need to have with a killer whale to physically
15
move the killer whale from one facility to another?
16
A.
There's substantial contact associated with
17
that procedure.
What we will do is we have a medical
18
pool -- what we refer to as a medical pool, especially
19
the veterinarians refer to it as a medical pool -- with
20
a lifting bottom.
21
deep, sort of the size of this floor right here in front
22
of us.
It's about 40 feet wide by 24 feet
23
So, with what procedure, the whale will come
24
into the medical pool, we will lift it so it's shallow,
25
people will go in, they will slide a stretcher down
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1732
underneath the whale.
swim into the stretcher, and then we pick the whale up
with a crane.
The whale will actually sort of
We lift them over into a transport box which
is a watertight box that is half filled with water so
the animal will be half suspended in their stretcher and
half suspended by the water that they're in, and then
that entire unit will then be loaded onto whatever the
transport platform we might be using is.
10
During the transport, the animal will have a
11
caretaker assigned to it, one of several caretakers, and
12
in that instance, we're just keeping the whale wet
13
throughout the course of transport.
14
There is always a veterinarian associated
15
with those animal moves.
16
appetite, basic diagnostic information.
17
simple, it's a sort of heart rate, respiratory rate kind
18
of thing.
19
We're there to observe

It's very
Heart rate is hard to assess in that context.

And, then, the unloading of the whale is
20
effectively the inverse of everything I've just
21
described to you.
22
whale, walking it into the stretcher.
23
a trainer also serving as the focal point for where the
24
whale is supposed to go.
25
So, you have people right next to the

You usually have
We work hard when we do those transports; the
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trainers work hard.
veterinarians are mostly there in case there's a
problem.
behavior, the going into the stretcher well before we do
any kind of a transport so that it's as calm and easy
for the animal as possible.
Q.
I keep saying "we."
The
The trainers work hard to again train that
With regard to Tilikum, have there been some
changes in how you provide medical care for him after
February 24, 2010?
10
A.
Philosophically, no.
Tilikum is a killer
11
whale just like any of the killer whales in our system.
12
We provide veterinary care for him in exactly the same
13
fashion that we do with any of the other whales in our
14
system.
15
The approach to sample collection,
16
effectively, and tooth flushing at this point, which is
17
a management issue done by trainers -- it is not
18
currently a veterinary procedure to do the tooth
19
flushing -- it's different now because we have limited
20
the number of places within the facility where we
21
approach Tilikum to effectively two.
22
Most of Tili's procedures are done now in the
23
medical pool.
That includes the tooth flushing, it can
24
include blood sampling, and then we have one other
25
location which is in the immediate adjacent pool, what
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we refer to as E Pool in a corner where there is one of
the closest places where his flukes can get to the wall
for blood sampling, and the veterinarians can most
easily stand and reach over and collect the blood sample
without putting themselves too far over the wall if you
will.
7
8
9
Q.
And, if you could describe that wall that
you're talking about?

A.
Sure.
The wall is about a two-and-a-half-
10
foot wall.
It's probably half of one of these walls
11
just for reference.
12
Q.
And, about how wide would you estimate?
13
A.
One and a half times as wide as this
14
(demonstrating) one by four.
15
wide, yes.
16
17
18
Q.
Eight inches, ten inches
Twelve inches.
Have you had to have some close contact with
Tilikum since February 24th for any medical procedures?

A.
We have.
I believe he's gotten injectable
19
antibiotics once, one course of injectable antibiotics
20
since February 24th in the last two years.
21
was on injectable antibiotics one time.
I think he
22
And our approach is not the actual physical
23
approach to Tilikum for a procedure like that, which I
24
would again consider to be a nonroutine procedure, is
25
not different than it would be for any other whale that
CARLIN ASSOCIATES
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we would be doing that procedure with.
have and, again, that has not changed.
Q.
And, so, yes, we
And, if there were to be some other emergency
type of situation, with Tilikum, would you need to have
close contact with Tilikum to provide medical care?
A.
Yes, we would.
Q.
And, would you be able to do that behind a
8
9
protective barrier?
MR. BLACK:
Objection, calls for speculation.
10
We don't know what procedure we're talking about, we
11
don't know --
12
JUDGE WELSCH:
13
BY MS. GUNNIN:
14
Q.
15
16
Sustained.
What kind of procedure might require you to
have close contact with Tilikum?

A.
Any of the nonroutine procedures that I have
17
described.
So, injectable antibiotics, injectable
18
medication of any form, intermuscular injectable
19
medication of any form, the difference being that when
20
we give an injection into the musculature, we go into
21
the whale's back, the big muscle belly back there,
22
endoscopy of any way, shape or form, be that of his
23
stomach or of his respiratory tree, a more advanced
24
dental procedure, such as a tooth extraction, that would
25
be a nonroutine procedure that would require hands-on
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1
2
close contact with Tilikum.

Q.
And, would you be able to do any of those
procedures that you have just described behind a
protective barrier?
5
6
7
A.
If I had a protective barrier in front of me,
I could not do any of those procedures.

Q.
And, why not simply treat all the killer
whales, primarily Tilikum, in the manner that he's now
being treated in the medical pool or in a corner of E
10
Pool for those procedures?
11
the killer whales?
12
A.
Why not do that with all of
So, from a perspective where Tilikum now has
13
a reduced number of access points, I would say a very
14
restricted number of access points, that's not the
15
appropriate way for us to manage the rest of the
16
population of whales.
17
I believe that the best thing that we have --
18
and this speaks again to the trainer relationship, the
19
maintenance of these routine behaviors that we rely on
20
heavily -- I'm going to digress for just a second to say
21
that the behaviors are not automatic.
22
The behaviors that they do are -- we rely on
23
the whales to participate in these behaviors when they
24
feel their worst.
25
procedures once a month when the whales feel great and
It isn't just -- we do routine
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everything is going along hunky-dory.
We also need to
do these procedures -- I need to get a blood sample on
the whale that feels terrible and doesn't want to eat.
So, there's no food reinforcer for this behavior
whatsoever.
standpoint, human and animal, to work solely based on
the relationship that they have with that trainer to a
position where they will roll over and present their
tail fluke, so that we can collect a sample so that I
We rely to that whale from a safety
10
can have a first early window into what's going on with
11
this particular animal, and blood is effectively the
12
best first test that we can do.
13
We can do a lot with blood, but we will just
14
get a simple screening test to find out what body system
15
is affected here.
16
relationship that the trainer has with that animal that
17
they will do it when everything else -- when they don't
18
want to do anything else.
And, it is solely through the
19
Also, the trainers need options.
20
restrict those options, a sick whale is in a pool way
21
far away from the medical pool, but now we've decided
22
that all medical procedures can only happen in this
23
confined space, this one single pool.
24
that we're going to get that sample goes way down if the
25
expectation is then that animal is going to move from a
CARLIN ASSOCIATES
If we
The likelihood
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1738
distant part of the facility all the way over to the
medical pool to give us that a sample.
So, I would not create a system that
restricted our access points to all the whales in a way
where we had limited physical contact or more highly
limited physical contact, limited access points, places
where we could work the animals in such a way that it
would interfere with those options and the variability
that we rely on heavily in order to -- in times of just
10
basic training and maintenance, but most importantly at
11
times where there's a critical need for that sample.
12
Q.
Do you rely on the trainers to give you sort
13
of the first indication that a killer whale is not
14
feeling well; that they may need medical care?
15
A.
We rely heavily on --
16
MR. BLACK:
17
JUDGE WELSCH:
Overruled.
18
THE WITNESS:
The trainers are the advocates
Leading.
Go ahead.
19
for the animals, just like the parent is the advocate
20
for the child in pediatric medicine, the owner is the
21
advocate for the dog in small animal medicine, the
22
trainers are the advocate for the whales.
23
are with them every day, and the relationship that they
24
have with those animals, the contact that they have with
25
those animals, they are the people who know when
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The trainers
1739
something is wrong, and I've said now several times,
knowing early only helps us provide better care.
Our sort of reactive capabilities with regards to
killer whales are limited.
Surgery, general abdominal
surgery to remove a foreign body is not an option for
us.
enough.
anesthetize them generally.
killer whale, so if that killer whale has something
General anesthesia, there are no machines big

We can sedate killer whales, we cannot
I cannot do surgery on a
10
wrong with it, I need to know early, very, very early in
11
the process.
12
So, we put a great deal of emphasis on the sensory
13
-- the trainers noticing something slightly wrong with
14
one of their whales, and we as a team have a culture and
15
a very strict policy that if you see something even
16
remotely unusual with your killer whale or any of the
17
killer whales, the first folks you let know are the
18
veterinarians, and what that does for us is to trigger
19
our diagnostic cascade at the very outset.
20
If you think something is wrong, something very
21
well could be, and you should at least operate as though
22
something is wrong.
23
physical exam and start down our path of the diagnostic
24
cascade.
25
So, we will go ahead appetite a
I said it already.
So, the trainers being able to observe their
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animals, the ones they work with every day, the ones
they are the advocates for, not just quantitatively, but
qualitatively as well as they possibly can is part of
our culture, and it is also part of the way that we
provide what I consider to be very good care of these
whales.
MS. GUNNIN:
(Pause) That's all the questions I have, Your
9
10
Judge, if I can have a minute.
Honor.
JUDGE WELSCH:
11
five-minute break.
12
be back at 9:00.
Thank you.
Why don't we take a
We stand adjourned for five minutes,
13
14
with other persons who may be called later as witnesses
15
in this case.
16
THE WITNESS:
Understood, understood.
17
18
19
20
JUDGE WELSCH:
Dr. Dold, I remind you you're still under oath.
21
THE WITNESS:
Yes, sir.
22
JUDGE WELSCH:
Mr. Black?
23
MR. BLACK:
Thank you, Judge.
24
---o0o---
25
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CROSS-EXAMINATION
BY MR. BLACK:
Q.
Good morning, Dr. Dold.
A.
Good morning, John.
Q.
You work for SEA Corporation, See World
Entertainment?
A.
Sea World Parks and Entertainment for the
last -- well, since we became Sea World Parks and
Entertainment, yes.
10
11
Q.
And, that encompasses all three Sea World
parks for the killer whales?
12
A.
It does.
13
Q.
California and San Antonio?
14
A.
Yes, sir, and Busch Gardens.
15
Q.
And Busch Gardens.
16
17
And, your work, you do
veterinary work at each of those parks, right?

A.
Currently, I do veterinary work -- I can do
18
veterinary work at each of those parks.
We have a staff
19
of 14 veterinarians that work in the parks.
20
Q.
Do you oversee that staff?
21
A.
I do.
22
Q.
And, you know what kinds of things they're
23
24
25
doing at those parks?

A.
My greatest familiarity is with the Orlando
park, since I'm based here in Orlando, but, yes.
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1
2
Q.
But, they would report to you if anything
unusual happened at one of the parks?
A.
From an animal health standpoint, yes.
Q.
Or from difficulties they were having getting
test results or obtaining samples from the animals, they
would report that to you?
7
8
9
A.
Yes.
I think if it was clinically relevant,
they would report that to me.

Q.
Do you mean that they might have some
10
difficulties obtaining samples that wouldn't be
11
clinically relevant, right?
12
A.
So, if this was a critical animal emergency
13
and we were talking regularly about, say, a sick animal
14
in one of the other parks, and we're waiting for a
15
specific sample that was relevant to that animal's case
16
at that time and they had attempted to collect it on a
17
day and it had been unsuccessful, and they were going to
18
need to get it the next day, then that would be part of
19
our conversation.
20
Q.
And, if they were having difficulty sort of
21
generally collecting samples from any of the whales, say
22
a particular whale, that would be something that they
23
would notify you about as well?
24
A.
Again, if it was clinically relevant, yes.
25
Q.
What about, for example, if they repeatedly
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couldn't get a blood sample or blood draw from a
particular whale, at what point would that be brought to
your attention?
A.
-- it depends.
call just routinely.
sample from a particular animal were such that it was,
say, interfering with and substantially affecting our
regularly preventive health program, it would be a topic
10
11
I think it would be brought to my attention

We talk regularly in a weekly conference
If the failure to get a blood
of conversation, and I would be involved.

Q.
Now, you and your staff perform medical
12
procedures or veterinary procedures, I think you
13
referred to killer whales?
14
A.
Yes.
15
Q.
And, the trainers, they're not performing the
16
17
medical procedures or the veterinary procedure itself?

A.
That's right.
So, the trainers perform
18
samples collection, and the trainers perform -- there is
19
one behavior that the trainers perform that is a dental
20
procedure.
21
whale's teeth, if they have an abscess or an infection
22
within the pulp cavity of the tooth that's under
23
pressure, we will sometimes do an apical core where we
24
drill out the center of the tooth and relieve the
25
pressure, allow the exudate to be released and that also
There are times where with regards to the
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gives us access then to clean and flush that area.
That is a procedure, if you will, that the
trainers will do, and that's not a tooth root
extraction.
root extraction.
we will have the trainers do.
7
8
Q.
We would never have a trainer do a tooth

It is the minor dental procedures that
So, that minor dental procedure is called
drilling out the tooth?
A.
You could refer to it as such.
10
Q.
And, that's been done on most of the whales
11
in Sea World's collection?
12
A.
It's been done on many.
13
Q.
Do you know whether it's 10 or 20 or
14
whatever?
15
A.
There's 20 and in North America, and I can
16
figure it out if you give me a second just how many it
17
is.
18
Do you want me to tell you the actual number?

Q.
You can give me an approximation.
I'm not
19
going to ask you to say it's 17 and, you know, it's
20
really 16.
An estimate.
21
A.
Do you know how many?
22
Q.
The way this works is I get to ask you
23
24
25
questions.
A.
I know, but I would like to answer a question
with a question.
Yes, I would say it is probably 14 of
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1
2
3
the 20.
Q.
So, somewhere in the neighborhood of 70
percent, give or take?
A.
Yes.
Q.
Now, you don't allow trainers to perform any
actual medical procedures other than that tooth
drilling, if you will?
A.
To my knowledge, no.
Q.
Now, currently -- and by "currently" I guess
10
I mean any time after Dawn Brancheau's death in February
11
of 2010, there were no medical procedures that required
12
the trainers to actually get in the water with the
13
killer whales?
14
A.
15
Just to clarify, again, can you describe to
me what you mean by "get in the water"?
16
Q.
Let's say swimming.
17
A.
That's right.
18
19
20
21
There are no medical
procedures that require the trainers to swim.

Q.
Or to get in the water that's above their
knees?
A.
No.
Most of the medical behaviors that we
22
perform have the animals in water that is less than knee
23
deep, that's true.
24
25
Q.
And, the trainers themselves, of course,
don't need to get in water over knee deep for the
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1
2
medical procedures?
A.
For the medical procedures, no.
So, we
talked about -- well, the answer is, no; for a medical
procedure, no.
Q.
And, now, the shallow part of the pool where
the trainers are, that's anywhere from a ledge with no
water to maybe six to eight inches deep?
A.
That's right.
Q.
So, standing there, that's not in the water,
10
if you will?
11
A.
I would agree with you.
12
Q.
And, trainers are not completely in the water
13
for doing any routine husbandry behavior currently?
14
A.
That's true.
15
Q.
Or for health surveillance behaviors as well,
16
17
18
19
20
they're not in the water?

A.
health assessments by the trainers are not in the water.

Q.
A.
22
are not.
23
Q.
25
And, they're not in the water for more
advanced diagnostic or therapeutic procedures?
21
24
Diagnostic sample collections or monthly
Diagnostic and therapeutic procedures, they
As a veterinarian, you don't direct the
trainers to get in the water with the killer whale?

A.
I do not.
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1
2
Q.
You're not in charge of the killer whale
trainers' safety?
A.
I'm not.
Q.
You do not ensure that the trainers are
5
6
working in a safe manner?

A.
That's not my responsibility.
However,
safety associated with a diagnostic or therapeutic
procedure is definitely part of my responsibility as a
responsible veterinarian.
10
Q.
Well, if you saw something unsafe during a
11
medical procedure that you were involved in, you might
12
say something and you might, in fact, raise a discussion
13
and maybe point out that the trainer is doing something
14
that is unsafe, right?
15
A.
Yes.
16
Q.
But beyond that, you don't have the
17
responsibility for making sure the trainers generally
18
are working in a safe manner during routine collections
19
and the like?
20
A.
Again, the safety of the trainers is part of
21
the training department, but during a sample collection,
22
be it routine or be it nonroutine, animal and human
23
safety are part of the responsibility of the
24
veterinarian.
25
Q.
You're not in charge of training the
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trainers, ensuring the safety of the trainers when they
are training the animals for participation in the sample
collections?
A.
That's true.
If it's training happening
outside of monthly health assessments, the veterinarians
are not responsible for their safety.
Q.
And, the veterinary department or the
department that you're in and your subordinates are in,
that's not part of the animal training department?
10
A.
It's not.
11
Q.
And, I think you said routine husbandry
12
procedures, those are all done with the trainers?
13
A.
Yes, they are.
14
Q.
And, they're done from the shallow water
15
ledge or in the medical pool?
16
A.
That's right.
17
Q.
And, that includes all the preventive health
18
behaviors are done from the shallow ledges or in the
19
medical pool?
20
A.
That's right.
21
Q.
Any minimal diagnostic procedures are done
22
from the shallow ledge in the medical pool?
23
A.
That's right.
24
Q.
Including urine samples?
25
A.
That's right.
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Q.
Blood draws?
A.
Yes.
Q.
Now, at Sea World, do you still perform all
the medical procedures on the animals that Sea World
performed before Ms. Brancheau's death?
A.
Yes, we do.
Q.
So, you're still able to perform those today?
A.
Yes, we are.
Q.
And, since Ms. Brancheau's death, Sea World
10
has reduced the amount of physical contact it has with
11
the whales?
12
A.
Yes, they have.
13
Q.
So, they don't engage with the killer whales
14
as closely as they did?
15
A.
That's true.
16
Q.
And that's been the case since Ms.
17
Brancheau's death?
18
A.
It has.
19
Q.
And, Sea World was able to make these changes
20
as to reducing the amount of close contacts immediately
21
after Ms. Brancheau was killed, right?
22
A.
Yes, we were.
23
Q.
So, since Ms. Brancheau's death, the trainers
24
25
have less hands-on assessing the killer whales?

A.
Yes, they do.
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Q.
And, I think you testified here today that as
a result of -- well, I don't know -- it's as a result of
Ms. Brancheau's death that that closeness to the whales
has been reduced, right?
5
6
7
A.
It happened subsequently and, yes, I believe
it is.
Q.
And, as a result of the fatality, Sea World
has limited the pool areas, I think you testified, where
blood samples are collected?
10
A.
We have limited it with regards to Tilikum,
11
yes, and then we've limited the locations for the other
12
whales.
13
14
Q.
And, perhaps I'm looking at this here --
perhaps this was more at your deposition --
15
A.
The deposition, sure.
16
Q.
-- that the pool area or the pool locations
17
where blood samples are collected has been limited for
18
all the whales?
19
A.
Yes.
20
Q.
Previously, Sea World had more locations in
21
pools where they collected blood samples?
22
A.
That's true.
23
Q.
But, now due to considerations of trainer
24
25
safety, Sea World has limited those areas?

A.
That's what we've done.
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Q.
Now, during your deposition, you
characterized that limiting of those areas for trainer
safety as an extreme change; do you recall that?
A.
I do recall that.
Q.
But, despite its being an extreme change, Sea
6
7
World has, in fact, been able to make that change?

A.
Yes, we have.
I think I would change the
characterization from extreme to it has been a limiting
change, and I think it's hard to go through with an
10
adjective like "extreme" or "limiting" without taking
11
some time to sort of revisit the effect that it has on
12
our overall sensory ability with regards to animal
13
health.
14
Q.
Well, okay.
Do you consider it an extreme
15
change or something like that to not be able to collect
16
blood samples at all in locations you could prior to Ms.
17
Brancheau's death?
18
A.
I think it is a change that may prove to be
19
extreme over time.
20
extreme change.
21
Q.
Right now, it has not been an
And, in fact, you didn't provide any
22
testimony when you testified on Direct Examination that
23
that, in fact, was going to be something that was going
24
to limit Sea World in some way in the future, right?
25
A.
We did not discuss that during my Direct.
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1
2
Q.
Now, there were some changes made as to how
Sea World worked with Tilikum for safety reasons?
A.
Right.
Q.
Tilikum's blood samples are now in the med
pool or this corner of the E Pool?
A.
Yes.
Q.
And, diagnostic ultrasounds, they now are, if
done, would be done in the med pool?
A.
Currently, yes.
10
Q.
And, there are other procedures that have
11
been limited in the locations for Tilikum for safety
12
reasons?
13
A.
That's my understanding, yes.
14
Q.
Well, okay, you say it's your
15
16
17
18
understanding -A.
That's why we have made those changes is for
safety reasons, yes.

Q.
During the blood sample draw, the routine
19
blood samples, the veterinarian, I think you said, is
20
behind the two and a half foot wall or barrier?
21
22
23
24
25
A.
Two feet behind -- the feet or feet remain
behind the wall.

Q.
Two feet wasn't a measurement of distance.
It was one shoe, two shoes?

A.
One foot, two foot, yes.
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1
2
Q.
And, the vet is behind that wall and they're
not in the water with the whale?
A.
That's true.
Q.
And, it's, in fact, safer for the vet to be
5
6
behind the wall?

A.
That's true.
I'm lilting here on the end of
it because with that wall currently, when you have
two feet behind it, your two feet behind it, you are
leaning forward in a position that can be somewhat
10
awkward.
11
So, we have decided at this point to keep our
12
two feet behind that wall, and in many instances, we can
13
collect that sample, but I would tell you for me
14
personally, that's not the most comfortable body
15
position to be in to collect that sample.
16
Q.
To collect the blood sample?
17
A.
That's right.
18
Q.
So, it's your testimony that prior to 2/24,
19
20
you were in front of that wall, collecting that sample?

A.
At least partially.
If you want to go into
21
it, it's the most comfortable position, and I believe
22
the position that gives the veterinarian the best
23
opportunity for egress should they need to is to
24
effectively straddle the wall and have one foot on the
25
ledge that has a few inches of water in it, and the
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other foot on the ground.
In that instance, then, you can be collecting
the sample, but your body weight is more evenly
distributed and you can step away should there be a
problem.
Q.
But, nonetheless, there's been a
determination made that now it's safer for the vet to be
behind that wall?
A.
Currently, yes.
10
Q.
Despite any relationship that the trainers
11
might have with the whales?
12
A.
Yes.
13
Q.
The trainers can't perfectly control the
14
15

A.
Well, nothing is perfect, but there is a high
16
degree of reliability that the trainers in their
17
positioning facilitate the comfort and the relaxation
18
that that animal has during the procedure, which as I
19
said in my Direct, makes it, I believe, a safer
20
procedure.
21
Q.
I understand that there's a high degree, but
22
you concede that the trainers can't perfectly control
23
the killer whale?
24
A.
I guess I would ask you to define "perfect."
25
Q.
Well, all the time.
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A.
100 percent of the time?
Q.
Yes, sir.
A.
They cannot do it 100 percent of the time.
Q.
And, the trainers can't always predict the
killer whale's behavior?
A.
100 percent of the time?
Q.
Yes, sir.
A.
Not 100 percent of the time.
Q.
So, now, the vet is standing behind the wall?
10
A.
Currently.
11
Q.
And the killer whales, of course, are very
12
large animals?
13
A.
Yes, sir, they are.
14
Q.
And, they have the potential, as you know, to
15
do great harm?
16
A.
17
18
They certainly carry the potential to do
great harm.
Q.
So, you can't always predict how the animal
19
is going to react to the blood draw, and I use the word
20
"always"?
21
A.
Right.
22
Q.
So, you want to maintain a barrier between
23
24
25
the vet and the animal?

A.
So we're clear, I believe the safest thing to
maintain is an ability to egress, the ability to remove
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personnel from that because, if you will, we have a
barrier.
allows us to egress.
It's dry land.
So, we have a barrier that
And, so, yes, to answer your question, I
believe the barrier is safe and, currently, we use our
ability to egress.
you always maintain the ability to step away from or
into the animal, based and how it reacts to the
veterinary procedures you may be engaged in, blood draw
10
As I would from any other animal,
or otherwise.
11
So, it's a long-winded answer; but, yes, I
12
believe very simply flexibility, the ability to egress
13
and move with the animal according to the animal, is
14
your best policy with regards to safely performing any
15
kind of a diagnostic procedure or sample collection or
16
medical procedure with an animal.
17
Q.
So, in this case, then, you have both egress,
18
the ability to move back if necessary, as well as the
19
barrier?
20
A.
Currently, that's what we have, yes.
21
Q.
Now, I want to turn to your attention to your
22
testimony about meeting with Ms. Padgett, the OSHA
23
investigator.
24
A.
Sure, yes.
25
Q.
Do you remember her?
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A.
I do remember.
Q.
Now, you know that Ms. Padgett was not
3
4
5
6
7
8
9
allowed to take any notes during her meeting with you?

A.
I do not recall that she was not allowed to
take notes.
Q.
Do you recall that she did not take any
notes?
A.
I don't recall that.
She had paper with her
when we were sitting there is my recollection.
10
computer and she had her notes.
11
but she had her notes.
12
Maybe she wasn't noting
So I do not know the rules, I do not recall
13
the specifics of the rules associated with our
14
engagement.
15
16
I had my
Q.
And, during that meeting with Ms. Padgett,
you didn't provide to her any paper records?
17
A.
I did not.
18
Q.
And, the meeting lasted about 30 minutes,
19
give or take?
20
A.
21
She did not request them.
30 minutes to an hour.
It felt longer than
30 minutes.
22
Q.
So --
23
A.
We've been here six; I don't know.
24
Q.
Understanding that it might have felt longer,
25
you don't have any reason to question that it only took
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1
2
30 minutes?
A.
I have no reason to question it.
My
understanding is when I left, she had others of my
colleagues that she was then going to speak with.
5
6
7
8
9
10
Q.
And, she asked some questions about your
veterinary techs or the persons underneath you, right?

A.
We spoke about the veterinarians and the
veterinary procedures, yes.

Q.
But, you only met with her roughly
30 minutes, right?
11
A.
Give or take.
12
Q.
Give or take.
So, you didn't have an in
13
depth discussion of any particular medical procedures
14
with her?
15
A.
I think we had a fairly -- to the extent that
16
we discussed -- yes or no question -- but in depth is a
17
relative term.
18
To the extent that we just went through my
19
Direct where I described some of the husbandry behaviors
20
we perform, we had a very similar discussion, and I
21
spent some time describing how we do those procedures.
22
So, that's not in depth necessarily to me, but it's
23
fairly in depth as far as describing how we do our work.
24
25
Q.
And, you know that Ms. Padgett didn't talk to
any of your other veterinarians?
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A.
That is my understanding that afterwards she
did not follow up and talk to any of the other
veterinarians.
Q.
Did I hear you correctly you said that a
stress free environment is important both to animal
safety and to human safety, right?
A.
That's my feeling, yes.
Q.
Well, not just your feeling but that's one of
9
10
11
the bases on which the operating procedures, if you

will, for doing what you do are designed?
A.
That's true.
The way we do what we do has
12
been an evolution over the years of providing care to
13
these animals.
14
mentioned, lifting the animal out of the water and
15
collecting blood under restraint, that's challenging,
16
and that is dangerous for animal and person.
17
And, in the early days, I think as I
The way we provide care now, the way we
18
collect samples is much less dangerous, and the stress
19
associated with that -- of course, stress is a loaded
20
term but it's reduced.
21
22
Q.
You talked about the Florida Park and you
talked about the artificial insemination program?
23
A.
Yes, sir.
24
Q.
And, I think you said something about
25
trainers collecting the samples voluntarily from the
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1
2
3
4
5
whale?
A.
The word, "voluntarily," was used, yes.
Do
you mean the trainers or the whale?

Q.
Well, I think you used the term,
"voluntarily," as pertaining to the whale?
A.
That's right.
Q.
And, I think you used the word, "willingly";
that the whale did it willingly?
A.
I may have used that word, yes.
10
Q.
And, in using that word, what you meant is
11
12
that the whales didn't swim away?

A.
That's true.
So, in simple vernacular, as
13
opposed to -- okay, we're going to go here -- as opposed
14
to if this was bovine practice, and I had the cow in a
15
stall, and I was going to electro-ejaculate the animal,
16
our killer whales participate in this particular
17
behavior as willingly as voluntarily, as electively, if
18
you will, as they do in a blood sample or a squirt or a
19
pec wave or any other behavior that the whales do.
20
21
Q.
Right.
And, all I was trying to clarify was
that "willingly" meant that the whales didn't swim away?
22
A.
That's right.
23
Q.
Now, you said for sample collection, it was
24
important that the animals participate voluntarily or
25
willingly for a number of reasons?
CARLIN ASSOCIATES
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A.
Okay, yes, I did.
Q.
And, one of them is so that you could obtain
good samples; that is, so that you could obtain samples
that were better diagnostic samples.
fair?
Would that be
A.
Yes, that's fair.
Q.
And, are you saying that when someone takes
their dog to a veterinarian and the dog is restrained,
that the samples obtained from the dog, then, are
10
subpar?
11
A.
They could be.
12
Q.
Now, that's often the standard practice with
13
dogs, right?
14
A.
So, would you like me to clarify?
15
Q.
Well, first, answer mine before you clarify.
16
Often, the practice is to take samples from the dog?
17
A.
Under restraint.
18
Q.
Under restraint?
19
A.
That's true.
20
Q.
So, if you want to explain it?
21
A.
So, there is --
22
Q.
I don't get to come back and question you
23
24
25
again.
So, I might as well ask here and now.
A.
Let's just do it.
The sample that you would
collect from -- when we say the quality of the sample
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may or may not be as good were it's collected under
restraint versus collected with the trainer and the
animal participating willingly.
There's the quantity of blood that you
collect, your ability to get the needle into the vein
that allows you to collect that sample, the relative
comfort of the procedure to the animal, and ultimately,
then, the actual results themselves.
So, what I am saying to you is that with an
10
animal participating willingly, the likelihood of
11
getting the needle into the vein to get the appropriate
12
amount of blood without a half sample, if you will --
13
have you ever gone to the doctor and you get a bad
14
phlebotomist and they miss and they have to restick,
15
that's not good, and they've got to take more blood.
16
And, then, ultimately, the results themselves
17
can reflect either a short-term or a long-term stress in
18
the environment, and it will show up in the blood.
19
called a stress leukogram.
20
It's
In a dog, that same dynamic exists, and what
21
I'm telling you is that if a veterinary hospital has a
22
bunch of dogs that come in that have been conditioned to
23
sit and allow someone to -- dogs are a little different,
24
right?
25
nice cephalic vein right here on the front of their
They don't have the tail fluke, they've got a
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forehead.
had to do was brace it, hold off the vessel to get a
nice stick, that would be a much better diagnostic
sample.
a better sample every time.
6
7
Q.
If they just set that there and all someone
And, the odds are statistically, you would get
The samples are still taken and used to make
medical decisions?
A.
They absolutely are.
Q.
And, Sea World would still use any sample
10
that might occur that were taken under periods of whale
11
stress, if you will?
12
A.
We would still use those, yes.
13
Q.
And, in fact, the determination of whether
14
the whale is under stress or not, that's something that
15
is a subjective determination looking at external
16
signals from the whale, right?
17
A.
There are objective measures of it.
18
Q.
But, the objective measures are subjective
19
evaluations of is the whale moving?
20
voluntarily participating?
21
A.
Is the whale
So, this is why I guess I say stress is a
22
loaded term.
I mean, the stress I'm experiencing right
23
now while I'm sitting here talking to you, and then
24
there is normal physiologic stress, the appropriate
25
stress response, the short term stresser response,
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there's chronic stress which I enjoy in my job.
there are lots of forms of stress.
So,
So it's loaded.
What we know, though, and again you said if
we would use the samples, we would collect however we
had to collect it.
entire process is over that says that "Thou shalt not
touch," that's a terrible way for us to manage these
whales, we would do it.
these animals, whatever barriers are thrown up, but it's
If we land somewhere after this
We can still exact care on
10
not the way to do it.
11
standard of care.
12
apply care, but we would not be doing the best job that
13
we possibly can.
14
That's not the appropriate
And so, yes, we would do it, we would
We would not be working towards the ideal,
15
which in this particular case is a stress free
16
environment.
17
subjective or it objective?
18
I know I left your topic.
Is it
But, with regards to stress, I worry about
19
the objectivity.
20
leukogram when I collect the sample or do I have an
21
inflammatory leukogram?
22
those mean two completely different things.
23
look very similar on a blood profile.
24
25
I want to know do I have have a stress
Because for me diagnostically,

But, they
And, if you can eliminate one of those

variables and I could do it safely and I can do it in a
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way that's better for the animal, better for the people,
safer for the environment in general, safer over the
long term, then that's the one I would pick.
Q.
I understand but you can't tell necessarily
objectively whether that leukogram gave a whatever
positive reading perhaps based on some stress that the
whale is experiencing that you are not privy to, if you
will?
A.
We can still have a stress leukogram.
The
10
objective measure or one objective measure of stress, we
11
could still certainly see those and periodically do see
12
them collected, showing up in blood samples done the way
13
that we do them now.
14
I'm making the argument that it's a less
15
stressful procedure, and so we're less inclined to see a
16
stress leukogram, and if I'm understanding you
17
correctly, we could still see those in any sample that
18
we collect.
19
Is that what you're saying?
20
Q.
Yes.
21
A.
Yes, we would.
22
Q.
Now, you mentioned that killer whale teeth
23
are soft?
24
A.
The enamel wears easily, yes.
25
Q.
And, I think you said that we see erosion of
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of killer whale teeth in the wild and in captivity?
A.
Yes.
Q.
And, the killer whales in captivity who have
their teeth drilled out, that's sometimes a result of
killer whales breaking their teeth on the metal gates of
the pools?
A.
Well, I mean, there is that nuance, but the
whales do not grab the gates and fracture them on the
metal.
The teeth are typically broken on other hard
10
surfaces within there, but your characterization that
11
they're breaking them on the metal is not the case.
12
Q.
They're wearing them down by sometimes --
13
A.
Some means or another.
14
Q.
Has Sea World studied what the cause of the
15
16
17
killer whale teeth breakage is?

A.
We understand the cause of the killer whale
tooth breakage.
It could be a number of things.
18
Q.
Including?
19
A.
Including concrete, so they're in concrete
20
pools, certainly.
So, some of it may be a tooth versus
21
concrete, some of it may be tooth versus other whales,
22
and by that I mean if a whale bites down on another
23
whale and the whale spins away, you may fracture off the
24
tip of a tooth that way.
25
other ways.
So, these are some of the
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Q.
Now, you haven't done any studies to indicate
why the killer whales are doing that biting and breaking
of teeth, have you?
MS. GUNNIN:
question.
I don't see what the relevancy is to how a
killer whale's tooth is needing dental work.
something that we talked to him about on Direct.
beyond the scope, not to mention there is not going to
be a finding by OSHA about killer whales' teeth, and
That's not
It's
10
what's causing their teeth to need dental care.
11
don't see the relevancy of this line of questioning.
12
JUDGE WELSCH:
13
MR. BLACK:
I just
Mr. Black?
They opened the door by talking
14
about erosion, completely unnecessary to say erosion in
15
the wild and in captivity, and I have a point I would
16
like to make about this.
17
JUDGE WELSCH:
18
19
20
21
Is this going to be relevant to
the issue that I have decide?

MR. BLACK:
I think it's as relevant as any of
this husbandry and medical care stuff.

MS. GUNNIN:
Mr.
22
Black has just stated pretty clearly what this is about.
23
He says there's a difference between being in the wild
24
and captivity.
25
this is information being sent from a certain source to
And I think the Court should know that
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Mr. Black about wild versus captivity.
issue in the case.
that is not what the Court is going to decide, and he
just said that is what he's exploring.
go further is --
MR. BLACK:
MS. GUNNIN:
That's not an
As you have described at the outset,
To allow this to
I didn't say that.

-- presenting irrelevant
testimony and it's inflammatory testimony.
JUDGE WELSCH:
Mr. Black, is that where you're
10
going with this?
11
MR. BLACK:
No, Your Honor.
12
MS. GUNNIN:
Judge, I would ask for a side
13
14
bar.
JUDGE WELSCH:
I'm not going to do a side bar.
15
Go ahead, I'll you allow you a couple more questions.
16
Let's get to it.
17
MR. BLACK:
18
BY MR. BLACK:
19
Q.
So, Dr. Dold, you haven't done any studies
20
whether the breakage of a tooth is an indication of
21
stress on the captive animals, right?
22
stress.
23
A.
You talked about
We have not during my time here -- and I've
24
been with Sea World for six years -- we have not engaged
25
in any studies that would look at the correlation
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between objective measures and stressers and dental
pathology.
Q.
And so in talking about when whales are
stressed, experiencing stress or not, you haven't done
any studies that would indicate killer whale stress
during behavioral training; whether the whales feel
stressed, if you will, during training for procedures of
any sort?
A.
Well, here's what I can tell you.
10
Q.
And, I would prefer if you're able to answer
11
12
13
"yes" or "no" before you tell me, that would be helpful.

A.
It's not a "yes" or "no" question.

We haven't published any peer reviewed
14
literature that would show the difference between the
15
number of stress leukograms in an animal that is
16
performing versus the number of stress leukograms in
17
animals that are not.
18
So, we're going to leave killer whales for
19
just a second.
There is literature out there that shows
20
the difference between the objective measures of stress
21
in terms of the profile, like blood cells in the form of
22
a stress leukogram, relative measures of cortisone,
23
aldosterone.
24
commonly associated with a stress response that show
25
very clearly that samples collected under restraint look
Cortisone and aldosterone are hormones
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more stressed than samples not collected under restraint
and samples collected under operant conditioning and the
way that we do our medical care right now.
So, that includes fewer stress leukograms.
The objective measure does show that in cetaceans and
anecdotally again, not recorded in the peer reviewed
literature, but it is completely reasonable to assume
that at least in terms of a stress response an
odontocete, a tooth whale, a whale or a dolphin.
Of
10
course, the killer whale is the largest dolphin -- their
11
physiology is very, very similar -- the reduction in the
12
frequency of a stress leukogram that we see are normal
13
reference ranges, if you will, based on the samples that
14
we collect in this manner, indicate that this method of
15
collecting blood the way that we do these medical
16
procedures is less stressful than the alternative which
17
is under restraint.
18
19
20
21
22
Q.
So, none of those studies were of killer
whales?
A.
We have not repeated our work to killer
whales.
Q.
Now, you talked about training animals
23
behaviorally -- excuse me, you talked about moving
24
killer whales between facilities?
25
A.
Right, I did.
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Q.
And, in training them for transport, does Sea
World put them in transport containers so that the
whales become conditioned or used to the transportation
container?
A.
We will, yes.
Q.
And how often is that done?
A.
I'm sorry, I was readjusting my chair.
Say
again?
Q.
How often is that done that animals are
10
trained by being put in the container that they're going
11
to be moved in?
12
A.
Putting them in the containers is infrequent.
13
Q.
So that's not something that is routinely
15
A.
That's not routinely done, no.
16
Q.
Now, you testified, I think, on Direct that
14
done?
17
it's important to be close to the whales; for trainers
18
to be close the whales?
19
A.
I may have.
I believe that contact, tactile
20
input being in close proximity to the whales enhances
21
the relationship that the trainers have with them.
22
yes, I believe it's important.
23
Q.
So,
And, that that closeness somehow allows the
24
veterinarian to apply this nocuous stimulus to the
25
animal, if you will, the stick and the needle in the
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1
2
3
tail fluke?
A.
Yes, I think I referred to it as a nocuous
stimulus when we were doing the deposition.
Q.
Would you reaffirm that term here?
A.
Yes, I would.
Q.
And, so notwithstanding this relationship,
Sea World still takes protective measures in obtaining
those samples, right?
A.
Please explain.
10
Q.
Well, we talked earlier, I guess, about
11
standing behind the barrier and allowing means of
12
egress?
13
A.
Yes.
14
Q.
And, the importance of that closeness of that
15
bond or that's limited by other factors includes safety,
16
right?
17
are safety considerations involved; is that right?
That is how close you get to the whale, there
18
A.
Yes.
19
Q.
And before Ms. Brancheau's death, some killer
20
whales were dry work only whales, right?
21
A.
Yes.
22
Q.
And, by that, we mean there was no water work
23
being done prior to February of 2010, right?
24
A.
That's right.
25
Q.
That was the case for Tilikum?
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A.
Yes, it was.
Q.
And with Taima?
A.
I believe it was, yes.
Q.
And at times even Taku?
A.
Yes.
Q.
He was at times a dry work whale?
A.
I don't know of Taku's work status.
Q.
And, at the Sea World of California Park,
Kasatka was a dry work whale?
10
A.
That's my understanding.
11
Q.
And, Orkid was a dry work whale?
12
A.
I don't know Orkid's status, but it's
13
possible.
14
Q.
15
of San Diego?
16
A.
17
18
19
And Ulises was a dry work whale at Sea World
Again, I'll have to take your word for it.
don't know Ulises' work status.

Q.
So, in being the veterinarian overseeing the
vets that work at Sea World California --
20
A.
Yes.
21
Q.
-- did those people under you report any
22
problems or difficulties with Orkid or Ulises as a
23
result of whether they were water work or dry work
24
whales?
25
A.
I don't know Orkid and Ulises.
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We never had
1774
1
2
a discussion on that topic, no.

Q.
So they never reported to you that, "We're
having problems with these dry work whales getting
samples, doing procedures," or the like?
A.
No.
Q.
If that had been a problem, that falls within
the kind of clinical diagnostic or could fall within the
clinical diagnostic issues that you referenced earlier?
A.
Yes, I think it could.
10
Q.
I mean, if you were unable --
11
A.
If repeatedly we were unable to collect
12
13
samples over time, yes.

Q.
And, now, I understand that the dry work
14
protocols with the whales who are dry work, those were
15
for safety reasons, right?
16
A.
I understand.
17
Q.
So, Sea World's decision not to do water work
18
with certain killer whales had nothing to do with OSHA
19
or anything that OSHA was telling Sea World?
20
A.
I understand.
21
Q.
And, Sea World had made the decision before
22
Ms. Brancheau's death to have no water work with those
23
whales on its own; that was its own decision?
24
A.
I understand, yes.
25
Q.
And, that was because Sea World determined it
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was safer to do it that way?
A.
Yes.
Q.
And, so Sea World still performed husbandry
work and medical procedures with those dry work whales?
A.
Yes.
Q.
And, you're still today able to perform the
husbandry and veterinarian procedures with the whales
working in dry work today post February 2010?
A.
Rephrase the question?
10
Q.
Sure.
11
A.
A little clearer.
12
Q.
Well, let me back up.
13
A.
Okay, go ahead.
14
Q.
Let me ask this a different way.
15
So I'll
withdraw that question.
16
A.
Sure.
17
Q.
Let me approach it from a different angle.
18
A.
No worries.
19
Q.
Sea World holds permits for the display of
20
its killer whales?
21
A.
Yes.
22
Q.
And, those permits come from the USDA Animal
23
Planned Health and Inspection Service is the one that
24
permits?
25
A.
National Fisheries Service and the USDA, yes.
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1
2
Q.
So, they have permits from two government
agencies?
A.
Yes.
Q.
Presently, Sea World holds public display
You're going way back.
Go ahead.
permits for its killer whales from those agencies?
A.
Yes.
Q.
And those permits contain certain
requirements?
A.
They do.
10
Q.
Including animal husbandry requirements?
11
A.
They do.
12
Q.
It includes a medical care requirement and
13
veterinary care?
14
A.
It does, yes.
15
Q.
And, they require that Sea World provide
16
proper care to their killer whales?
17
A.
Indeed.
18
Q.
For the killer whales' health and well being?
19
A.
Yes.
20
Q.
You wouldn't want the killer whale to be not
21
22
well taken care of under the permits; is that right?

A.
I mean, the permits are federal regulatory
23
board.
My personal stake, my personal desire and our
24
company ethos to provide the best health and welfare for
25
these animals that we possibly can.
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So, with all due respect if there were no
regulatory board, we would still be doing the job that
we do.
do.
I would still be doing exactly what it is that I
Q.
My bad.
Poorly phrased question.
So, the
federal permits that you're complying with, these are
requirements that by law or by terms of the permits, Sea
World must meet?
A.
Yes.
10
Q.
They're a condition in order for Sea World to
11
be able to keep those killer whales for public display?
12
A.
Indeed, yes.
13
Q.
And, if Sea World were to fail to meet those
14
requirements, it could close the whales?
15
A.
By letter, yes.
16
Q.
And, now, Sea World believes that today it's
17
currently in compliance with the terms of those permits,
18
right?
19
A.
Yes.
20
Q.
And, even though Sea World's trainers aren't
21
engaging in any water work with the killer whales?
22
A.
Even though.
23
Q.
And, so Sea World is not suggesting that the
24
present killer whale care is so deficient that it risks
25
losing those permits?
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A.
Sea World is certainly not suggesting that.
Q.
And, Sea World still is adequately caring for
3
4
5
6
7
8
9
10
11
12
the animals to this day?

A.
Sea World is adequately caring for these
animals to this day.

Q.
And, that's even though this level of close
contact has gone down significantly?

A.
Even though we have reduced the sensitivity,
we've reduced the times where again the advocates are in

contact with and working with those whales.
Q.
So, still able to take care of the whales and
maintain your permits?
13
A.
14
MR. BLACK:
15
16
Undoubtedly.
No further questions, Dr. Dold.
Thank you.
JUDGE WELSCH:
17
Ms. Gunnin?
---o0o---
18
19
BY MS. GUNNIN:
20
Q.
Dr. Dold, following up on what Mr. Black just
21
questioned about, from your perspective as a
22
veterinarian at Sea World, he was questioning you about
23
being able to hold a legal permit to maintain the killer
24
whales.
25
But in your opinion as a veterinarian
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providing care, do you believe that the lack of having
close contact with the killer whales could affect the
ability to diagnose illnesses in the killer whales?
MR. BLACK:
Your Honor, we didn't go into that
in Cross-Examination.
That's beyond the scope.
JUDGE WELSCH:
Overruled.
BY MS. GUNNIN:
Q.
You can answer.
A.
Great.
Go ahead.
I think I mentioned before and I'll
10
mention again, that the strength of relationship and the
11
level of engagement that the trainers have -- and by
12
engagement, I mean the tactile, the sensory, the
13
closeness, the bond that the trainer and whale have with
14
each other, the stronger that is, the more time they
15
spend together, the more opportunities for that trainer
16
to be assessing that whale's health and well being even
17
if they don't know they're assessing, it only improves
18
the level of care that we can provide for these whales.
19
It only improves their ability to tell us when something
20
is amiss.
21
And, so the question is, can we still apply
22
effective care and meet all of the standards and
23
regulations put forward?
24
supersede those.
25
is the foundation for the new recommendations 20 years
Yes.
But, my goal is to
Our goal is to develop a program that
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from now.
of care for the whales in our facility.
root of that is this trainer-whale engagement.
It's to continually develop a better standard

And, at the
And, so it may be that this limitation of
touching a whale -- I believe we talked about being in
the water versus not being in the water, not being in
the water for a diagnostic procedure, but this is a
water work whale, this is a young whale that trainers
are working in the water with that animal, and it's well
10
known that as part of play behavior and show behavior,
11
they roll over onto that animal's abdomen.
12
It could be that animal feels 90 percent,
13
there's something wrong in its stomach, and trainer
14
touches that area, and the animal reacts subtly.
15
trainer now has something they would not have picked up
16
on if they weren't in the water with that animal.
17
The
It's an extreme example maybe, but it's an
18
example to serve the point that when we push that
19
boundary further away, our sensitivity goes down, not
20
incapacitating, but it goes down in such a way that that
21
is, I think, not the direction that we want to be headed
22
in.
23
We would never ask an owner to not handle
24
their dog.
We might if it was a very dangerous dog, but
25
people touch and feel their dog, and they pick up on
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things earlier.
the whales.
3
4
5
6
7
Q.
The same is true with the trainers with
As has the model of Sea World been to have no
contact with their killer whales?

A.
The model has not been for the trainers to be
no contact with the killer whales.

Q.
So, do you have an opinion as a veterinarian
charged with caring for these killer whales as to what
the long-term effect would be of having no contact with
10
11
the killer whales?

MR. BLACK:
Your Honor, we would object to
12
undisclosed expert testimony now on this rather than
13
what's going on at Sea World now, in fact, and now
14
attempting to provide an opinion that did not open the
15
door to in our examination, and having Ms. Gunnin on the
16
last examination of this witness now seeking an opinion.
17
18
JUDGE WELSCH:
I'm not accepting it as an
expert.
19
MS. GUNNIN:
20
JUDGE WELSCH:
He can offer lay opinion.

But, I think he can offer an
21
opinion as a veterinarian in terms of being charged with
22
the care for the animal.
23
overruled.
So, your objection is
Go ahead.
24
Do you remember the question?
25
THE WITNESS:
Mostly, but could you repeat it?
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MS. GUNNIN:
BY MS. GUNNIN:
Q.
I will try.
So, as a veterinarian charged with the care
of the killer whales at Sea World, do you have an
opinion about what the long-term effect would be of
having no contact with the killer whales?
MR. BLACK:
We have never said no contact.
9
10
11
Relevance.
We don't think
that that has any relevance to this proceeding.

JUDGE WELSCH:
You asked that question.
Overruled for now.
12
MR. BLACK:
I didn't ask about no contact.
13
JUDGE WELSCH:
I understand the Secretary's
14
15
position, but I think that's exactly what you asked.

MR. BLACK:
It's within the scope, but she
16
did use the term "no contact," and that's what I'm
17
objecting to; an opinion about no contact.
18
JUDGE WELSCH:
19
Go ahead.
20
THE WITNESS:
Overruled.
I believe no contact, the long-
21
term impact of no contact, I would imagine would be
22
negative.
23
would endorse.
24
use the dog example, with your dog.
25
It certainly would not be a policy that I

It would be akin to being no contact, to
From a clinical standpoint if we were no contact,
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I could not do my job.
animal training in any way, shape or form is a contact
scenario, and there are risks, there are undoubtedly
risks.
working with horses, cows or anything, but we're always
in contact.
Medicine, animal husbandry,
There are risks in my operating whether I'm
From the veterinarian standpoint in medicine it's
organoleptic experience, right?
touch, you feel.
It's multisensory.
You
The animal receives your touch, your
10
feel, your sound, what you're doing.
This is a human
11
and animal engagement.
12
detriment of certainly our responsibilities as stewards
13
of these whales, but it would also be a detriment to the
14
whales themselves.
15
ability to effect care with a no contact policy would be
16
limited on every level.
No contact would be to the
They are contact animals and so our
17
BY MS. GUNNIN:
18
Q.
And do you know of any example with any
19
particular killer whales at Florida where the limited
20
contact with the those killer whales may have affected
21
your ability to treat or diagnostically understand what
22
was going on with the killer whale?
23
MR. BLACK:
Your Honor, now we're going to go
24
into something well beyond the scope of the Cross.
25
We're going to take Kalina and now, apparently, she
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1
2
would not have died had there been closer contact.

We have been through this once with Ms. Clark.
I'm not sure why we're now going to go through it with
the veterinarian if he's adding anything different.
Now, he's adding some veneer or expertise.
doubt that he's got veterinarian expertise, but not
disclosed here, Your Honor.
8
9
JUDGE WELSCH:
Overruled.
I don't
I think it's within the scope.
Go ahead.
10
BY MS. GUNNIN:
11
Q.
You can answer.
And since we specifically
12
brought up Kalina, let's just talk about a Kalina in
13
this example?
14
A.
Just briefly, it was a $100,000 degree, my
15
veterinary degree, and so the "veneer of expertise"
16
thing kind of stings.
17
MR. BLACK:
Sorry.
18
THE WITNESS:
I know, you've got to strike that.
19
Go ahead and strike it, but for crying out loud.
20
Yes, with regards to Kalina, Kalina was an animal
21
that had a clinical history of having very subtle signs
22
of inflammation, very subtle signs of not feeling well.
23
Her appetite would be pretty good.
24
appetite as an indicator for how they feel.
25
We use an animal's
Kalina was an animal who would show very subtle
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behavioral signs that she wasn't feeling well long
before her blood would give us an indicator that there
might be something wrong.
And, by "wrong," certainly within the monthly
interval, but certainly a couple of days before she
started to -- her blood started to manifest, her
physical appearance gave us a sign that something was
wrong.
The trainers would report, "Something is not
right.
She does not feel right.
10
tense.
Something is not right."
11
And, we would test.
She feels a little
Sometimes we would see normal
12
blood, but she still wasn't right.
13
and then we would start to see the early indicators of a
14
problem and we would intervene therapeutically, we would
15
begin to treat because we had subtle signs of
16
inflammation.
17
We would test again,
At the time that she died, we were hands free from
18
her, and so there is the strong possibility that had we
19
had that same level of surveillance, that same level of
20
intimacy with that whale, I don't know if it would have
21
saved her life, quite honestly, John, but it would have
22
at least warned us early enough or given us -- raised
23
the flag early enough that we would have begun our
24
diagnostic cascade earlier.
25
And in almost every instance, earlier is better
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than later.
So, there is the strong possibility that the outcome
would have been different had we had that same level of
intimacy.
I can't think of a time where it isn't.
MR. BLACK:
Your Honor, I going to move to
strike the speculation testimony about the strong --
about the possibility of what might have happened.
8
9
JUDGE WELSCH:
the opinion.
Overruled.
I'm going to leave
Overruled.
10
BY MS. GUNNIN:
11
Q.
And, Dr. Dold, when you were testifying about
12
working behind this wall that I believe the Secretary's
13
Counsel kept referring to as a barrier, that's not a
14
barrier that prevents the killer whale from moving its
15
fluke, is it?
16
A.
No.
17
Q.
So, would there still be the potential for
18
19
20
21
the killer whale to move while you're taking the blood?

A.
Yes, there is still certainly the potential
that the flukes could move.

Q.
And, you were also talking about procedures
22
and whether the trainers needed to be in the water to do
23
any medical or husbandry procedures.
24
25
How about any kind of medical emergency

procedures that have been done after February 24th?
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Has
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there been a need for the trainers to get in the water
with the killer whales?
A.
To my knowledge, no, we haven't had any
emergency procedures that have required the trainers to
get in the water with the killer whale.
emergent procedure with Taima who we lost where Taima
was -- we were in waist deep water as we were
positioning her for our therapeutic intervention in that
procedure.
10
We've had an
So, I don't recall anyone -- because we've
11
gone back and forth on this definition of in the water.
12
So, free swimming for the course of that procedure, I
13
don't believe we were doing that, but we did have to
14
position her on her side in the med floor.
15
general rule, trainers aren't required to be in the
16
water for any medical procedure or in anything much
17
deeper than knee keep water.
18
in a little deeper water as we were trying to position
19
her for her procedure.
So, as a
I think we probably had Ti
20
Q.
Were there protective barriers in place?
21
A.
There were no protective barriers in place,
Q.
And, could you have done those procedures if
22
23
24
25
no.
you had barriers in place?

A.
We could not have.
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MR. BLACK:
Your Honor, we would move to
strike this as irrelevant.
ability to do husbandry care procedures necessary in
water.
5
6
JUDGE WELSCH:
We haven't challenged the
Overruled.
Did you finish your
answer?
THE WITNESS:
I did, yes.
MS. GUNNIN:
Judge, if I could have one
9
10
second.
(Pause)
That's all the questions I have, Your
Honor.
11
MR. BLACK:
Your Honor, I know typically you
12
haven't allowed any Recross-Examination.
13
three questions here on one topic.
I just have
14
JUDGE WELSCH:
Three short questions?
15
MR. BLACK:
They're short questions, yes,
16
17
sir.
JUDGE WELSCH:
Okay.
18
---o0o---
19
RECROSS-EXAMINATION
20
BY MR. BLACK:
21
Q.
22
Dr. Dold, you just gave the opinion that less
contact had a potentially detrimental effect?
23
A.
Yes, sir.
24
Q.
After Ms. Brancheau's death, it was Sea
25
World's decision not to interact more closely with
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Kalina and to interact the way that it was interacting
with Kalina at the time?
A.
Right.
Q.
That wasn't OSHA's position, was it?
A.
Not that I know of.
MR. BLACK:
Thank you.
JUDGE WELSCH:
Is he excused now as a witness?
MS. GUNNIN:
Yes, Your Honor.
JUDGE WELSCH:
You're excused as a witness, sir,
10
and I ask that you not discuss your testimony with other
11
persons.
12
THE WITNESS:
Understood.
13
JUDGE WELSCH:
Thank you.
14
15
(Witness Excused)
JUDGE WELSCH:
Okay, why don't we take a
16
five-minute break before you resume with Mr. Andrews.
17
We stand adjourned until 20 after.
18
19
20
JUDGE WELSCH:
21
For the record, we have completed the testimony of
22
Dr. Dold, and we're going to resume with the testimony
23
of Mr. Andrews who has been identified and has been
24
qualified is the expert for Sea World in this case.
25
Mr. Andrews, I'll remind you you're still under
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oath.
Do you understand?
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
With that, Ms. Gunnin, your
4
5
witness.
MS. GUNNIN:
Yes, Your Honor.
Thank you.
---o0o---
JEFFREY R. M. ANDREWS,
continued his testimony as follows:
10
---o0o---
11
DIRECT EXAMINATION
12
13
BY MS. GUNNIN:
Q.
Mr. Andrews, in your review of Sea World's
14
training protocols for its killer whales at the Sea
15
World of Florida Park, do you have an opinion about
16
whether those protocols were providing safety to the
17
killer whale trainers that would interact with killer
18
whales?
19
A.
Yes, ma'am, I do have an opinion, and that
20
would be after extensive review of those documents, of
21
those safety protocols and standard operating
22
procedures, comparing them to those of other facilities
23
and even comparing them to what they were like when I
24
worked at Sea World over ten years ago and their
25
improvements over those ten years.
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The overall procedure for the whole
collection of killer whales there, I reviewed, if I
remember correctly, 200 different individual procedures
and policies and rules surrounding the management of the
killer whale regarding the safety and operations.
it's not only the sheer number of rules that I read, but
the content of those rules that they weren't just
written in order to provide an exhaustive set of
procedures for the trainers to follow.
And,
But, instead,
10
they were all substantial and directed the trainers on
11
how to do things safely and appropriately in the near
12
term and over the long haul.
13
So, my opinion would be, yes, that their
14
operating procedures and safety rules were very
15
impressive compared to that of other facilities that I'm
16
familiar a with.
17
Q.
And, how about the trainers themselves?
What
18
is your opinion about how they were interacting with the
19
killer whales prior to February 24th?
20
A.
Again, based on my knowledge of the training
21
program at Sea World and specifically the Killer Whale
22
Stadium, relative to trainers elsewhere in the
23
zoological industry, not only other killer whale
24
trainers in the United States and elsewhere, other
25
marine mammal trainers elsewhere and just generally
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other animal trainers and a variety of taxa, they stand
above bar.
individual.
In fact, they set the bar for the
Sea World is a very effective organization,
and they do, of course, a lot of good things.
But, I
will say that Sea World doesn't do everything great.
You know, they don't do everything perfectly.
Yet, one thing that they do better than
anybody else out there is produce effective animal
10
trainers.
11
organization I've ever come across.
12
leading the animal training field for several decades.
13
They are by far the best animal training

They have been
So, when it comes to identifying model
14
training programs and examples of individual trainers
15
that I would like to have in other facilities, I've
16
looked to the Sea World program as that is what we would
17
like to have.
18
Q.
19
20
How does that training program relate to the
safety of the trainers themselves?

A.
As we've been talking -- and I've heard
21
testimony over the last couple of weeks about this --
22
there is an obvious benefit to having an effective
23
training program that delivers predictable behavior on
24
the reliable behavior, in the near term and over the
25
long haul.
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And with the skills that Sea World applies
the scientific principles and the art of actually
training the animals, they produce phenomenal results
compared to their peers.
predictable, reliable behavior what does nothing other
than ensure safety because the animals are doing what
you want them to do.
8
9
10
11
Q.
Those results provide
If you could, just explain a little bit more
about how that ensures safety?
How does that really
affect the safety of the trainers?

A.
By increasing the frequency of the animals
12
doing what it is that they've been asked to do.
And, of
13
course, the trainers are asking the animals to do things
14
that not only allow for them to take care of them better
15
and produce the behaviors that they're desiring, but
16
they're also directly competing with undesired behaviors
17
that may endanger them.
Right?
18
The Sea World animal training has always been
19
one that is safety is paramount, and at any time and for
20
decades, the philosophy given to individual trainers was
21
for them to be empowered to make their own decisions,
22
to not feel pressed into doing anything that they were
23
uncomfortable doing.
24
25
So, with that in mind, with that type of

safety philosophy, that is ubiquitous in the Company,
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all the way down to the newest trainer and the fact that
the animals are being trained to reliably perform
behaviors that the trainers want.
not doing the behaviors that the trainers don't want,
such as any sort of aggressive or dangerous behavior.
You're getting a very, very high percentage of reliable,
safe behavior from their killer whales and other
animals.
Q.
Therefore, they're
And, how about the killer whales themselves
10
and the training methodologies used by Sea World?
11
is your opinion of that program?
12
A.
It's the model for other programs.
What
Even
13
though killer whales are marine mammals, the techniques
14
and philosophies employed by the killer whale trainers
15
and other trainers at Sea World is one that is
16
effective, not only there but elsewhere.
17
is the industry standard.
18
standard for decades.
19
So, again, it
It's been the industry
It does set the bar.
So, when you are looking at, say, the
20
International Marine Animal Training Association and the
21
leadership within that organization, for decades, Sea
22
World has not only led the killer whale component of
23
those organizations of IMATA and other organizations,
24
and one might deduce that that's because Sea World has
25
the vast majority of killer whales in the United States,
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but it's not just with killer whales where they lead the
field.
animal training that is represented by organizations
like that.
They lead the field also with other marine
So, to answer your questions, it is the
model, and it's the model that I use and others like me
use not only with marine mammals at other zoos but with
all animals at other zoos.
Q.
What is your opinion about the long-term
10
effect of Sea World killer whale trainers not having
11
close contact with the killer whales?
12
A.
There are at least two somewhat related, I
13
believe, negative effects of reducing the close physical
14
contact and frequent physical contact between the
15
trainers and the animals, one being that the
16
reinforcement history between the animals and their
17
trainers is going to be reduced.
18
And, it's very important that this
19
relationship with the animals be maintained, and the
20
ability to reinforce the animals in ways other than
21
providing them, say, just fish or toys.
22
Human contact appears to be very effective in
23
not only developing the relationship with the animals
24
but also in providing them different opportunities for
25
reinforcement, and having variable reinforcers for the
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1
2
killer whales is important in maintaining behavior.

One of the most effective secondary
reinforcers for the killer whales is touching them and
rubbing them, letting them know you care about them.
Well, that's probably speculative, but not unlike
petting your dog or your cat, the killer whales appear
to enjoy that.
8
9
Removing that would certainly negatively

affect the ability to maintain this reinforcement
10
history or relationship with the whales.
11
because of that, it would also in my opinion negatively
12
affect the ability to care for the animals as well, the
13
ability to not only conduct certain types of necessary
14
husbandry procedures and whether or not these are
15
routine procedures or less routine, let's call it,
16
emergency procedures with the animals if the trainers
17
were restricted from certain types of tactile
18
interaction with the animals.
19
Secondarily,
But they would also reduce safety.
Back to
20
husbandry care.
When you're able to touch closely your
21
animals, you learn things from your touch, and that's
22
not unlike any other animal field; that your ability to
23
physically touch the animal, gives you information about
24
what's going on with the animal.
25
through them.
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And you need to be able to, say, just inspect
the color, texture, or condition of their skin.
would need to be able to touch their body all over, but
in regards to safety, one of the most important things
when it comes to safely working around animals like
whales or elephants for that matter and other species is
information, of course.
information from the animal so you have an idea what the
animal is going through right now and maybe what it is
10
11
Right?
You
You need to get
potentially about to do.

And, we receive this information through, you
12
know, normal processes like our sight.
13
at the animal and through what it's doing right now,
14
subtle changes in its behavior right now, you can more
15
accurately predict what it's about to do.
16
So, you can look
You can also listen to what the animal is
17
doing and what's going on around the animal's
18
environment and through these sounds be able to more
19
accurately predict what it's about to do.
20
But, your hands also give you a vast amount
21
of information.
Right?
By having your hands on the
22
animal, that's another medium of information, and
23
sometimes your eyes are distracted, maybe not distracted
24
off of something that's irrelevant, but maybe your eyes
25
are needed to hold a piece of equipment to communicate
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to somebody else, or maybe you're listening to
directions from somebody else.
So, one of your mediums or media of receiving
information is currently preoccupied.
exceptionally important to maintain that type of
information allocation coming your way.
Q.
Your hands are
Earlier in this case, we heard OSHA's expert,
Dr. Duffus, give a opinion about killer whales and their
predatory nature and how that predatory nature is
10
instinctive and you can't train that out of them.
11
12
13
Do you have an opinion about the testimony

that you heard Dr. Duffus give?
A.
Yes, I think that what Professor Duffus said
14
was that killer whales have a potential of instinctual
15
predatory causation for aggression, right?
16
I wouldn't disagree.
17
And, in that
I would just simply perhaps offer more
18
information to that discussion.
19
accurate; that there are lots of causations, aggression
20
and predatory instinct being one of them.
21
In my opinion, that is
But, to talk more about what drives
22
aggression and what we teach trainers, what Sea World
23
teaches its trainers now, what I teach trainers
24
elsewhere, are other types of aggression causation, and
25
I would offer up instinctual predatory aggression in
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killer whales is probably very, very uncommon if not
entirely absent.
And, to do that, I would need to probably
offer up three different sets of information.
very quick, and one might take me a little bit longer.
Two are
Very quickly, I would say that instinctual
predatory aggression or the potential for such in killer
whales is probably nearly absent if for no other reason
due to the fact that the animals' nutritional needs are
10
satiated.
11
their nutritional needs are always met.
12
never food deprived.
13
14
They're already fed and their dietary needs,
JUDGE WELSCH:
You're making a distinction
between in the wild versus whales in captivity.
15
THE WITNESS:
16
whales, yes, sir, right.
17
JUDGE WELSCH:
18
The animals are
I'm talking of captive killer
The instinctual predatory nature
of killer whales exists in the wild --
19
THE WITNESS:
Absolutely, in the wild.
20
JUDGE WELSCH:
-- as well as in captivity, I
21
guess.
22
THE WITNESS:
Right.
23
JUDGE WELSCH:
But, what you're saying is if
24
they're in captivity, certain elements of aggression may
25
be diminished?
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THE WITNESS:
Significantly reduced if not
completed eliminated, due to the fact that they are
nutritionally taken care of.
The other thing I would just offer up just briefly
is that, you know, I worked with the killer whales for a
very long time, and I have worked with killer whale
trainers even longer, and I never once nor have I heard
of anybody else that I've work with ever once be
frightened of a killer whale due to potential predation.
10
I never once worried about being eaten, right, or
11
partially eaten due to a predatory instinct.
12
once.
13
know, around killer whales but never because of that.
14
Ever.
15
Never
Not to say that I haven't been frightened, you
And, again, their nutritional needs are met, but
16
there is a more important thing here.
17
if you don't mind, sir.
18
little bit to get through this, but what is more
19
important to a certain animal because all animals have
20
some degree of aggressive repertoire.
21
And, bear with me
It will take me probably a
What is more important, what is instinctually
22
embedded in the animal genetically or what is learned
23
over the course of its life through its experiences and
24
it's environment, and it's a difficult question to
25
answer because the nature versus nurture conundrum has
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been debated for literally thousands of years, and to
talk about this, I'm going to need to offer up a little
bit of history here.
The lot of this theory is based on human
psychology and in child development, and in the late
1600's, early 1700's, Jean-Jaque Rousseau and John Locke
both described different opinions as to what that was.
What was more important or I should say what actually
was relevant and what was irrelevant, and Rousseau
10
argued that through determinism, children and humans
11
were genetically -- or I shouldn't say genetically --
12
but were preprogramed divinely to behave in certain ways
13
over time; where John Locke argued, instead, that
14
children and people were blank slates, tabullarasa,
15
which simply means blank slate.
16
history.
17
They learn from
What he's referring to is that they are
18
preprogrammed.
19
So, this school of thought between nature versus nurture
20
didn't die out, this debate didn't die out.
21
Instead, they learn from this history.
In the 40's and 50's, two prominent psychologists,
22
Jean Piaget and Erik Erikson continued this debate, and
23
like Freud, they put forth different psychosexual,
24
psychosocial incognitus development stages that again
25
said children and people go through these stages
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sequentially and predictably over time, where B. F.
Skinner is instead saying that, no, people's behavior
and frequency of that behavior is controlled by the
consequence of the behavior and their experiences in the
environment.
So, they're still debating whether or not which
one is relevant and which one is irrelevant.
to the current time, and in the last decade or two, the
debate has centered more around not which is relevant
10
and which is irrelevant, but which is more important,
11
which is driving the behavior for certain animals and
12
certain specimens within animals and in certain
13
scenarios.
14
But, skip
So, it's not like it's one or the other.
It's
15
going to be a combination of both.
16
have been arguing that is somewhat subjective of lower
17
animals, what's called insects, let's say, in
18
vertebrates that insects are going to respond more
19
instinctually, and it's subjective because we're humans
20
and we're setting the scale.
21
right or wrong.
22
And, also people
So who knows if we're
But, nonetheless, the lower animals are going to
23
respond more instinctually to the same stimulus.
24
you have a collection of ants, and you apply a stimulus
25
to one of those ants, it's probably going to respond the
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1803
same way, that different ant is going to respond to the
same stimulus as the next ant and the next ant.
all going to respond the same way to the same stimulus.
They're
But, as you get to higher and higher animals,
what's called primates, right, that different primates
of the same species will possibly respond differently to
the same stimulus.
personality.
Some people might call that
Right?
So, which animals are more likely to be responding
10
not instinctually to given stimulus, but instead
11
differently to a stimulus based on its experiences.
12
Those would be the higher animals, such as elephants,
13
humans, great apes, killer whales, and there are others.
14
So, what I'm offering up here as an opinion is
15
that a killer whale being one of these higher animals is
16
more likely to be responding to certain stimulus based
17
and its experience rather than its instinct.
18
So, that the causes of aggression in a killer
19
whale are more likely to be triggered, as in one
20
document that I saw earlier from the Secretary, are
21
going to be triggered not by an instinctual causation,
22
such as predatory nature, right, but, instead, by
23
something else.
24
25
So, if we can identify what those other things

are, learn about them, teach them, we're much more
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effective at reducing aggression rather than just by
holding that instinct doesn't come into play.
BY MS. GUNNIN:
Q.
Mr. Andrews, in reviewing Sea World's
programs for the training of the killer whales and the
killer whale trainers, did you make any kind of findings
or form any kind of opinion about whether or not Sea
World had engaged techniques to reduce the causes of
aggression in killer whales in captivity?
10
A.
Yes, ma'am.
Not only through documentation
11
that I reviewed in response to safety and such, but also
12
being very familiar with the program and how much effort
13
that Sea World in the past decades and still currently
14
puts into moderating aggression and learning from the
15
precursors to aggression so aggression would be avoided.
16
So, Sea World has been for a number of
17
decades now refining and improving its documentation and
18
staff development of these principles and aggression
19
management.
20
developed these publications about the causes of
21
aggression, understanding the causes, and possible
22
reduction techniques.
23
So, it was Sea World decades ago that
So, what Sea World put forth, based on the
24
literature and its own experiences that although
25
aggression can be caused by predatory instinct, it's
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more likely to be caused -- and, again, this is Sea
World talking -- more likely to be caused by either
social issues.
territoriality, dominance and such would be one category
of causation.
So, whether it's food acquisition,
Another causation would be hormonal
fluctuations, and these are things that you learn to
identify and, therefore, avoid when animals are in this
type of situation.
10
Another general causation is physical duress.
11
And, what we mean by that is when the animals are either
12
ill or injured or in some sort of stress environment.
13
And, then, lastly, one that is called
14
schedule induced aggression which is typically
15
aggression that is caused based entirely on how it's
16
experiencing its training program.
17
animals can be taught to be purposely aggressive, such
18
as in the case of a attack dogs, but also certain
19
trainers without the right skills can be inadvertently
20
accidentally increasing precursive behavior, frustrating
21
behavior or even aggression.
22
about this, we can avoid it.
23
So, in other words,
Therefore, if we know
And just simply bad training methodology can
24
also lead to aggression, such as consistency in an
25
animal's environment.
And, I have heard testimony here
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about how consistency can be effectively used to reduce
undesired behavior, and that is the truth.
its nonreinforcing properties, if you continue with this
consistent approach and consequence of behavior, that
nonreinforcing property can lead to frustration and
aggression.
Because of
Therefore, the Sea World trainer needs to be
able to maintain a variable reinforcement schedule with
reinforcement variety so a variable reinforcement
10
schedule, meaning that they don't always reinforce
11
ever single time the animal does something correctly.
12
Sometimes they reinforce every second time, every third
13
time, every fourth time.
14
"When may I get reinforced?"
15
it's environment.
16
different types of reinforcement.
17
So, the animal is guessing,

And, it's not predicting
But, reinforcement variety means
You know, even if it's every third time, it's
18
not like it's food, it's something else, and one of
19
those very, very valuable reinforcers that you use in a
20
reinforcement schedule and in reinforcement variety is
21
your human touch, being able to pet them, to rub them
22
down.
23
literally for hours, and they just melt in your arms.
24
25
They appear to like it.
Q.
You can rub them down
And, did you form an opinion about whether or
not Sea World had used techniques to reduce the
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1
2
aggression?
A.
Yes, they employed, you know, these
principles and their own experience very effectively for
decades, and learning over time through examining the
incident logs, looking at them, there are fewer and
fewer incidents occurring over time.
reduction in the frequency of aggression in Sea World's
killer whales and the number of incidents of aggression
with Sea World's killer whales, and that's through an
I see a trend of a
10
application of these techniques and teaching the staff,
11
the front line staff what these techniques are, to
12
identify what those causations are and how to avoid them
13
in the first place.
14
So, just looking at the numbers between 1996
15
and February of 2010, Sea World of Florida had zero
16
incidents of aggression.
17
Q.
Did you say '96?
18
A.
Since 2006, sorry, to February of 2010.
19
had zero incidents of aggression and if I remember
20
right, that was like 52,000 interactions without an
21
aggressive incident.
22
opinion.
23
Q.
24
25
They
That's pretty impressive in my
Do you think that was just simple luck that
they didn't have any type of incidents?

A.
Absolutely, that's not luck.
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result of a training program operating in such a way
that it is increasing the frequency of desired behaviors
and extinguishing the frequency of undesired behavior
such as aggression.
Q.
Turning to Tilikum who was not treated quite
the same as the other killer whales at the park in
Florida, could you provide an opinion about the manner
that Sea World of Florida interacted with Tilikum prior
to February 24, 2010?
10
A.
I can.
It's going to be not based on any
11
sort of assessment I performed for this proceeding,
12
other than some documentation that I've read, but more
13
based on my knowledge of the program surrounding Tilikum
14
from the time that he was transferred from Sea Land and
15
my personal knowledge of how he was trained, and in
16
discussions with Mr. Tompkins and Ms. Flaherty Clark.
17
But, I'll tell you that the opinion and the impression
18
that I got for many years was that he was a very
19
predictable and even tempered whale relative to other
20
killer whales.
21
So, despite of the fact that he's a full
22
grown bull killer whale, this animal appeared to be what
23
I would dare say a good whale; he was a good whale.
24
And, I found in the incident logs not one incident of
25
aggression with that killer whale in the log at all; not
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1
2
even one.
Q.
Let me ask you, you've heard testimony in
Cross-Examination of Ms. Flaherty Clark about a monthly
log for Tilikum, and I think you referenced yesterday
what you had reviewed those monthly recaps, and you've
heard testimony about a behavior that Tilikum had
engaged in --
8
9
MR. BLACK:
Your Honor, I don't mind a lead-up
to a question and recall the testimony, but telling the
10
witness that you heard this, you heard this, you heard
11
this is simply not appropriate.
12
Honor.
13
14
MS. GUNNIN:
That's leading, Your
Well, I can say does he recall
that testimony.
15
MR. BLACK:
Yes.
16
MS. GUNNIN:
I'll say, do you recall the
17
testimony --
18
JUDGE WELSCH:
19
BY MS. GUNNIN:
20
Q.
21
Overruled.
Go ahead.
-- about Tilikum and his behavior that
occurred that was noted on a monthly recap?
22
A.
I do recall testimony, yes.
23
Q.
Do you have an opinion about that?
24
A.
Yes, and I was sort of wanting to scream it
25
out when I was listening to the testimony, that it
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wasn't aggression.
aggression and hard to define as aggression or even a
precursor, and certainly didn't meet the criteria set to
qualify it as aggression.
It was barely even a precursor to
And, therefore, an incident like that -- I
shouldn't even call it an incident -- an event like that
is entirely appropriate to discuss amongst the team and
peers, but it wouldn't warrant really going much further
than that, honestly.
10
Killer whales have a very large behavior
11
repertoire and emitting a behavior such as thrashing
12
your head or squirting water or whatever it was is a
13
pretty benign thing, and even if it was less passive
14
than I might be representing right now, nonetheless the
15
whale was swimming around the pool as I read it, and it
16
wasn't directed at anybody in general, and the whale was
17
behaving in a way that we would find appropriate and
18
beneficial.
19
If he was frustrated in that moment, we would
20
want him to be swimming away from us, and that's,
21
indeed, what he's doing.
22
JUDGE WELSCH:
23
24
25
Did you actually read that
document?
THE WITNESS:
I did.
I read a document that
referred to that same event.
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JUDGE WELSCH:
But, if I recall the document,
that was something that was prepared by the trainer at
the time.
THE WITNESS:
Yes.
JUDGE WELSCH:
And, the trainer put it under the
category of aggression; is that correct?
THE WITNESS:
That's right.
MS. GUNNIN:
Judge, I don't think that was Ms.
Flaherty Clark's testimony that it was prepared by the
10
trainer.
11
but I don't believe the testimony was this was from the
12
trainer.
13
14
15
There was a reference to the trainer involved,
It wasn't an incident report.
JUDGE WELSCH:
Do you have any idea who prepared
THE WITNESS:
I have no idea who prepared it,
that?
16
whether it was the witness, the spotter, the trainer
17
involved, I'm not sure.
18
19
JUDGE WELSCH:
But, it was put under a category
labeled "aggression"?
20
THE WITNESS:
Right, it was.
21
JUDGE WELSCH:
And, you don't know whether or
22
not it was prepared by somebody that was actually on
23
site, actually observing the condition?
24
THE WITNESS:
Right, right.
25
JUDGE WELSCH:
But, you're pretty far removed.
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All you're doing is reading from the document itself?
THE WITNESS:
Yes.
I don't even recall when it
happened, honestly, but I think -- and I'm not sure how
much oversight is applied to those documents.
incident report has a lot of oversight.
An
JUDGE WELSCH:
I understand.
THE WITNESS:
A lot isn't much more than a lot.
So, I think with more oversight, that might have been
analyzed as something that perhaps is inappropriate as
10
an entry or at least not an entry in that category.
11
JUDGE WELSCH:
12
BY MS. GUNNIN:
13
Q.
14
15
head?
I understand what you're saying.
What would that mean, the thrashing of the
What does that mean to you?

A.
Well, that could mean so many different
16
things, I don't know.
17
simple as him rehearsing a behavior that he's trained to
18
do to something that is perhaps more spontaneously
19
emitted for who knows what reason, completely anomalous.
20
21
22
Q.
You know, it could be from as
I wasn't really asking you why.
I was asking
you what would that behavior look like?

A.
What would it look like?
Again, it's hard to
23
say based on the document, but basically it was him
24
having his mouth open like this with his mouth open.
25
Then, he moves his head back and forth like this, and
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the amplitude of how far he moves his mouth back and
forth says a lot, and the document does not.
So, that injury, he might have only just done
this (demonstrating); I don't know.
reading it, right, or it could have been way back and
forth like so, right?
behavior speaks a lot.
anomalous, it could have been just rehearsing the
behavior he was trained to do.
10
Q.
I can't tell from
And, the intensity of that

Again, it could have been
I don't know.
With regard to Tilikum and the specific SOP's
11
that you reviewed, do you have an opinion about whether
12
or not those are adequate to protect the killer whale
13
trainers that were interacting with Tilikum?
14
A.
I do believe, yes.
The fact that -- and my
15
opinion here is going to be not unlike the overall
16
protocols in that there are a lot of them, and in this
17
case, that section is devoted entirely to Tilikum.
18
Despite the fact that he had never had an incident, he
19
still received an entire section indicating Sea World's
20
awareness of the need for additional safety around this
21
animal, and there were nearly, I think it was about
22
70 pages, nearly a hundred rules, if I remember right,
23
relating directly to Tilikum, and it's not just the
24
number, but the content of them; you know, what they
25
spoke to.
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So, it wasn't just for show that we have a
large section and a bunch of rules, no.
rules themselves, yes, in my opinion directed the staff
to work in a very specific and safest way possible
around that whale.
The specific
And other things that, you know, perhaps
aren't on paper.
It was the level of experience of the
people that were working the animals.
minimum standards for who could work that particular
There were
10
killer whale.
11
working the killer whale far exceeded what those
12
standards were.
13
Q.
But, in reality, the people that were
And, in terms of where the trainers were
14
standing to work with Tilikum, and the dry work that was
15
being performed, you have heard a lot of testimony in
16
this case about the procedures they were doing with
17
Tilikum.
18
What is your opinion about the close
19
proximity that they were standing with Tilikum prior to
20
February 24, 2010?
21
A.
I find it to be entirely appropriate, based
22
on my experiences with other bull killer whales, other
23
killer whales in general, and my observations of them
24
working with Tilikum, it appeared to be an entirely
25
appropriate way to work around them.
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1
2
Q.
And, you formed that opinion with knowledge
about the 1991 incident that he had at Sea Land?
A.
Yes, ma'am.
Q.
And, how were you able to form that opinion
based upon having knowledge of the incident in 1991 at
Sea Land?
7
8
9
10
11
12
A.
I'm sorry, how was I able to form my opinion
Q.
That it was safe for them to work in close
of?
proximity with Tilikum?

A.
That it was safe?
My experience working with
killer whales, I suppose.
13
Q.
Let me ask you a different way.
14
poor question.
It was a
15
Knowing what happened at Sea Land in 1991,
16
what factors play into your opinion that it was still
17
safe on February 23, 2010, to work in close proximity to
18
Tilikum?
19
MR. BLACK:
Just a foundational objection,
20
Your Honor.
We don't know what he knows about what
21
happened at Sea Land or not.
22
either ambiguous or without foundation.
Knowing what he knows is
23
MS. GUNNIN:
I'll ask the question --
24
JUDGE WELSCH:
25
BY MS. GUNNIN:
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1
2
3
Q.
What do you know about what happened in Sea
Land in 1991 with Tilikum?

A.
I know a great deal.
I will say that I did
not go to Sea Land myself.
a pregnant wife at home at the time, and it turns out
the transfer of that whale happened ten days exactly
before he was born.
not actually go there.
I was asked to go, but I had
So, I chose it.
Right?
But, I did
However, I was very involved in the
10
development of the program to retrain him there and then
11
to move him.
12
those that did go and their accounts of the facility and
13
the people and the whales up there, as well as reading
14
the lengthy coroner's report submitted for this
15
proceeding, the coroner's report referring to Keltie
16
Byrne.
And, of course, I'm very familiar with
17
And through that, I would say that the two
18
scenarios are unrelated enough to the point where the
19
circumstance of events that occurred in Sea Land were
20
unrelated to the facility and scenarios in which people
21
work with them at Sea World in Florida.
22
For example, my understanding is -- and I've
23
heard it testified here as well -- that the platforms on
24
which people were walking around at Sea Land were
25
unsecure, that they were unstable as opposed to the
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facility at Sea World of Florida.
So, the chances of somebody, say, falling
into the water were minimal.
from Professor Duffus' report or perhaps his testimony,
the training program at Sea Land was unsophisticated in
comparison to that at Sea World of Florida.
in mind, I don't think there's a whole lot of relevance
to the scenario in Sea Land to the facility in Florida.
Q.
If I can recall either
With that
As part of your review of this case, have you
10
reviewed an incident report that arose out of an
11
incident that occurred at Loro Parque on December 24,
12
2009?
13
A.
I have, yes.
14
Q.
And, you have heard testimony or there has
15
been testimony presented, have you heard that testimony
16
in this case about the incident report and the events
17
from the December 24, 2009, Loro Parque event?
18
A.
I have heard that too, yes.
19
Q.
And, after hearing the testimony and
20
reviewing the incident report, do you have an opinion
21
about the appropriateness of Sea World continuing to do
22
water work with its killer whales at Sea World of
23
Florida?
24
A.
25
I do have an opinion.
I feel that Sea World
of Florida acted appropriately, and if I were in the
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same position, I probably wouldn't have done anything
any differently; that Sea World of Florida analyzed the
series of events that occurred leading up to the
incident in Loro Parque, analyzed them and came up with
its conclusions, communicated in a interactive way with
the killer whale management and staff at Sea World of
Florida, and determined that the events were really
unrelated, right; that the same type of situation and
scenario wouldn't occur at Sea World of Florida.
So,
10
they in my opinion responded appropriately.
11
assessed what was going on, they determined the
12
applicability of what happened there to their own
13
situation, determined that Sea World need not change
14
what they were currently doing and resumed with their
15
activities.
16
17
18
Q.
They
And, why did you form the opinion that their
analysis was correct about the Loro Parque incident?

A.
Well, my opinion of the incident at Loro
19
Parque -- and I would assume my assessment of it is
20
similar to that of the management at Sea World and based
21
on testimony that seems to be correct -- that the series
22
of events that occurred at Loro Parque were and are
23
exceptionally unlikely to occur at any of the Sea World
24
parks, including Sea World of Florida; that the way I
25
see it was -- and I've heard similar testimony -- that
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it was a series of mistakes, made one after another,
after another, after another, leading up to probably the
biggest mistake of all which led to the whale going and
taking the trainer underwater, and that that type of
scenario would never occur at a Sea World Park due to
the extensive experience and greater skill and
experience of all of the people that would have been
working the killer whales that day, including the
leadership of the stadium on that given day.
10
And, also, you know, the killer whales are
11
trained to tolerate mistakes.
12
tolerate their own mistakes, they're trained to tolerate
13
human mistakes.
14
inexperience of some of the people there that there were
15
just simply too many mistakes, and after one or two at
16
Sea World Park, the session would have changed
17
dramatically.
18
saying that the session would have ended, but they would
19
have proceeded in a different direction, not letting it
20
escalate to that point.
21
Q.
They're trained to
In this scenario, however, due to the
Something would have changed.
I'm not
And, what is your opinion about some of these
22
prior incident reports and indications of one particular
23
whale engaging in some type of behavior that was
24
undesirable as indicated in the incident report and that
25
applying to all killer whales generally?
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A.
Okay, I think I know what you're asking.
Q.
Do you want me to rephrase it?
A.
I've got it.
Yes, if I'm answering your
question correctly, and a what I'm trying to get across
to Your Honor here is that I think what I heard in
testimony during this week and, I think, before is that
a certain aggressive or pseudo aggressive event that may
have occurred a decade or two ago that is perhaps in
that book could have been deemed to be caused by a
10
certain type of environment scenario or human behavior
11
or whale behavior, and in that particular incident, it
12
was determined that perhaps this was a mistake or this
13
was the cause of it.
14
And, then, what appears to be assumed from
15
testimony or questions that I've heard is that,
16
therefore, then, that same type of scenario should never
17
occur again in the future with not only that whale but
18
with any whale.
19
checkoff list here, right, and say in this particular
20
incident the trainer was on his knees next to a whale,
21
and because the conclusion for that particular incident,
22
for that particular whale, and that particular area of
23
the pool with that particular trainer, it was concluded
24
that perhaps he shouldn't have been on his knees solely
25
with that whale in that particular part of the facility.
So, in other words, you have like a big
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Then, we should never be on our knees around any whale
at any facility, in any park in the facility.
And, that's just simply not the case.
If
that is the case, then we would check that off our list,
and then we would check the next thing off our list, and
we would check the next thing off our list and then we
would have them all eliminated.
be on you knees, and you can no longer hold your head in
such a certain way, and that would not only be awkward,
10
So, you can no longer
but it wouldn't be effective.
11
Every whale is different, just like humans,
12
and every situation and scenario is different.
13
might be attributed to the cause of a precursor or even
14
an aggressive act in one whale with one scenario
15
wouldn't be applicable to another.
16
So, what
So, what Sea World has done, however, is
17
learned from each of these incidents in such a way that
18
it's to the core of our root cause that perhaps leads to
19
frustration or perhaps aggression, and can create or
20
better analyze that and assess it and learn from it to
21
be able to better control and respond to a larger root
22
cause than something so specific as being on your knees.
23
24
25
Q.
And, what's your opinion about the usefulness
of these incident reports?

A.
That they are very valuable learning tools
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and the fact that the team involved in a particular
incident needs to write it down on paper, first of all
forces them to reflect on what happened, and oftentimes
new information becomes available through a person's
recollection and through other opinions that come forth.
Oftentimes, you might not have seen something if you're
working the animal, but somebody somewhere else might
have seen something that you think can be applied to the
knowledge of that particular incident.
10
So, it's not only personal reflection for the
11
everybody involved but everybody that works in that
12
stadium has to be aware of it.
13
Sea World, not only did everybody have to sign off on
14
it, but they had had to initial a little form that we
15
had to put on top of the incident log or the incident
16
report, but even incident reports that came from other
17
facilities which forces not only your people at the
18
particular stadium that were involved to know about it
19
but people at other parks in other states to know about
20
it, but when an incident report came from another park
21
into our facility, I made sure every single person read
22
it and initialed off that they had read it.
23
In fact, when I work at
So, it's a training tool, right, and in my
24
recollection, it was done in a very effective way; that
25
there was very little lapse in the training learning
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opportunity because we made sure that everybody read it
it and signed off on it.
Q.
And, the collection of incident reports, is
that something that you have found with your experience
is that other institutions, other zoological facilities,
is that unique to Sea World?
A.
It is no longer unique.
However, it was at
the time.
At the time, I knew of no one else that was
doing it, and then when I moved on to the other
10
facilities, I found no one was using the learning tool
11
as such.
12
Diego Safari Park, and at most of the other facilities
13
that I was referring to where I work from time to time.
14
15
But, now, we have them at San Diego Zoo, San
Q.
Have you read the AZA accreditation
standards?
16
A.
I have.
17
Q.
And, in those standards, is there any
18
reference to guidance for an institution who is to be
19
accredited by AZA with regard to killer whales at their
20
facilities?
21
A.
There is.
22
Q.
And, can you recall what those requirements
A.
The requirements were that the facilities
23
24
25
are?
holding killer whales and other similar animals must
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have what they call training programs, must have
programs and safety protocols in place.
if I'm not getting ahead of you, does, indeed, have both
a very effective, longstanding animal training husbandry
program and a longstanding and effective safety program
for its trainers.
Q.
And, Sea World,
And where is that guidance found within the
AZA accreditation standards?
specific section number for you to recall but the
10
subject.
11
A.
12
Requirements."
13
Q.
14
And, I'm not asking for a
Yes, I believe it's under "Safety
And, do you know whether Sea World is an
accredited institution by AZA?
15
A.
Sea World is an accredited institution.
16
Q.
Mr. Andrews, what is your opinion with regard
17
to the allegation by OSHA that Sea World was acting
18
willfully with regard to the safety of its killer whale
19
trainers?
20
A.
My opinion is pretty strong on that subject,
21
and I have a very hard time understanding how anybody
22
could spend even a small amount of time with the staff
23
on the ground and more so after reading the voluminous
24
safety protocols and operating protocols, that Sea World
25
was doing nothing other than for decades providing and
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training for the most safe program possible.
again, just the cultural philosophy of the Company was
always when I was there and from everything I read from
the improved manuals in the time that I've been gone, it
seems very obvious that that cultural philosophy is one
of safety being paramount, especially around animals
such as killer whales.
8
9
10
11
Q.
And,
Did you hear testimony from Professor Duffus
that Sea World is the expert in the field of the

maintenance of killer whales?
A.
I did hear what, yes.
I also heard him
12
testify that the trainers' ability to maintain close
13
contact with the animals would increase the
14
predictability of behavior.
15
Q.
What is your opinion about that testimony?
16
A.
That Sea World is the expert in this -- what
17
the testimony was?
18
Q.
What is your opinion about that testimony?
19
A.
Can you remind me what the testimony was?
20
Q.
Yes, the opinion that was offered by OSHA's
21
own expert that Sea World is the expert in the field of
22
the housing of marine mammals and in particular killer
23
whales?
24
A.
25
experts.
I would agree with that.
They are the
They have been leading this field in killer
CARLIN ASSOCIATES
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1
2
whale management and husbandry for decades.

Q.
Are you aware of my other institution that is
housing killer whales in the United States that has a
different program than Sea World?
5
6
MR. BLACK:
BY MS. GUNNIN:
Q.
10
Repeat the
question.
Subject to recall.
Are you aware of any other facility in the
United States that houses killer whales that has a

different program?
11
A.
That has a different type of program?
12
Q.
Yes.
13
A.
Just foundationally?
14
Q.
Yes.
15
A.
Interestingly, I hate to be so -- I'll just
16
say there are a number of facilities in the United
17
States that house killer whales, and I can think of two
18
right off the top of my head.
19
whale each, and both are managed by an ex-Sea World
20
employee.
21
programs, based on the Sea World model.
22
23
24
25
Q.
Both have one killer
So, no, they're virtually synonymous
And, for the record, who are what other two
aquariums?
A.
One of the Miami Sea Aquarium and the other
is -- forgive me if I don't remember the name of the
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organization because they change it so often -- it's Six
Flags Marine World, but I think it's called something
different now -- Six World Adventure --
Q.
Where is that located?
A.
In Vellejo, California.
MS. GUNNIN:
Judge, could I have one second?
JUDGE WELSCH:
Yes.
MS. GUNNIN:
Your Honor.
10
MR. BLACK:
I thought there was a report.
11
MS. GUNNIN:
There is, Your Honor, but we're
12
13
not going to introduce the report.

MR. BLACK:
We might suggest, since we started
14
so early, that perhaps we take a lunch break now and
15
make as efficient as possible the Cross-Examination, and
16
then since we started early and we're going to go and
17
we're going to finish this up today, that if necessary
18
we take one or two afternoon breaks if it starts to drag
19
out long.
20
JUDGE WELSCH:
I intend to take several breaks
21
for my Court Reporter.
22
MR. BLACK:
We can start, if you want to use
23
the time most efficiently, and, of course, there's been
24
a lot of testimony.
25
JUDGE WELSCH:
Do we need to take a shorter
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1
2
lunch break?
MS. GUNNIN:
Judge, I would have concerns about
-- I want to make sure we are able to finish today, and
I think that as I have estimated my case, it has been
pretty much on target, and I do have concerns about the
length of Cross over.
all with any Cross, then I believe we need a shorter
break because I don't want to go into tomorrow if we can
avoid that.
10
If we're not going to start at
JUDGE WELSCH:
That's fine, Your Honor, a
11
shorter lunch break.
We're going to take a lunch break.
12
It's just the question of time frame.
13
JUDGE WELSCH:
You're assuring me --
14
MR. BLACK:
I am not assuring you that if we
15
take a lunch break or not that we're going to finish
16
today versus --
17
JUDGE WELSCH:
You're not assuring me that?
18
MR. BLACK:
Well, let me say this carefully.
19
I'm not assuring you that if we don't take the lunch
20
break -- if we take it now that that is necessarily
21
going to make it finish today as opposed to if we take
22
the lunch break later.
23
degree of probability or certainty, that it's going to
24
increase those odds, and I'm still assuming and
25
intending for us to be finished today.
However, I will say with a high
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I just want to
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1
2
3
be efficient.
JUDGE WELSCH:
How much lunch break are you
suggesting?
MR. BLACK:
JUDGE WELSCH:
I'll leave that up to Ms. Gunnin.

No, no, you're the one that will
dictate.
to dictage how much time we're going to need.
8
9
10
It's out of Ms. Gunnin's hands.
MR. BLACK:
Certainly.
You're going
45 minutes would be
sufficient.
JUDGE WELSCH:
But I want to keep it at that
11
high probability of finishing today, and by today
12
meaning roughly 4:30 so we have enough time to pack up
13
and leave.
14
15
16
MR. BLACK:
That's certainly my hope and
intent, Your Honor.

THE WITNESS:
So if we get back here at quarter
17
after 12:00 or so, that would give you how many hours?
18
Four hours.
19
MR. BLACK:
20
JUDGE WELSCH:
21
22
23
Four hours.
quarter after 12:00.

MR. BLACK:

---o0o---
24
25
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Afternoon session
12:25 p.m.
JUDGE WELSCH:
oath.
THE WITNESS:
Yes, sir.
JUDGE WELSCH:
Mr. Black?
MR. BLACK:
Preliminarily, Judge, we would
10
renew our motion to strike Mr. Andrews as an expert for
11
all the reasons we stated beforehand.
12
Now, having heard his testimony, there was no
13
testimony that he provided that was based on any
14
expertise in any scientific or technical field that
15
would assist the trier of fact in being able to more
16
easily reach its decision.
17
18
19
20
It was mostly opinion we have heard from the lay

witnesses.
JUDGE WELSCH:
Motion denied.
Let's go
forward.
21
---o0o---
22
CROSS-EXAMINATION
23
BY MR. BLACK:
24
Q.
Mr. Andrews, good afternoon.
25
A.
Hello.
CARLIN ASSOCIATES
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Q.
You mentioned in your testimony both this
morning and yesterday afternoon about the monthly
recaps?
A.
Correct.
Q.
I'm going to show you these monthly recaps.
These are something that you considered in forming your
expert opinion in this case, right?
A.
I believe so.
I'll need to see them.
Q.
You're not sure whether you used these?
10
A.
Correct, I'm not sure.
What I was referring
11
to was the log that described Tilikum swimming around
12
the pool and potentially thrashing his head, and I did
13
read that, right.
14
looking at, I do not know.
15
16
Q.
Fair enough.
A.
18
MS. GUNNIN:
20
So, maybe I should show this
to you.
17
19
Whether it was the same thing you're
Right.
Are these already marked as an
exhibit?
JUDGE WELSCH:
Yes.
Let me ask you, Mr. Black,
21
the only one that we heard yesterday through Ms.
22
Flaherty Clark and the only one that was talked about
23
earlier this morning with Mr. Andrews was that very
24
first one.
25
whole stack of documents involving Tilikum.
I'm asking you, it looks like you have a
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MR. BLACK:
I do.
JUDGE WELSCH:
Are you wanting to introduce all
3
4
of them or just the one page?

MR. BLACK:
No, no, no, all of them.
Mr.
Andrews indicated in his expert report that he reviewed
those documents to prepare his report, so we think we're
allowed to introduce any underlying data that he used.
8
9
JUDGE WELSCH:
Make sure those are the
documents.
10
MR. BLACK:
Absolutely.
This is not a trick.
11
12
13
BY MR. BLACK:
14
Q.
Mr. Andrews, I'm handing you what the Court
15
has marked for identification as Exhibit C-14, and if
16
you would look through these, these are documents that
17
you looked through previously and considered in
18
preparing your expert report in this case, correct?
19
A.
I can't answer that just yet.
20
Q.
And, as you're looking through, I will
21
represent to you that these are documents that were
22
produced by Sea World to the Secretary in this case and
23
also the representation from Sea World's attorney that
24
they had provided to you a copy of the documents
25
produced in this case.
CARLIN ASSOCIATES
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I'm not asking you a question about a
particular one.
in preparation?
4
5
6
A.
And, I can't confirm if I reviewed these
exact documents.
Q.
I'm asking whether you reviewed these
I cannot.
By "these exact documents," you're not
talking about the copy that you have in your hand as
opposed to a copy of the same documents?
A.
No, I understand that subtle difference.
10
Q.
Let's move on, and we'll come back to that as
11
soon as we locate a copy of it.
12
So, you were sure that you had seen the
13
aggression incident, what was described as the
14
aggression incident on Page 130 of that document in
15
front of you, right?
16
A.
Yes.
17
Q.
And, yesterday, you testified that, in fact,
18
you relied on the monthly recaps.
19
monthly recaps?
20
A.
You reviewed the
I said that that might have been a mistake;
21
that it was a monthly recap.
I certainly did review
22
these words right here.
23
recap or another document, I don't know.
24
review this exact event, right, as you have it here on
25
Page 130.
Whether that was on a monthly
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But, I did
1834
1
2
Q.
So, in fact, you had these documents
available for your review when you prepared your report?
A.
I believe so.
MR. BLACK:
Your Honor, at this time, we would
offer these documents, which were provided for Mr.
Andrews' review in preparing his report.
MS. GUNNIN:
Judge, I would just state for the
record, I don't think Mr. Andrews would be the
appropriate witness to authenticate those, since his
10
testimony has been he doesn't recall having reviewed
11
those.
12
These are documents that had Mr. Black wanted to
13
enter them, he certainly had an opportunity through Ms.
14
Flaherty Clark when he was questioning her on one of
15
those documents specifically to enter them as evidence
16
in this case, and the decision was made by the
17
Secretary's Counsel at that time not to enter them into
18
evidence.
19
enter them into evidence, since there's no testimony
20
forming any foundational basis that these are records
21
that he had reviewed.
So, we would object to having Mr. Andrews
22
JUDGE WELSCH:
Mr. Black?
23
MR. BLACK:
Your Honor, there was a discovery
24
response provided in this case by Sea World that they
25
provided all of the produced documents to Mr. Andrews
CARLIN ASSOCIATES
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1
2
and that would include this.

So, the fact that he has this document available
for his review, the fact that he can say that he has
seen the first page and --
JUDGE WELSCH:
Is this document what is in C-14
listed in terms of what he has actually reviewed as
opposed to something that might have been provided to
him, but he didn't use in terms of his reviewing them
for his opinions?
10
MR. BLACK:
It is, Your Honor.
It's listed
11
in his report as a basis for his opinions about
12
Tilikum's nature and whether Tilikum was aggressive or
13
not aggressive.
14
MS. GUNNIN:
Judge, I don't see on the report
15
where he's listed a monthly recap as something he had
16
reviewed.
17
Mr. Black deposed Mr. Andrews for about seven hours, and
18
he never asked him about monthly recaps, even though he
19
did have the report, he never asked him any questions
20
about those documents.
21
MR. BLACK:
And, in fact, Your Honor, I would offer that
Your Honor, we have heard
22
testimony on Direct from Mr. Andrews going into detail
23
to explain why the aggression incident listed for
24
February 25th was not aggression.
25
JUDGE WELSCH:
I don't think I have any problem
CARLIN ASSOCIATES
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with the very first page which is the one you're asking
him about because that's what you asked Ms. Flaherty
Clark about.
the incident and maybe he didn't see it in this exact
format, but, apparently, he had seen that write up, at
least that portion of it in some format, but you're
talking about not just the first page, you're talking
about a number of other pages.
And, certainly, Mr. Andrews talked about
MS. GUNNIN:
Judge, if I may, we would just
10
like an objection noted to the entry of it, but to speed
11
things along so that we're not here all day, it's
12
entered and that would be fine if we could just have an
13
objection noted for the record.
14
15
16
17
18
MR. BLACK:
So, they're withdrawing their
objection because I did just find where it says -JUDGE WELSCH:
Let her state it the way she
wants to state the objection.

MS. GUNNIN:
We are not withdrawing the
19
objection, but in order to allow this proceeding to
20
continue at a decent pace, we will allow the exhibit to
21
be entered in if we could just have an objection noted
22
in the record.
23
JUDGE WELSCH:
C-14 is admitted.
Certainly, if
24
Mr. Andrews is unable to identify anything other than
25
that first section, I don't know what weight I'm going
CARLIN ASSOCIATES
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to give the exhibit itself.
MR. BLACK:
MR. BLACK:
I understand.
If we could have marked for
identification Mr. Andrews' report as C-15.
JUDGE WELSCH:
Is it already in one of these?
10
MS. GUNNIN:
Do you have an extra copy?
11
MR. BLACK:
It's up there.
12
tabs in Respondent's exhibits.
13
14
It's one of the
MS. GUNNIN:
Actually, it's not.
We don't have
it listed.
15
MR. BLACK:
I have a copy for Your Honor.
16
JUDGE WELSCH:
Let's move on.
17
Mr. Andrews' shoulder if I need to.
18
BY MR. BLACK:
19
Q.
20
21
22
I'll look over
Mr. Andrews, if you will turn to Page 8 of
that?
JUDGE WELSCH:
Are you going to identify it in
the record?
23
MR. BLACK:
24
BY MR. BLACK:
25
Q.
Oh, I'm sorry.
What's been marked for identification as
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C-15, and if you would turn to Page 8 of that document,
Mr. Andrews, and if you would read the sentence that
starts in the first full paragraph there.
"monthly updates."
MS. GUNNIN:
It says
having him read from the report.
witness whether or not he had --
He has not asked the
MR. BLACK:
That's a good point.
MS. GUNNIN:
-- or anything based on this
10
report.
11
The opinions that were expected to be offered by Mr.
12
Andrews were given in oral testimony, and we would
13
object to the review of the report, since it was not
14
Respondent's intent to have the report serve as a basis
15
for the testimony; but, rather, it was the intent to
16
have oral testimony.
17
Your Honor, to streamline the case so that we could
18
actually be done today.
19
The report actually was not put into evidence.
JUDGE WELSCH:
And, that was done in an effort,
The objection is overruled at
20
this juncture, but can you back up a little bit so the
21
record is clear as to what Mr. Andrews is --
22
MR. BLACK:
23
BY MR. BLACK:
24
Q.
25
I'll back up.
Mr. Andrews, what's in front of you marked
for identification as C-15, that's a copy of the expert
CARLIN ASSOCIATES
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1839
report that you produced in this case?
A.
Yes.
MR. BLACK:
Your Honor, we would move to admit
C-15.
credibility of his opinions.
6
7
8
9
We're going to ask questions going to the
MS. GUNNIN:
Objection noted for the record,
Your Honor.
JUDGE WELSCH:
C-15
is admitted.
10
11
12
BY MR. BLACK:
13
Q.
And, now, if you will turn to C-15, Mr.
14
Andrews, and read the sentence beginning on Page 8,
15
beginning with "monthly updates."
16
sentence, if you would, out loud.
17
A.
Read that whole
"Monthly updates for each animal documents
18
any current changes in the animal's behavior,
19
medical conditions, social behavior, or general
20
health."
21
Q.
So, does that refresh your recollection that
22
you actually looked at monthly updates as part of your
23
report?
24
25
A.
It does, obviously; but, again, I'm not sure
they were these documents.
Right.
CARLIN ASSOCIATES
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Q.
Andrews?
A.
What other documents might they be, Mr.
In the materials that were provided me, there
were annual updates that were broken down into monthly
form.
those monthly breakdowns of an annual report or a
monthly report.
8
9
10
I'm not sure if that is what I'm referring to,
Q.
So, it's your testimony sitting here today
that you don't know whether you reviewed this document

or another similar document; is that your testimony?
11
A.
Correct.
12
Q.
Now, part of your work in this case was to --
13
part of the work that you did was to provide an opinion
14
regarding the cause of Ms. Brancheau's death?
15
A.
Yes.
16
Q.
And, in fact, your report does provide an
17
opinion on that?
18
A.
It does.
19
Q.
Roughly a one-third to maybe half of the
20
report deals with the cause of Ms. Brancheau's death,
21
right?
22
A.
I would have to review it to confirm that.
23
MS. GUNNIN:
Judge, we would object to the
24
solicitation of Mr. Andrews' opinion about the cause of
25
death of Ms. Brancheau.
We have not offered an opinion
CARLIN ASSOCIATES
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in Direct about the cause of death.
offered an opinion on that.
position that allowing the Secretary's Counsel to go
past the scope of the opinion offered would be
impermissible.
JUDGE WELSCH:
intending to go?
MR. BLACK:
So, he has not
So, we would take the
Mr. Black, is that where you're
Your Honor, we're going to show
his opinion as it reflects upon his credibility in
10
giving an opinion as part of the work that he's done.
11
This is half of his report.
12
JUDGE WELSCH:
So, you're not asking me to
13
accept his opinion as an expert.
14
examination in terms of his credibility regarding the
15
other opinions he provided?
16
MR. BLACK:
You're using your
Yes, correct.
This opinion that
17
he gives reflects on his qualifications and credibility
18
as an expert witness as to all the opinions he's given
19
in this case.
20
JUDGE WELSCH:
I'm not accepting the opinion in
21
terms of his opinion of the cause of death of Ms.
22
Brancheau as an expert opinion.
23
24
25
MR. BLACK:
Well, in fact, we will say this
opinion is wrong, so that's right.

JUDGE WELSCH:
Overruled.
CARLIN ASSOCIATES
I will allow it but
(216) 226-8157
1842
only for that very, very limited purpose in terms of
credibility and how it affects his other opinions that
have been provided in this proceeding.
Go ahead.
MR. BLACK:
BY MR. BLACK:
Q.
Now, Mr. Andrews, your opinion that you did
give on Direct was that Tilikum was not an aggressive
whale?
10
A.
That's correct.
11
Q.
And, his lack of aggressiveness in your view
12
provided a level -- his lack of displayed aggressiveness
13
that you concluded he failed to display aggressiveness
14
that that increased the safety for Sea World trainers in
15
working around Tilikum?
16
17
A.
That was a factor in how they behaved around
him, yes.
18
Q.
And, your conclusion in your report was that
19
Tilikum was not acting aggressively towards Ms.
20
Brancheau at the time of the incident which led to her
21
death?
22
A.
Yes.
23
Q.
If I could have you turn to Page 4 of Exhibit
A.
(Witness Complies).
24
25
C-15.
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MR. BLACK:
And, Your Honor, it might be
helpful for you to have a copy of this report, I
suspect.
MS. GUNNIN:
I hand the Judge a copy.
MR. BLACK:
BY MR. BLACK:
Q.
And, now, I'm looking at Page 4 of your
report, and in the first paragraph you said:
"Based on my experience, my continued
10
conversations with Sea World of Florida staff, I
11
knew that Tilikum was always a very even tempered
12
and well behaved whale; that he was a very
13
tolerant animal and has few, if any, aggressive
14
tendencies."
15
Right?
16
A.
Yes.
17
Q.
And, further down in that paragraph you say:
18
"A review of every Sea World killer incident
19
report reveals no aggressive incidents with
20
Tilikum."
21
Do you see that?
22
A.
Yes.
23
Q.
And you write:
24
25
"To summarize, my conclusion is that Tilikum

is not an aggressive killer whale, and this is
CARLIN ASSOCIATES
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based on a review of medical records, behavior
profiles, Sea World incident reports, personal
interviews and my own knowledge of the animal."
A.
Yes, I wrote that.
Q.
And, would you consider the number of times
that a whale splits from its trainer to be a showing of
tolerance by that animal?
A.
To be a showing of tolerance?
Q.
Yes.
10
A.
It could be, yes.
11
Q.
It could also be that if a whale splits from
12
a trainer, that the whale is not tolerant, right?
13
A.
It depends on the scenario.
14
Q.
Now, you did not do a study of how many times
15
Tilikum has split from his trainer, did you?
16
A.
I did not.
17
Q.
You don't know whether that's a frequent
18
occurrence or not?
19
A.
I don't know the level of frequency.
20
Q.
And, so in concluding that he's a very even
21
tempered, well behaved whale, you do that without
22
knowing how often he has split from the trainer?
23
A.
That's correct.
24
Q.
So, you make that statement without having
25
objective data showing whether he has split more often
CARLIN ASSOCIATES
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1845
or less often than other whales?
A.
That one particular type of behavior, no.
Q.
Well, that's one type of behavior that could
indicate whether a whale is even tempered or well
behaved, right?
A.
Not necessarily.
Q.
But it could?
A.
It could be construed many different ways,
right, and the information you got from each time an
10
animal splits from you could be at conflict with one
11
another.
12
Q.
Could be?
13
A.
Yes.
So, sometimes the animal splitting from
14
you would be a good thing.
15
that.
16
of what the whale is doing, and you don't always know
17
the intent.
18
pretty good idea sometimes.
19
You would want him to do
Other times, maybe not.
Q.
It depends on the intent
You can't get in their head, but you have a
Well, you used the term that he was a well
20
behaved whale, and so knowing how many times he split
21
might be an indicator of whether he truly is well
22
behaved, right?
23
A.
It might be.
24
Q.
And, you did not bother to study that aspect
25
of Tilikum in giving that opinion?
CARLIN ASSOCIATES
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A.
Of splitting, no, I did not.
Q.
You're kind of laughing.
A.
Right.
Q.
Why do you find that so humorous?
A.
I find that to be, pardon me, but an
uneducated assessment of behavior, right, and a very
limiting sort of behavioral assessment as well.
just one thing, right?
9
10
11
Q.
It's
What are the other things that go into
determining whether the whale is a well behaved whale?

A.
There are many, many different aspects of
12
killer whale behavior that you would want to assess to
13
come up with a determination that the animal is well
14
behaved relative to other animals, and splitting might
15
be included in your assessment, right?
16
your assessment to that one particular type of behavior,
17
I think would be a very limited assessment.
18
Q.
But to limit
Well, your conclusion that he's a well
19
behaved whale was based on your Sea World experience,
20
you said, right?
21
A.
Yes.
22
Q.
And your continued conversations with the Sea
23
World of Florida staff?
24
A.
Yes.
25
Q.
So, I'm trying to understand if there was any
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1847
more data that you had in making that assessment, that
conclusion that he was a well behaved whale other than
talking to the staff and relying on what you knew prior
to leaving the park in 2001?
5
6
A.
Well, incident reports from 1992 through
February of 2010 or into February of 2010 is data.
Q.
So, you didn't list that, of course, in your
sentence there where you're talking about how well
behaved Tilikum is.
You just said, "Based on my Sea
10
World experience and my continued conversations with
11
staff"?
12
A.
I'm listing it now.
13
Q.
You're listing it now.
14
your testimony from what you had written in your report?
15
16
So, you're changing
A.
Did I not write that somewhere else in my
report that I assessed incident reports?
17
Q.
You did write that somewhere else.
You did
18
not write that in your statement about Tilikum being a
19
even tempered and well behaved whale.
20
21
Now, you have seen Tilikum's behavior

profile, right, animal profile?
22
A.
Right.
23
Q.
And, I believe that's Exhibit C-7, I hand to
24
you.
I'm handing you Exhibit C-7, Mr. Andrews.
25
you would turn to the page marked Sea World 942, it's
CARLIN ASSOCIATES
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Now, if
1848
the second page.
Excuse me, it's not the second page of
this document, but it's Page 942.
A.
Yes.
Q.
And, you see this is from the Tilikum
behavior profile?
A.
Yes.
Q.
And, under "aggressive tendencies," it lists
some aggressive tendencies for Tilikum, right?
A.
Yes.
10
Q.
Would you read those out loud to the Court?
11
A.
"Has negative history with trainers in water.
12
Please be advised that this whale was involved in
13
the accidental drowning of a trainer at Sea Land
14
of the Pacific in 1991 and involved in an
15
incident with a guest in its pool in 1999 at
16
SWF."
17
Q.
Now, if you will read further down on the
18
page under "Summary," the last full paragraph on the
19
page, if you will read the sentence beginning, "During
20
times of frustration"?
21
A.
"During times of frustration, due to social
22
stress in the environment, Tilikum has exhibited
23
aggressive behavior by mouthing the stage,
24
vocalizations, tightening body posture, banging
25
gates and deep, fast swim and sometimes lunging
CARLIN ASSOCIATES
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toward control trainer."
Q.
And read the next sentence if you would.
A.
"It is important to remember his previous
4
5
6
7
history and potential."

Q.
What is his previous history and potential?
What do you understand that to be?

A.
I am assuming it's referring the incident at
Sea Land of the Pacific in 1991 and in his pool at Sea
World of Florida in 1999.
10
Q.
So this behavior profile does, in fact, list
11
some tendencies for Tilikum that are aggressive
12
tendencies?
13
A.
That's how it is stated, yes.
14
Q.
15
That's the question.
Right?
16
A.
Repeat the question.
17
Q.
The document that you just looked at, C-7,
18
page Sea World 942, it does, indeed, list some
19
aggressive tendencies by Tilikum.
20
right?
21
22
23
24
25
A.
It uses those words,
I see some statements under a heading called
aggressive tendencies.
Q.
You also just read some sentences talking
about aggressive tendencies in social situations?

A.
Right, and that sentence, in my
CARLIN ASSOCIATES
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1850
interpretation is referring to frustrated or potentially
aggressive behavior.
was the proper choice of words here that he is directing
at his environment as opposed to people, with the
exception of lunging towards control trainer.
the only thing in that entire document that I would
consider being listed as potentially aggressive.
8
9
Q.
I'm not sure aggressive behavior
That's
So, in fact, according to the behavior
profile, he has lunged at the control trainer, right?
10
A.
Yes.
11
Q.
So, you would agree with my statement that he
12
has exhibited some aggressive tendencies, according to
13
Sea World's own document?
14
A.
According to Sea World's own document, the
15
only thing I see in here that is appropriate and
16
relevant to our discussion is the lunging towards
17
control trainers.
18
Q.
So, your answer to my question is, "yes"?
19
A.
With a clarification that we would need to
20
21
know more about the lunging behavior in itself.

Q.
Right?
Wouldn't it have been nice if Sea World had
22
explained more about the lunging behavior in that animal
23
profile there?
24
A.
25
A document like this is one to encourage
discussion, and those details would come in discussion.
CARLIN ASSOCIATES
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1851
Q.
Well, you don't know.
You're just
speculating that those details would come out in
discussions, right?
would be?
You don't know what the discussions
A.
I was not there for discussions, but --
Q.
So, now, you're speculating?
A.
-- knowing how it works.
Q.
Well, Mr. Andrews, if you're going to tell me
Right?
how it works, I'm talking about what is the document,
10
and you're not wanting to accept that that's what the
11
document says, are you?
12
13
14
15
16
17
18
A.
I'm just saying that we would need to know
more about what lunging refers to.

Q.
It's listed as an aggressive tendency,
aggressive behavior, right?

A.
And, I'm not agreeing that it is definitely
an aggressive behavior.
Q.
So, who did you talk to that explained to you
19
what that reference to lunging at a control trainer was?
20
Did somebody tell you what that was specifically
21
referring to?
22
A.
Yes, but not perhaps in a general sense that
23
is listed on this document, but in a specific sense that
24
was listed in the other document that we referred to
25
earlier.
CARLIN ASSOCIATES
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1852
Q.
Which other document?
A.
The document that we were having trouble with
earlier talking about Tilikum's thrashing.
4
5
Q.
So, you talked to somebody about whether that
thrashing would have been aggressive behavior or not?
A.
Correct.
Q.
And, that was a conversation that you had
with somebody yesterday?
A.
No.
10
Q.
That was a conversation that you had, when?
11
A.
Several months ago with Chuck Tompkins.
12
Q.
Did Chuck tell you what that incident was?
13
A.
He gave me his assessment of that behavior,
Q.
Did he tell you that he had witnessed that
14
15
16
yes.
incident?
17
A.
He did not.
18
Q.
So, you don't know what the basis for his
19
assessment of that document was, the document being
20
C-14, the very first page of that document?
21
A.
One more time?
22
Q.
He didn't tell you the basis for his
23
24
25
That he did not?
assessment of that behavior as not being aggressive?

A.
He did not to the best of my recollection
from a conversation a long time ago specifically say,
CARLIN ASSOCIATES
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1853
"Jeff, the basis for my assessment of that behavior is
this."
3
4
He did not use those words.
Q.
You guys just talked about, "Well, here's
what it appears to be, based on what's written here"?
A.
Well, we spoke about it at length.
Q.
And talked about what it might mean?
A.
Right, but he did not say, "Jeff, the basis
8
9
10
of my opinion about this is because of this."

Q.
He didn't tell you what that incident
actually was because he hadn't observed it, right?
11
A.
He didn't say that either, right.
12
Q.
Did he tell you, "I've observed it, and this
13
is what happened"?
14
A.
He didn't say that either.
15
Q.
So, how did he explain to you that he had
16
17
personal knowledge of what the incident was?

A.
Familiarity with the incident due to his
18
position in the park and his leadership position over
19
the people that were there for that incident.
20
Q.
So, you found that it was sufficient just
21
because he's a leader in the park, that if he tells you
22
that this doesn't look like aggression or this is
23
aggression that we don't need to worry about, that's
24
enough for you to give an expert opinion in this case
25
about Tilikum's aggressiveness?
CARLIN ASSOCIATES
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1854
A.
There were two questions there.
But, what
I'm saying is that based on his position in the park and
his knowledge of the whale and the whale program there
and the people that work there, that he can very
adequately form a reliable opinion on that incident due
to his position.
That's what I'm saying.
Q.
But, it's not his opinion that we're seeking
A.
But, that's how you started the question.
10
Q.
So, you relied on the opinion of somebody
11
here.
else.
12
13
That's what you're saying, right?

A.
So, that next question, yes, I did rely on
his opinion.
14
Q.
And, you know Mr. Tompkins hasn't been
15
qualified to provide expert testimony in this case,
16
right?
17
A.
Yes.
18
Q.
Changing gears here if I might, I'll just
19
move these things, get this out of your way.
20
looked at the expert report?
Have you
21
A.
(No audible response)
22
Q.
Now, on Page 4 of the expert report, you say
23
that:
24
"The next element of my inquiry was to
25
determine if Sea World properly protected its
CARLIN ASSOCIATES
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1855
staff while they were interacting with Tilikum."
Do you see that?
A.
I do.
Q.
And then you indicate:
"To accomplish this,
I reviewed written standard operating procedures,
SOP's," right?
A.
Yes.
Q.
And some other things as well?
A.
Yes.
10
Q.
And, those other things included animal
11
training department SOP's?
12
A.
Okay.
13
Q.
Marine Mammal Department Safety Guidelines?
14
A.
Yes.
15
Q.
Shamu Stadium/Shamu Close-Up/Dine With Shamu
16
manual?
17
A.
Yes.
18
Q.
And, you said in those documents you
19
discovered approximately 47 pages of specific
20
regulations?
21
A.
Yes.
22
Q.
And, now, on direct testimony just now, you
23
said there were approximately 100 pages dealing with
24
Tilikum and Tilikum safety rules.
25
A.
Do you recall that?
I apologize, that was a mistake.
CARLIN ASSOCIATES
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1856
1
2
Q.
Mistake about by a factor of more than
100 percent, right?
A.
Okay.
Q.
Now, do you remember what these documents are
that you referred to in your report here?
A.
The manuals?
Q.
Yes.
A.
Yes.
Q.
And, those manuals that you're referring to
10
are some manuals at Sea World of Florida?
11
A.
Yes.
12
Q.
They're also manuals from Sea World of San
13
Diego and Sea World of San Antonio, right?
14
A.
Yes.
15
Q.
So, how many pages of those 47 pages came out
16
of the manuals from Sea World of Florida where Tilikum,
17
as I understand it, was housed for his entire Sea World
18
career?
19
A.
Well, I believe all 47 pages came out of Sea
20
World of Florida manuals, simply because I was looking
21
specifically for Tilikum-related documents which would,
22
I assume, only have been in the Sea World of Florida
23
manuals.
24
Q.
You assume?
25
A.
I assume.
CARLIN ASSOCIATES
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1857
Q.
Now, I'm going to hand you because I didn't
count anywhere near the same number that you counted, so
do you remember we have introduced in this case the
SOP's from Florida, right?
A.
Yes.
Q.
And, we introduced the training department
manual from Florida, and we introduced the Shamu Stadium
manual for Florida?
A.
Okay.
10
Q.
What other locations do you think those
11
47 pages came from?
12
A.
I can't recall.
13
that I went through, right?
14
here?
15
16
Q.
It was a 2,600-page document

So, what else did I list
You listed Marine Mammal Department Safety
Guidelines?
17
A.
Yes.
Okay, do you have them?
18
Q.
I do have a copy and it's listed as an
19
exhibit, but I don't have a copy of any that exist for
20
21
document for Sea World of either San Antonio or San
22
Diego or both.
23
A.
Okay.
24
Q.
And, in fact, I will represent to the Court
25
I only have a copy of that
that there was no such document with what title provided
CARLIN ASSOCIATES
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1858
to the Department of Labor in this case for Sea World of
Florida.
3
4
You also used Shamu Stadium, Shamu Up-Close,

Dine With Shamu manual as a source for your 47 pages?
A.
Okay.
Q.
And you understand that that's either a San
Diego document or a San Antonio document and not a
Florida document, right?
A.
Okay.
10
Q.
So, now, I'm handing you what has been
11
introduced previously, R-1, R-2 and C-1, and I want you
12
to tell me where you count 47 pages of rules related to
13
Tilikum in those three documents from Florida?
14
A.
This could take awhile.
15
Q.
It could take awhile?
16
A.
Right.
17
Q.
I suspect that the results of your search are
18
going to be that it's far fewer than 47 page but maybe
19
it's 20 pages, maybe it's 25 pages?
20
A.
I don't know --
21
Q.
Would that surprise you if that were the
22
result?
23
A.
That it was less than 47?
24
Q.
That it was significantly less than 47?
25
A.
It would surprise me, yes.
CARLIN ASSOCIATES
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1859
Q.
So perhaps this exercise is worthwhile, but
before we do that -- yes, perhaps this exercise is
worthwhile because when you did that, it was very
important to you that the number of pages and the number
of rules be listed as the basis for your opinion, right?
A.
I thought it was substantial.
Q.
That it was substantial.
So, that they had
47 pages, in fact, was a basis for your opinion, right?
A.
Was one of them, yes.
10
Q.
And having 165 rules, that was important,
11
right?
12
A.
Yes, because it was substantial.
13
Q.
I think that all of those documents have
14
tables of contents.
15
A.
Okay.
16
Q.
So I think that this is an exercise that's
17
useful, and I understand your realizing it might take
18
some time but, of course, you're the expert who did this
19
report --
20
A.
That's right.
21
Q.
-- or proffered this opinion and counted
22
these rules and, of course, one of the things that's
23
important, you would agree, for experts is for other
24
people to be able a replicate what they did, right.
25
A.
Um-hum.
CARLIN ASSOCIATES
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1860
1
2
Q.
So, it's important for you to do a careful
count of things, right?
A.
Yes.
Q.
So, yes, I do think it would be very useful
and I'll hand you -- so that you don't have to mark on
those pages, I'll hand you a pen and sticky notes for
you to go through there and tell me how you came up with
47 pages?
JUDGE WELSCH:
Mr. Black, would it be
10
appropriate to go ahead and take a five-minute break so
11
he can do that?
12
MR. BLACK:
Yes.
13
JUDGE WELSCH:
Why don't we stand adjourned for
14
five minutes while Mr. Andrews performs his task.
15
be back at ten minutes after.
16
So,
We're adjourned.
Maybe I jumped the gun a little bit.
Let me ask
17
you, Mr. Andrews, do you understand what Mr. Black has
18
asked you to do?
19
THE WITNESS:
I do.
20
JUDGE WELSCH:
Can you perform the task that Mr.
21
Black has asked you to perform?
22
THE WITNESS:
I can.
23
JUDGE WELSCH:
So, do you have any concerns
24
25
about doing what Mr. Black has asked you to do?

THE WITNESS:
I have two concerns:
CARLIN ASSOCIATES
(216) 226-8157
One, the
1861
amount of time it would take, but that's less
concerning, that the document that I reviewed in order
to come up with those numbers is not this.
probably contained in that, but what I went through was
a PDF provided to me, and it was a 2,600-page PDF, give
or take, and if I went through that document again and
if I reviewed my notes, I'm sure I could come up with a
repeatable means of producing 47 pages and 165 different
rules.
10
These were
I'm sure I could do that.
But, I'm not sure if I can do this because I don't
11
know if this is directly equatable to what I went
12
through.
13
MS. GUNNIN:
Your Honor, that would be what
14
Mr. Andrews is referencing as the discovery responses
15
that were provided to the Secretary of Labor.
16
this 2,600 some odd page document, and I think it is an
17
unfair thing for Mr. Black to request that he look just
18
through one document when he looked at all of the
19
information that was provided.
That is
20
So, unless he is going to be permitted the
21
opportunity to look through that entire group of
22
documents that were provided in discovery --
23
JUDGE WELSCH:
Is that here in the courtroom?
24
MS. GUNNIN:
Oh, we have it electronically.
25
We do have that as an electronic file.
CARLIN ASSOCIATES
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1
2
JUDGE WELSCH:
Do you still have your notes?
In
your notes, do your notes identify?
THE WITNESS:
Yes.
JUDGE WELSCH:
When you made your count, would
your notes assist you in identifying the pages?
THE WITNESS:
It would.
JUDGE WELSCH:
Mr. Black?
BY MR. BLACK:
Q.
Well, a couple of things.
One, do you have
10
notes that would indicate by page number what pages
11
added up to your 47 pages?
12
A.
I believe so, yes.
I believe my process was
13
finding a reference of some sort of rule or reference
14
that included a Tilikum protocol, writing down what page
15
that was on, how many rules were on that page and then
16
moving on.
17
18
Q.
And, do you have those notes here in the
courtroom?
19
A.
I believe so.
20
MR. BLACK:
Before you look at your notes, we
21
would just note for the record that we did ask to see
22
any notes that the expert had made in preparing his
23
report so we could understand what it is he did so we
24
might not have a problem like this.
25
for the record.
CARLIN ASSOCIATES
I would note that
(216) 226-8157
1863
Secondly, I would also note for the record that
his report does state that he did this count of 47 pages
from looking at two documents which the Secretary has
listed in its exhibits which are the only documents that
exist.
that perhaps it's three documents that only exist from
Sea World of San Diego and Sea World of San Antonio.
Tab C-48, Marine Mammal Safety Guidelines, and a manual
listed here on Page 4 of Exhibit C-15 as a San Diego
And, I said two documents.
Actually, it appears
10
document, and then there's a similar document with the
11
same title at C-51, exactly the same title.
12
There's no such document produced in this case for
13
14
surprised if there were, since those title documents
15
were the title of SOP's used at the parks.
16
what we strongly suggest happened is that Mr. Andrews
17
looked at these documents from other parks and included
18
that in concluding that other parks having Tilikum
19
guidelines somehow provided safety to Sea World of
20
Florida, the park that actually had Tilikum.
21
22
23
MS. GUNNIN:
In fact, we would be very
So, in fact,
Judge, I think that would be a
question -MR. BLACK:
I'm just trying to give you the
24
context for why it is that this is upsetting that now
25
we're in this situation where there's a report giving
CARLIN ASSOCIATES
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1864
this, and it's typical when one gives a report to be
able to -- you know, this is what we talked about.
3
4
JUDGE WELSCH:
Okay, but you're only dealing
with this in terms of credibility?
MR. BLACK:
I am.
JUDGE WELSCH:
None of this was part of the
opinions that Sea World has asked Mr. Andrews about in
terms of this case.
MR. BLACK:
They did ask him about whether it
10
was safe in how they interacted with Tilikum.
11
we're not just talking about how Tilikum caused the
12
death, but now we're going broader and he's giving an
13
opinion that Sea World properly protected its staff.
14
JUDGE WELSCH:
Now,
But, Mr. Black I guess the
15
problem I'm having is, one, the report wasn't offered by
16
Ms. Gunnin.
17
understand why he was offered as an expert, but now
18
we're dealing with the fact of whether or not he has
19
identified 47 pages dealing with Tilikum or not, and
20
whether or not that's accurate.
21
It's being offered by the Secretary, and I
Suppose the answer after we go through this whole
22
exercise and he agrees with you it comes down to
23
25 pages.
24
MR. BLACK:
Right.
25
JUDGE WELSCH:
So what?
CARLIN ASSOCIATES
How is that going to
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1865
1
2
help me in making a decision?

MR. BLACK:
I'm just asking -- that he is
being put up as an expert who did not do careful work,
who gives opinions that are not based on a careful
count, that his methodology -- Your Honor.
JUDGE WELSCH:
I guess I don't see the
inferences that you're asking me to draw from that.
report is not being offered by Sea World.
World is offering this report as part of his opinion,
10
then you're challenging the report.
11
offered.
12
provided this morning.
13
The
Now, if Sea
The report wasn't
What was offered were the opinions that were

That was what was offered.
Now, the fact that you can point out a problem in
14
the report in terms of the counting in the report, I
15
don't know if that has an effect on those other opinions
16
or not.
17
because you represented to me you're going to the
18
credibility that's broader than just this report.
I have allowed you to ask some questions
19
MR. BLACK:
Credibility and careful --
20
JUDGE WELSCH:
Credibility just to his opinions.
21
MR. BLACK:
If I might, Your Honor, just
22
briefly, it's not just the credibility, it's also how
23
carefully his work was done in providing an expert
24
opinion, but just one second further, that this, in
25
fact, does go to an opinion that he provided this
CARLIN ASSOCIATES
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1866
morning which is that Sea World had this hundreds --
first he said 100 rules on Direct or 100 pages and rules
on Tilikum on Direct.
think he counted anywhere near that many pages.
it's gone from 100 --
6
7
8
JUDGE WELSCH:
The report says 47, and we don't

I mean,
I do recall that testimony
earlier.
MR. BLACK:
And, also, I mean, if Ms. Gunnin
and Sea World wanted to represent that they provided
10
documents with these names, Marine Mammal Department
11
Safety Guidelines and Shamu Stadium, Shamu Up-Close that
12
were from Sea World of Florida to Mr. Andrews, we need
13
to hear what representation.
14
We never received any such documents, we don't
15
believe any such documents exist.
So what we have here
16
is his accounting from documents that are not even at
17
parks at which Tilikum is housed.
18
JUDGE WELSCH:
You don't know that.
19
MR. BLACK:
That Tilikum wasn't housed at San
20
Antonio?
21
JUDGE WELSCH:
22
47 includes documents --
23
MR. BLACK:
No, no, no.
You're assuming the
I just asked him that.
I asked
24
him what he said, and it says on Page 4, "My review of
25
the SOP's of the Marine Mammal Department Safety
CARLIN ASSOCIATES
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1867
Guidelines," etcetera.
safety protocol.
It says "revealed extensive
I discovered approximately 47 pages."
I know that there are some Tilikum safety
protocols listed in San Antonio and listed perhaps in
Florida as well, but it's beyond belief that those are
the same protocols that were at the Florida park that
are overlapping protocols.
having the protocols in place at the other parks --
JUDGE WELSCH:
Sir, how long would it take you
10
to reconstruct 47 pages?
11
THE WITNESS:
12
I don't understand how
I'm not sure, sir, but I can
tell you my methodology to come up with that.
13
JUDGE WELSCH:
14
some ballpark.
15
ten-minute exercise?
16
No, you need to kind of give me
Are we talking about a five-minute,
THE WITNESS:
No, sir, it would be longer than
17
that.
18
review those documents, and in hindsight sitting here
19
now, I should have spent many, many, many more days as
20
well doing it.
21
I mean, it took me many, many, many days to
JUDGE WELSCH:
You have identified -- you agree
22
that your report, C-15, identified the documents where
23
the 47 pages came from, right?
24
THE WITNESS:
Yes.
25
JUDGE WELSCH:
At least three of those documents
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that are referenced where the 47 pages came from, are
those the three documents that are in front of you now?
THE WITNESS:
I believe that these three
documents were a part of the larger 2,600-page PDF
document that was provided to me.
JUDGE WELSCH:
But, I'm assuming that the
2,600-page PDF document included everything in the case,
and you have only identified these particular documents
in your report for coming up with the 47 pages.
Is that
10
right?
11
document, you just specifically referred to these four
12
or five documents in your report as how you came up with
13
the 47 pages; am I correct?
14
You didn't refer to the whole PDF, every other
THE WITNESS:
No, sir.
I referred to the whole
15
2,600-page PDF, and then I took from it the headings
16
that I found.
17
18
JUDGE WELSCH:
I'm not sure that's not saying
the same thing.
19
THE WITNESS:
Right.
20
JUDGE WELSCH:
But, you will agree these three
21
documents you have in front of you are part of or should
22
have been part of what you reviewed in terms of coming
23
up with 47 pages?
24
25
THE WITNESS:
It appears that these three
documents are contained in the larger document that I
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1
2
reviewed.
JUDGE WELSCH:
So, if I asked you to go through
those three exhibits that have been previously
identified, then that would give you at least a portion
of the information in terms of the Respondent, how many
pages regarding Tilikum, right?
THE WITNESS:
I'm sure if I went through these
three documents, I'm could come up with a number of
pages that contain -- right.
10
JUDGE WELSCH:
So, then, the only other question
11
if I understand Mr. Black correctly, those other one or
12
two documents, the dispute that it's three documents,
13
the dispute that the Secretary is saying is those other
14
three documents do not apply or were not at Sea World of
15
Orlando.
16
17
18
MR. BLACK:
Didn't apply to San Antonio
documents and San Diego documents.

MS. GUNNIN:
Judge, may I offer something?
19
That's actually not a correct representation because the
20
Shamu Stadium manual is a Sea World of Orlando document
21
and he never handed him what manual.
22
that's in evidence.
23
24
25
It is Exhibit R-2
What he has handed him is Exhibit C-2, I believe,

or C-1, so he does not have one piece of information.
MR. BLACK:
Right here, Ms. Gunnin, R-2.
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JUDGE WELSCH:
He said R-2.
MS. GUNNIN:
That is a fourth document.
JUDGE WELSCH:
That's in front of him.
That's
one of the three documents that I'm referring to.
Are there any other documents at Sea World of
Orlando that you think Mr. Andrews used in coming up the
with the 47 pages that are not already in front of him
now?
Do you want to look at what's in front of him?

MS. GUNNIN:
Yes, Your Honor.
10
JUDGE WELSCH:
Those exhibits?
11
MS. GUNNIN:
Yes, Your Honor.
12
JUDGE WELSCH:
And, for the record, Mr. Black,
13
14
15
16
what were the exhibits?

MR. BLACK:
The Exhibits R-1, R-2 and I
believe C-1.
JUDGE WELSCH:
Now, Ms. Gunnin, in terms of
17
what you provided Mr. Andrews in preparation for his
18
testimony, I guess the question is only limited to
19
Tilikum, Tilikum protocols or rules.
20
three documents, are there any other documents or
21
writings of Sea World of Orlando that he needs to be
22
provided a copy of?
23
MS. GUNNIN:
Other than those
I think there's another document
24
that's in evidence, C-5 that's in evidence, Shamu
25
Stadium Orientation Checklist, that does reference
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Tilikum and it's in evidence.
JUDGE WELSCH:
Okay, C-5.
What else?
MS. GUNNIN:
And, with regard to anything else
that Mr. Andrews might have relied upon, I can't really
speak to about that because in the seven hours of
deposition testimony that Mr. Black took of Mr. Andrews,
he never mentioned those.
8
9
Now, had he mentioned it during deposition, we

might have been able to address that problem rather than
10
taking up the Court's time this afternoon.
11
did not.
12
be.
13
deposition.
14
However, he
So, I can't really speak to what that would
And, of course, he did have the report at that
JUDGE WELSCH:
But what I'm going to ask you,
15
Ms. Gunnin is, what were those other two documents?
16
need to get this moving along.
17
Department Safety Guidelines, you believe that's only
18
San Antonio and San Diego.
The Marine Mammal
19
THE WITNESS:
I believe --
20
JUDGE WELSCH:
Yes or no?
21
MR. BLACK:
That one is just San Diego, I
22
23
24
25
We
believe, Your Honor.

JUDGE WELSCH:
Orlando.
I don't really care, other than
That's all I'm asking.
MR. BLACK:
And, two copies of that in the
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1
2
electronic file.
JUDGE WELSCH:
In the list of things there, Mr.
Black, other than the Marine Mammal Department Safety
Guidelines, what else did you not get a copy of for
Orlando?
MR. BLACK:
Diego and San Antonio.
That one, and I misspoke, San
JUDGE WELSCH:
Okay.
MR. BLACK:
And, for the next thing that's
10
listed, Shamu Stadium, Shamu Up-Close, Dine With Shamu,
11
which is a document that is representing San Diego.
12
JUDGE WELSCH:
Let me ask you, Ms. Gunnin, do
13
you have any information that the Marine Mammal
14
Department Safety Guidelines or the Shamu Stadium/Shamu
15
Close-Up/Dine With Shamu manual is a document in Orlando
16
from the Orlando park?
17
MS. GUNNIN:
Judge, I do not have any
18
information that the Marine Mammal Department Safety
19
Guideline or Shamu Close-Up or Dine With Shamu manual
20
are a part of Orlando, but the Shamu Stadium is.
21
JUDGE WELSCH:
So with regard to the Close-Up
22
and the Dine With Shamu, you would agree with Mr. Black
23
that those are documents that are from other parks?
24
MS. GUNNIN:
Yes, Your Honor.
25
JUDGE WELSCH:
Other than Orlando?
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MS. GUNNIN:
Yes, Your Honor.
JUDGE WELSCH:
So, all that being said, just
looking at those exhibits that you have in front of you,
can you give me some estimate of how much time it would
take to identify the pages that you're referring to in
terms of dealing with Tilikum?
THE WITNESS:
Yes, sir.
A cursory thing would
probably be 15 or more minutes doing not unlike what Mr.
Black suggested, that I look for a table of contents,
10
right?
11
every page, right?
12
long time.
13
could word search and search for the word "Tilikum," and
14
then find out whether or not it's really a rule --
15
16
17
For a more exhaustive search, I would look at

And, doing it by hand would take a
Doing it in a computer format where you
JUDGE WELSCH:
But, you have your notes here.
Would your notes help you speed that process up?

THE WITNESS:
You know, I believe I have those
18
notes, but that was probably a draft to the report that
19
I provided.
20
numbers is in there, then that would be great, but I
21
assume that this is going to regardless be a different
22
number just based on methodology for how you assign a
23
page and how you count pages and, of course, they line
24
up differently and I believe would probably go through
25
this whole exercise again for the second section of my
If my note taking to come up with those
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report that refers to killer whale safety protocols, not
limited to just Tilikum, and at the time, of course, I
was writing that report based on Sea World's three parks
and not just Sea World here in Florida.
5
6
JUDGE WELSCH:
Mr. Black, do you think it's that
important for the Secretary's case?
MR. BLACK:
If we could just get a stipulation
that the number would be -- in the materials he reviewed
as to Tilikum because Ms. Gunnin might not like it if it
10
seems like it would speed things along if we got a
11
stipulation that the number is substantially below
12
47 pages, perhaps it's in a range of 20 to 30 rules at
13
most.
14
be able to ask a couple more questions that make it
15
clear.
16
I don't even think it's that.
JUDGE WELSCH:
I mean, we might
Let me see if I can approach it a
17
different way.
The report is already in evidence.
18
Those documents, those exhibits are already in evidence.
19
Certainly, as part of your brief, you can address the
20
issue and you can go through if you think it's important
21
to identify the pages within those exhibits, and then
22
I'm going to be reviewing all of these documents myself,
23
and in my review, I may agree or I may disagree with
24
you, and since you've made it an issue, then Ms. Gunnin
25
in her brief can identify what she thinks is important
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where the 47 pages are.
Can we do it that way?
MR. BLACK:
As long as it's understood that
there's not going to be some representation by Sea
World, the Respondent, that there are some other
documents that somehow ought to be included in Mr.
Andrews count that pertains to Sea World of Florida.
don't think there are.
JUDGE WELSCH:
We
We're not aware of any.

I've asked Ms. Gunnin whether or
10
not there are any other documents involving Orlando and
11
involving Tilikum other than, I think, we're up to four
12
documents, R-1, R-2, C-1 and C-5, that might show some
13
bearing on the number dealing with Tilikum, and in terms
14
of the report C-15 that Mr. Andrews drafted, Ms. Gunnin
15
has already identified with the references that the
16
Marine Mammal Department Safety Guidelines as well as
17
the Shamu Close-Up and Dine With Shamu manuals do not
18
apply to the Orlando park or not originated or not
19
contained at the Orlando park, and I think that's all
20
the documents, and then we can deal with the pages later
21
on.
22
Mr. Black, is that -- or do you want him to go
23
through the exercise?
24
MR. BLACK:
25
If we're willing to limit our
universe to what the Court has received into evidence,
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so we're not going to hear later argument or a footnote
saying there are also all of these additional documents,
then we don't believe that exercise would be necessary
at this time.
JUDGE WELSCH:
Ms. Gunnin, other than those four
exhibits that I've talked about, are there any other
documents at Orlando that you're aware of that have
either been admitted or not admitted that haven't been
identified that might contain this information about
10
11
Tilikum?
MS. GUNNIN:
Judge, other than the documents
12
that have been admitted into evidence in this case, I'm
13
unaware of any other documents that would contain any
14
information about Tilikum.
15
MR. BLACK:
Thank you.
16
JUDGE WELSCH:
Thank you.
17
BY MR. BLACK:
18
Q.
Let's go on.
Mr. Andrews, if you would turn -- let me take
19
those things out of your way -- and you have your report
20
still in front of you, Exhibit C-15?
21
A.
I do.
22
Q.
Now, if you would turn to I believe it's Page
23
Number 5?
24
A.
(Witness Complies).
25
Q.
And, on that page you have given an opinion,
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you have talked about:
"In the zoo industry, we often divide the
level of physical contact staff has with its
animals into two categories; free contact and
protected contact."
Do you see that?
A.
No.
Direct me to it if you don't mind.
Q.
Certainly.
about midway.
It's in this first paragraph
It starts, "In the zoo industry"?
10
A.
I see it, yes.
11
Q.
And, you say:
12
"With killer whales free contact refers to
13
having flexibility to swim in their environment"?
14
A.
Yes.
15
Q.
And, you work with elephants?
16
A.
I do.
17
Q.
You spend about a third of your time, I think
18
you testified, working with elephants, right?
19
A.
Correct.
20
Q.
And, you are a member of the AZA's elephant
21
taxon advisory group?
22
A.
23
the TAG.
24
Q.
25
Yes, I'm an institutional representative to
And, you are aware that the AZA in August of
this year instituted rules that require for elephants
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that there will no longer be interactions with the
elephants in an unrestricted contact environment with
certain exceptions?
MS. GUNNIN:
relevance of the question.
Mr. Andrews did not proffer
any opinions about elephants and whether or not they
should be free contact or protected contact.
that's not the case, and that's not the evidence in this
case.
In fact,
There is no issue about elephants and whether
10
they are protected contact or free contact.
So, I don't
11
know what the relevancy would be of looking at an AZA
12
guideline for elephants.
13
JUDGE WELSCH:
Mr. Black?
14
MR. BLACK:
Yes, and if I'm going to have to
15
explain the relevance of each thing, this will stretch
16
out, but the relevancy is that Mr. Andrews said in his
17
qualifications that his work with elephants was no
18
different, very similar to --
19
JUDGE WELSCH:
20
BY MR. BLACK:
21
Q.
I agree.
Overruled.
Go ahead.
So, the AZA has said as soon as possible, no
22
later than September of 2014, elephants' care providers
23
at the AZA facilities with elephants shall not share the
24
same unrestricted space with elephants, except in
25
certain well defined circumstances that they outlined,
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right?
A.
Yes.
Q.
So, in other words, the AZA has decided that
they want not to allow unrestricted contact with
elephants at its member institutions?
A.
Except in well defined cases.
Q.
And, the well defined cases have to do with
animal husbandry, have to do with transports of animals,
medical procedures, right?
10
A.
Birthing, elephant birthing, rearing.
11
Q.
So, except for those exceptions, no more
12
unrestricted space contact with an elephant, right?
13
A.
That's what they're listing there, yes.
14
Q.
And, that's a requirement of the AZA?
15
A.
Correct.
16
Q.
And, so the way the elephants are to be
17
worked is different than the way that killer whales are
18
worked at Sea World, right?
19
A.
Yes, and many other species as well.
20
Q.
And, they reached that conclusion because
21
they thought that unrestricted space unprotected contact
22
was too great an occupational risk or hazard for
23
elephant care, correct?
24
A.
Correct.
25
Q.
Now, the AZA has not opined one way or
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another, has not issued any rules regarding protected or
protected contact with killer whales, right?
A.
They have not.
Q.
They don't have any standards that are
specific as to killer whales, do they?
A.
Not that I know of.
Q.
You're not certain because you're not a
8
9
member of the marine mammal TAG of the AZA, right?

A.
That's correct, and regardless, I still am
10
unaware -- I have inquired and I'm unaware of any
11
regulations set forth by the marine mammal TAG or
12
standard for that matter.
13
Q.
Turning back to your report, on Page 5 of
14
your report, the first full paragraph, the second
15
paragraph on the page:
16
17
"My analysis of the tragic incident of

February 24th has led me to several conclusions."
18
Do you see that?
19
A.
I do.
20
Q.
And you referenced something about:
21
"Every Sea World employee I spoke with was
22
profoundly affected by the loss of their
23
colleague, Ms. Brancheau"?
24
A.
Yes.
25
Q.
And, I have little doubt that that's true.
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What is the relevance of that to your report?
A.
Just that the people at Sea World take their
job very seriously and they work in a very closer-knit
environment emotionally and socially with their
coworkers than I think most people would realize.
6
7
Q.
And, then, in that same paragraph, eight
lines down, you say:
"While and outsider may doubt the strength of
the bond among the trainers and their bond with
10
the animals, based on my personal experience as a
11
trainer and my interviews with Sea World Orlando
12
trainers, the strength of the emotional
13
connection is very clearly present."
14
And, I'm sorry, I don't understand the
15
relevance of the emotional connection between the
16
trainers and the animals as it pertains to safety.
17
MS. GUNNIN:
Judge, I'm going to object, since
18
we haven't offered the report.
19
line by line in the report that we didn't offer as to
20
his opinion in this case.
21
JUDGE WELSCH:
Mr. Black, I'm having trouble
22
with this line of questioning.
23
on.
24
25
MR. BLACK:
Mr. Black is now going
Sustained.
Let's move
Let me move on to something more
substantive.
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JUDGE WELSCH:
Let's take a break because our
break was kind of cut short earlier.
Let's take a
ten-minute break and be back at ten minutes until the
hour.
JUDGE WELSCH:
oath.
10
THE WITNESS:
Yes, sir.
11
JUDGE WELSCH:
Mr. Black?
12
MR. BLACK:
Thank you, Judge.
13
May I approach
the witness?
14
JUDGE WELSCH:
15
BY MR. BLACK:
16
Q.
Yes.
Mr. Andrews, I'm handing you -- I want to
17
touch back on something -- Exhibit C-14.
Turning your
18
attention to Page 142, Page 142 is an Annual Summary of
19
Monthly Updates on that document?
20
A.
Yes, sir.
21
Q.
And, when you spoke earlier and you said that
22
you had seen the annual summary, this is one of the
23
pages that you're talking about, right?
24
A.
I believe so.
25
Q.
And, you realize that that annual review, of
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course, was compiled by summarizing the monthly report
from a document?
A.
Yes, I assume.
Q.
And, so we could do a comparison and see
whether the monthly led to the annual, right?
A.
Yes.
Q.
And, you would expect to find that, in fact,
the information in the annual was based on information
in the monthly, right?
10
A.
Yes.
11
Q.
And, in fact, in relying on the annual
12
summaries or annual recap of monthlies, we could then
13
connect then assume that you considered that information
14
that's in the monthlies indirectly in your report,
15
right?
16
A.
You could probably make that leap of faith.
17
Q.
I mean, not just a leap of faith but
18
connections, logical connections, if you will?
19
A.
20
JUDGE WELSCH:
21
Sure.
What page are we talking as far
as the annual?
22
MR. BLACK:
Yes, on Page Sea World 142, Your
23
Honor, it says "Tilikum 2007 Annual Update," do you see
24
that?
25
JUDGE WELSCH:
Okay.
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BY MR. BLACK:
Q.
MR. BLACK:
You can set that aside; that document aside.

Are you understanding, Your
Honor, or did you find the page?
JUDGE WELSCH:
BY MR. BLACK:
Q.
Yes.
Now, your conclusions with regard to the
safety of working with Tilikum and that Tilikum was not
aggressive, that was something that you can put in your
10
report, your written expert report, right?
11
A.
Yes.
12
Q.
And, in fact, on Page 6, you say that the
13
conclusion related to this and related directly to the
14
circumstances on February 24th that led to the death of
15
Ms. Brancheau were based on, and then you list several
16
items, right?
17
A.
Yes.
18
Q.
And, you said that -- I'm looking about seven
19
lines down now.
20
Would you read that sentence, please?
21
22
A.
It says, "In my professional opinion."
"In my professional opinion, two
circumstances led to Ms. Brancheau's death."
Continue?
23
Q.
Please continue the next couple of sentences.
24
A.
"First, her hair was long, loose and flowing
25
out onto the surface of the water and drifting
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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 in his mouth in what
was likely a curious manner."
Q.
Okay, you can stop there.
Now, the basis for those statements of how
you thought Ms. Brancheau got into the pool, that was
based on your conversation with Mr. Tompkins?
10
A.
That's correct.
11
Q.
And, other than Mr. Tompkins, I think -- did
12
we establish yesterday that there were no other sources
13
that you relied upon in determining how Ms. Brancheau
14
got into the pool?
15
16
A.
Other than the videos and the items that I
listed on Lines 2 and 3 of that first paragraph.
17
Q.
So Lines 2 and 3, underwater video?
18
A.
Right.
19
Q.
But, that didn't tell you how Ms. Brancheau
20
entered the pool?
21
A.
Correct.
22
Q.
And, the above water video, how did that
23
24
25
inform you on that topic?

A.
Most of what led up to it and then the video
news releases and -- I forgot what you call it -- the
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Connell video.
Q.
That's the above water video?
A.
Correct.
Q.
And, the video news media, what are you
referring to that?
A.
The clips I saw on television.
Q.
TV news reports were part of the basis for
your understanding of how she entered the water?
A.
The video that I saw on those releases, yes.
10
Q.
And, when you say video on the news releases,
11
you mean parts of the Connell above-water video?
12
A.
Yes, and interviews with people.
13
Q.
And, specifically, which interviews do you
14
15
recall?
A.
I recall seeing the Chuck Tompkins interview,
16
I recall seeing an ex-Sea World employee, Thad Lacinak,
17
interview.
18
video interview, but I don't believe that gave me any
19
informative information.
20
Q.
I believe I recall seeing a Jim Atchison
And, you understand that Thad Lacinak and Jim
21
Atchison weren't at the pool at the time Ms. Brancheau
22
was in it, right?
23
A.
I do understand that.
24
Q.
You understand that anything they said was
25
not firsthand knowledge.
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A.
Correct.
Q.
And you also understand that Mr. Tompkins
wasn't at the pool at the time of the incident?
A.
Correct.
Q.
So, his understanding of what happened was
secondhand knowledge at best?
A.
Yes.
Q.
And, now when you say that the sensation of
floating hair was something with which he was not
10
familiar, in other words -- well, let me back up.
11
heard Ms. Flaherty Clark yesterday say that Tilikum had
12
for 20 years worked around wet hair and hair and the
13
like, right?
14
A.
Yes.
15
Q.
And, she gave her opinion that that
16
constituted desensitization of Tilikum as to hair,
17
right?
We
18
A.
Yes.
19
Q.
And, the opinion you give here is that the
20
sensation of floating hair was something with which he
21
was not familiar, correct?
22
A.
In that scenario, yes.
23
Q.
Pardon me?
24
A.
In that scenario.
25
Q.
What do you mean by "that scenario"?
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A.
I believe that that was a different scenario
than a majority of at least some of his previous
desensitization.
desensitized in a variety of ways and a variety of
scenarios to be desensitized to the presence of hair in
and around his body such that he would not behave in
such a way that they didn't find to be desirable or
appropriate.
I believe that Tilikum was properly
However, because Tilikum was not a water work
10
animal, the additional water work type of hair
11
desensitization probably did not occur that they would
12
normally undergo with, say, a water work animal.
13
Q.
14
15
I'm sorry, let me just back up.

You heard Ms. Flaherty Clark say what Tilikum
was used to wet hair and dry hair, right?
16
A.
Yes.
17
Q.
And, the hair that you're describing here is
18
wet hair, hair in water, right?
19
A.
Yes.
20
Q.
And, so it's your opinion that this was
21
22
23
24
25
something with which he was not familiar?

A.
Floating on the surface of the water was the
unfamiliar part; not the wet part.

Q.
So, how was he previously exposed to wet
hair, then, in your opinion?
CARLIN ASSOCIATES
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A.
Well, when a person has hair that is wet and
not necessarily in the water, it's still wet, so you can
desensitize an animal to a person with wet hair even if
it's not currently in water.
Q.
I don't understand.
How did Sea World
desensitize Tilikum as to hair?
Ms. Flaherty Clark --
What did you understand
A.
How do you desensitize an animal to hair?
Q.
No, no, how was Tilikum desensitized?
10
A.
I was not there for Tilikum's desensitization
11
to hair.
12
other types of desensitization processes that are
13
carried out.
14
or dry, that the animal was reinforced for behaving in a
15
way they found desirable in the presence of hair.
16
17
18
Q.
I would surmise that it was done not unlike
So, I would imagine with hair, either wet
In the presence of hair.
Tell me what that
means?
A.
What that means is you can put your head and
19
your hair closer and closer to Tilikum and reinforce
20
him for doing things other than, say, being attracted to
21
it or grabbing it, or mouthing it, or even looking at it
22
too curiously.
23
So, in the real world, the whale could be on
24
the med pool floor, the whale could have its head out of
25
water on a ledge, the whale could be in a slide-out, you
CARLIN ASSOCIATES
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know, slid out of the water, perhaps on the scale, and
then you would actually approach, you know, getting your
hair closer and closer to the animal, move your head and
your hair away and reinforce him for being calm
throughout that process, and if he were to behave in any
other way, other than what you want him a do, you
wouldn't reinforce him in that situation.
8
9
10
11
That's a very brief version of the system of

the desensitization process, but that's more or less how
it works.
Q.
But, you have no knowledge one way or the
12
other whether that's what they did with Tilikum to
13
desensitize him to hair, do you?
14
15
16
17
A.
I do not have any firsthand knowledge of them
using those steps, but those are the traditional steps.

Q.
And, you also have no knowledge that he was
unfamiliar with floating hair, do you?
18
A.
I do not.
19
Q.
So, your statement that floating hair was
20
something with which he was not familiar is not based on
21
any firsthand knowledge that you have?
22
A.
No.
Honestly, there's really nobody that
23
could make that claim, nobody anywhere, even the
24
trainers that work there every day for 20 years could
25
have firsthand knowledge of the animal never having
CARLIN ASSOCIATES
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familiarity with hair in water because the people would,
therefore, in order to satisfy your criteria here be for
every single interaction or, worse yet, 24 hours a day
for 20 years in order to satisfy your criteria.
Q.
Well, sir, with all due respect, it's your
opinion that it was something with which he was not
familiar.
A.
Yes, that is my opinion.
Q.
Without any data to support that opinion?
10
A.
Well, I'm not sure what comprises data.
11
12
The
information is data.
Q.
You tell me what information or data that you
13
have that he had not had hair floating on the surface
14
near his mouth?
15
A.
Well, that would be in the form of personal
16
communications from people, not only in the years that I
17
worked at Sea World but also in the years that I didn't
18
work at Sea World which was over ten years, and many of
19
my conversations with Mr. Tompkins prior to me writing
20
this report.
21
of process had not been undertaken because he was not a
22
water work animal.
23
Q.
You know, he would tell me that that type
When you say, "that type of process," that
24
type of process meaning putting floating hair in front
25
of Tilikum?
CARLIN ASSOCIATES
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A.
Yes.
Q.
So, floating hair had not been in front of
3
4
Tilikum previously; is that what Mr. Tompkins told you?

A.
He didn't list that specifically, but he
acknowledged that water work hair desense had not been
conducted with Tilikum due to the fact that he was not a
water work animal.
8
9
10
Q.
And, he didn't give you the data to say that
hair had never floated in the water and made contact

with Tilikum's rostrum, right?
11
A.
He gave me the information.
12
Q.
He told you that that had never occurred?
13
A.
He told me that water work hair desense had
14
15
16
not been conducted with Tilikum.

Q.
And, water work hair desense, Ms. Brancheau
wasn't performing water work, right?
17
A.
Correct.
18
Q.
And, Ms. Flaherty Clark testified extensively
19
yesterday as to how Tilikum had been desensed to hair,
20
wet hair and dry hair?
21
A.
And, I believe that to be true.
22
Q.
So, you're saying that all of her testimony
23
about Tilikum being desensed as to hair had nothing to
24
do with, no relevance to this accident that occurred,
25
right?
Is that your testimony?
CARLIN ASSOCIATES
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A.
I'm saying that that type of desense in my
opinion, the wet hair and dry hair desense was conducted
and was reliably desensitized to the whale, but that is
a different type of -- there's a different goal in mind
than water work hair desense.
Q.
But this wasn't water work, sir.
A.
Correct, but my point stays the same; that
there are two different goals here.
There is just
traditional hair desense not unlike whistle desense that
10
she referred to as well that was conducted, and then
11
there is additional desense required for water work
12
animals.
13
Q.
14
But, Sea World makes a dramatic distinction
between water work and dry work, sir?
15
A.
They do.
16
Q.
So, it's their contention, Sea World's
17
contention that Ms. Brancheau was performing dry work?
18
A.
Correct.
19
Q.
And, so in distinguishing between water work
20
and dry work, in fact, Sea World's safety protocol
21
didn't take account of the fact, in your opinion, that
22
hair could get wet during dry work in eight inches of
23
water, right?
24
A.
Yes.
25
Q.
And, in that opinion, part of it is that he
CARLIN ASSOCIATES
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wasn't familiar with hair having floated, right?
A.
Correct.
Q.
Even though you didn't have a factual basis
for knowing whether or not he had ever had hair float
into his rostrum before, correct?
6
7
8
9
A.
Well, I would question the factual basis
part, but the rest of it, I would agree with.

Q.
Tell me -- we've been through this sort of
once, but tell me what factual basis?
Who told you
10
Tilikum had not had floating hair in his face before;
11
his rostrum?
12
A.
The answer is still Chuck Tompkins.
13
Q.
Now, you heard here in Court earlier, I
14
believe back in September, the testimony of Jan
15
Topoleski, right?
16
A.
I did.
17
Q.
And, you heard him testify about the session
18
that Ms. Brancheau was engaged in with Tilikum at the
19
time she was pulled into the water by Tilikum?
20
A.
Yes.
21
Q.
And, you heard him say that he saw her
22
holding onto her hair?
23
A.
Right.
24
Q.
But, you didn't hear him say anything about
25
how the hair got into Tilikum's mouth, right?
CARLIN ASSOCIATES
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A.
Correct.
Q.
And, you also heard Fredy Herrara testify
that he thought it was her arm, in fact, that he grabbed
first, right?
A.
Yes.
Q.
So, both of those witnesses lent no support
to your conclusion here as to how the hair got into
Tilikum's mouth?
A.
Okay.
10
Q.
11
A.
Certainly, not Mr. Herrara's, but perhaps Mr.
12
Topoleski's.
Perhaps.
13
Q.
Tell me how?
14
A.
Well, the position that he described for
15
holding her hair indicates to me that her hair was in
16
his mouth.
17
Q.
Somehow the hair got in his mouth.

Your opinion was not that the floating hair
18
might have gotten into his mouth or likely got into his
19
mouth from floating into it?
20
A.
Um-hum.
21
Q.
It was that it did, right?
22
A.
Yes.
23
Q.
So, Mr. Topoleski's testimony doesn't allow
24
you to make the statement that that's how it happened,
25
right?
CARLIN ASSOCIATES
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A.
You know, all of us are wondering what
happened between those two moments.
the hair get into his mouth, right?
Q.
You know, how did
And, you gave an opinion, not just an opinion
but you first told us how it happened, and then you told
us what it meant?
A.
And I believe it to be true.
Q.
You believe it to be true; yet, you didn't
9
10
conduct an independent investigation by talking to eye

witnesses, for example?
11
A.
No, I did not.
12
Q.
You spoke to Mr. Tompkins?
13
A.
Not prior to writing this.
14
Q.
I'm not concerned about your opinion today
15
after having heard all the testimony.
16
probably want to change that opinion?
You, in fact,
17
A.
No, I do not.
18
Q.
You do not, based on everything you've heard?
19
A.
Correct.
20
Q.
And, you agree that you did not look at the
21
Sheriff Department's investigation which contained
22
interviews?
23
A.
I did not.
24
Q.
You did not look at the autopsy report of Ms.
25
Brancheau?
CARLIN ASSOCIATES
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A.
Correct.
Q.
So, the only investigation that you conducted
was one of looking at some videos that didn't show how
it happened, you listened to Thad Lacinak and Chuck
Tompkins and Jim Atchison opine on it, and then you
talked to Mr. Tompkins, right?
A.
Correct.
Q.
And, then, you felt qualified based on that
to definitively state how Ms. Brancheau's hair, you
10
thought, got into Tilikum's mouth and how she get into
11
the water, right?
12
A.
Yes.
13
MS. GUNNIN:
Judge, I would object again to
14
this line of questioning because we have not proffered
15
Mr. Andrews as an expert to provide opinion on how Ms.
16
Brancheau got into the water, what happened once she was
17
in the water, we have not offered any of that testimony.
18
So, I think that Mr. Black, if he's testing credibility,
19
a couple of questions should suffice other than ten
20
questions on the same point.
21
JUDGE WELSCH:
22
BY MR. BLACK:
23
Q.
Overruled.
Go ahead.
And, you went further after you made the
24
statement of how her hair got into his mouth and then
25
you gave the opinion that because he didn't have hands,
CARLIN ASSOCIATES
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he grasped her hair in his mouth in what was likely in a
curious manner?
A.
Correct.
Q.
And, what is it that tells you when a whale
is curious or not?
What in your behavioral training
tells you that a whale is acting in a curious way?
A.
The same way any animal or person behaves in
a curious way.
attention with whatever device it has towards whatever
You know, by offering additional
10
the scenario or object is, and in this scenario or
11
object with this particular species of animal, it's
12
either going to tilt its head in such a way to where it
13
looks at it maybe a little bit closer, gets its eye
14
closer to the item, perhaps it tries to corral the item,
15
you know, over its back with a killer whale, around its
16
pec, maybe it tries to lift it out of the water or most
17
often will drive into its mouth.
18
19
Q.
You didn't interview Tilikum and ask him
whether he was curious, did you?
20
MS. GUNNIN:
Judge, I object to that question.
21
JUDGE WELSCH:
Sustained.
22
BY MR. BLACK:
23
Q.
So, you have now used the term curiosity to
24
describe what the whale was likely feeling or thinking,
25
right?
CARLIN ASSOCIATES
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A.
The way the whale was behaving.
Q.
The way the whale was behaving?
A.
Um-hum, yes.
Q.
So, you can tell that grabbing onto hair is
curious as opposed to aggression, based on whether the
whale -- how the whale bites down on it.
testimony?
8
9
10
11
A.
Is that your
Yes, the manner in which whales grasp things
with their mouth lends one to believe its intentions.

Q.
So, now you think you know what Tilikum's
intentions were, based on what you read and heard?
12
A.
No, I wasn't there, right?
So, am I offering
13
up an opinion?
14
pretty fair job of assessing animal behavior correctly.
Of course, I am, right?
But, we do a
15
Q.
What do you mean, "we" do a fairly good job?
16
A.
Skilled and experienced animal trainers who
17
spend the majority of their day every day working with
18
these animals do a pretty good job of assessing subtle
19
behavior and sometimes not so subtle behavior, and
20
approaching that behavior in a way that is most
21
appropriate for the type of behavior that it probably
22
is, even though taking hair into ones mouth or an object
23
into ones mouth in one way, you might want to handle it
24
differently than if it takes an object into its mouth in
25
a different way.
CARLIN ASSOCIATES
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Q.
So, when you say, "we do a pretty good job
assessing it," is there something about animal trainers
that allows them to opine on the feelings of what is
going on in the whales internally?
A.
The trainers can't read the animals' minds if
that's what you're getting at, but these trainers are
very skilled at assessing subtle behaviors in the
animals and making judgements on what is motivating the
animal to behave in that way.
10
11
Q.
And, the subtle judgements on what's
motivating the animal?
12
A.
Not subtle judgements, subtle behaviors.
13
Q.
Subtle behaviors?
14
A.
Right.
15
Q.
Judgements on subtle behaviors.
So, there is
16
something about animal training and animal behavior that
17
allows you to understand what that behavior is and what
18
is subjectively internally going on with the whale?
19
A.
Not just professional animal trainers, but
20
pet owners do a pretty good job of it too, right?
You
21
typically have a pretty good idea of what your dog is
22
intending.
23
is, but you can tell when you're opening up the front
24
door, if your dog based on the way he's standing and
25
positioning itself, if it's going to remain there with
You might not know what its emotional state
CARLIN ASSOCIATES
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you when you open your door, of it's going to jump up
and down or if it's going to run through the door and
take off down the street.
of knowing that, don't you?
Q.
You have a pretty good idea
So, whales, much like dogs, you're able to
understand the intention of the whale, what is going on
internally with the whale?
8
9
A.
Either what motivated an animal to do what it
just recently did or perhaps predict what it's going to
10
do next.
11
Q.
Now, you make a second conclusion as to what
12
happened to Ms. Brancheau and Tilikum.
You say that his
13
second is curiosity with the hair.
14
sentence and the next three or four sentences?
Would you read that
15
A.
16
JUDGE WELSCH:
Do you want him to read it out
JUDGE WELSCH:
Yes, Your Honor, I think this is
17
18
Will you direct me to it?
loud?
19
important.
20
goes to the credibility.
21
JUDGE WELSCH:
22
This is one of the key points that we think
Before we do that, could
Counsel up here for a second?
23
(Whereupon, a short discussion
24
25
I see
JUDGE WELSCH:
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Mr. Andrews, before I forget, I will remind you you're
under oath.
Let me just state at this juncture I am granting
the Respondent's motion to discontinue the further line
of questioning regarding Mr. Andrews' opinion involving
Ms. Brancheau's death.
7
8
9
10
I stated that for you, Ms. Gunnin.
I assume you
are making a motion.

MS. GUNNIN:
Yes, Your Honor.
JUDGE WELSCH:
I'm going to grant the motion and
11
stop further testimony from Mr. Andrews regarding his
12
opinions on Ms. Brancheau's death.
13
I'm finding that further opinions that are
14
identified in his report at C-15 since the report and
15
those opinions weren't offered as part of Sea World's,
16
case I don't find them relevant to the issues that are
17
before me and, more importantly, the issues involving
18
the opinions that were raised by Mr. Andrews that was
19
offered as part of Sea World's case.
20
Mr. Andrews in response to the questioning by Ms. Gunnin
21
did not involve any opinion with regard to Ms. Brancheau
22
and how she died.
23
Those opinions by
I do recognize that it is a part of the report,
24
but the report has been offered by the Secretary and not
25
Sea World.
I have allowed it to continue regarding the
CARLIN ASSOCIATES
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first opinion.
second opinion because I don't think it's relevant to
the opinions that were offered by Sea World, and I think
it potentially raises a lot of other issues that really
are not before me that I have to decide in terms of the
issues in the OSHA citations.
7
8
9
I am not allowing it with regard to the
Okay, with that, Mr. Black, do you need to make a

proffer?
MR. BLACK:
I do, Your Honor, and the basis
10
for the proffer is that we do think that the opinions
11
here reflect directly on the credibility of a witness
12
who has prepared the report and given these opinions in
13
this case, and while the opinions have not been
14
presented at trial, they are a part of the report that
15
he prepared as an expert in this case and do reflect on
16
his credibility.
17
If we were allowed to ask the line of questioning
18
that we would like, the opinion certainly contained on
19
Page 6, the second opinion as to further how Ms.
20
Brancheau got into the water, what happened and the
21
opinion that Tilikum was not aggressive towards her once
22
she got into the water and what Tilikum was thinking
23
once she got into the water.
24
25
Additionally, we think that the opinion about the

mistake that was allegedly made by Ms. Brancheau
CARLIN ASSOCIATES
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reflects on the credibility of the witness, especially
when we have heard testimony that she did nothing wrong
in how she was behaving.
So, the proffer is that we be allowed to have
questioning about this as well as to offer and ask
questions about the underwater video regarding whether
or not it was aggressive to show that, in fact, the
behavior was aggressive or at least it was not a clear
cut case of not being aggressive.
10
JUDGE WELSCH:
Have you concluded your proffer?
11
MR. BLACK:
I have, Your Honor.
12
JUDGE WELSCH:
For Sea World, do you wish to
13
respond to the proffer?
14
MS. GUNNIN:
No, Your Honor.
15
JUDGE WELSCH
Let's proceed on.
16
MR. BLACK:
Thank you, Judge.
17
BY MR. BLACK:
18
Q.
Now, Mr. Andrews, you're familiar with a
19
killer whale named Taima who had been at Sea World of
20
Florida?
21
A.
22
23
Not very well, but, yes, I'm familiar with a
whale named Taima.

Q.
And you know that she became a nonwater work
24
animal because of aggression that she had exhibited in
25
interactions with trainers?
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A.
I'm aware of that but not the details.
Q.
And, you're familiar with the incident report
that led to her becoming a nonwater work whale?
A.
I would have to review it again.
Q.
If you want to turn to, I believe it's Page
720, Exhibit C-6.
you a couple of questions before I take a look at this.
8
9
10
I'll set this here.
I want to ask
Now, earlier in your Direct testimony, you

talked about causes of aggression and possible reduction
techniques?
11
A.
Yes.
12
Q.
And, Sea World published a paper by that
14
A.
Yes.
15
Q.
And, in that paper, you said there were
13
name?
16
several types of aggression, killer whale aggression,
17
right?
18
A.
Well, causes of aggression.
19
Q.
Causes of aggression, I'm sorry.
20
A.
Yes.
21
Q.
Including social issues?
22
A.
Yes.
23
Q.
Hormonal fluctuations?
24
A.
Yes.
25
Q.
Physical duress?
CARLIN ASSOCIATES
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A.
Yes.
Q.
And physical duress, you said, might include
illness or injury to an animal?
A.
Correct.
Q.
And, then, the scheduled induced aggression?
A.
Correct.
Q.
Then, you also mentioned predatory nature as
another type of aggression as well?
A.
Yes.
10
Q.
And, in asking you about predatory
11
aggression, you haven't done any study of how often
12
killer whales at Sea World were involved in behavior
13
that would constitute predatory aggression?
14
A.
I have not.
15
Q.
And, you're not aware of any study or any
16
data that shows how often killer whales at Sea World
17
engage or make movements that are aggressive based on
18
predatory aggression?
19
20
21
22
A.
I have not.
And, when you "Sea World," do
you mean Sea World of Florida?

Q.
Any of the Sea Worlds, Sea World of Florida
or Sea World Corporation, any of the Sea World Parks.
23
A.
I do not, right.
24
Q.
And, no study of how often, in fact, Sea
25
World killer whales make movements that are aggressive
CARLIN ASSOCIATES
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movements, in fact?
A.
Well, aggressive movements would be
documented in the incident log, you know, for aggression
caused by various means, sources.
Q.
But, you don't understand the incident
reports to document every single time that a killer
whale has exhibited aggressive behavior, do you, as
opposed to aggressive behavior that might have had
either contact with a trainer or presented a danger to
10
trainers?
11
A.
Aggressive behavior towards people, the
12
intent from 1988 on was to document every aggressive
13
event, incident towards a human, whether it's a trainer
14
or otherwise is the intent, so much so that oftentimes
15
they err on the side of reporting even incidents that
16
are questionably aggressive or even questionably meet
17
the criteria for aggression.
18
written up and counted in the interest of learning.
19
20
Q.
Nonetheless, they get
What number of incidents in Exhibit C-6 falls
into that category of nonaggressive behavior?
21
A.
I don't know off the top of my head.
22
Q.
You haven't done any sort of counting of
24
A.
No, I have not.
25
Q.
And, so you're saying that aggression by
23
that?
CARLIN ASSOCIATES
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whales exhibited towards a trainer is always reflected
in those incident reports?
A.
That's the intention, yes.
Q.
But, of course, we've seen that some of them
were missed?
A.
Right.
Q.
Including in Exhibit C-14 the monthly recap
and the annual recap, right?
A.
Are you referring to the Tilikum head thrash?
10
Q.
Yes.
11
A.
Again, I don't have all the details of that;
12
you know, when it occurred, how it occurred, the
13
oversight of it.
14
the criteria of aggression to constitute the need for an
15
incident report write up.
16
Q.
But, looking at it, it would not meet
What type of aggression exhibited by a killer
17
whale would meet the criteria in order to make it into a
18
single report?
19
A.
Well, I wouldn't categorize it as type of
20
aggression, meaning is it social aggression, is it
21
scheduled induced aggression, is it hormonal aggression,
22
but I would characterize it as the level of aggression
23
and if I remember correctly, the criteria -- and this
24
goes back a long time -- the criteria was that contact
25
with a trainer was necessary and/or the whale needed to
CARLIN ASSOCIATES
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come out of the water up onto, say, a slide-out or a
stage or some other area up to its pectoral flippers.
3
4
Q.
So, aggression reaching a certain level of
hazard or risk?
A.
Yes, or intention.
JUDGE WELSCH:
Was what written somewhere?
THE WITNESS:
That's a good question.
recall, sir, if that criteria was written down
somewhere.
10
11
JUDGE WELSCH:
You're going by when you were
working at Sea World?
12
THE WITNESS:
13
recollection, yes, sir.
14
I don't
JUDGE WELSCH:
I'm going back to personal
Because you didn't write the
15
guidelines used or any guidelines at all in terms of
16
what's used to fill out the incident reports?
17
THE WITNESS:
The guidelines for them?
18
Initially, back when these were started in 1988, no,
19
sir, I wouldn't have been involved in the writing of
20
them, but as those guidelines changed over time and my
21
position became more authoritative for lack of a better
22
word, I would have been involved in the rewriting,
23
amending of these protocols.
24
25
JUDGE WELSCH:
I guess what I'm getting to is
your definition or what you're saying should go into
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those incident reports, that's based upon you as an
assistant curator at the San Diego Park.
THE WITNESS:
Yes.
JUDGE WELSCH:
Do you know whether or not the
assistant curator of Orlando Park had to follow the same
guidelines?
aggressive behavior to go into the incident report might
be a little broader or maybe even narrower.
Maybe her definition of what constitutes an
Unless there's some written guidelines that you
10
can point me to, I'm not sure you're not just speaking
11
for San Diego as opposed to Orlando or San Antonio or
12
wherever.
13
THE WITNESS:
All fair enough.
And, I can't
14
speak to whether or not, you know, they were interpreted
15
more broadly or narrowly.
16
out there, you know, it is my belief that that criteria
17
was standard throughout the parks.
18
19
JUDGE WELSCH:
I believe just throwing it
But, you're not aware of any
written criteria?
20
THE WITNESS:
I'm not, right.
21
JUDGE WELSCH:
So, it all had to be verbally.
22
THE WITNESS:
Um-hum, not to say that the
23
written protocol didn't exist, right?
24
recall.
25
I just don't
BY MR. BLACK:
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Q.
You're not aware of any written protocol?
A.
Correct, I just don't recall.
Q.
You didn't review any written protocol in any
of the 2,600 pages that you reviewed?
A.
I don't recall reviewing it prepping for this
case.
recall reading it.
8
9
10
11
12
Not to say that it's not in there, but I don't
Q.
That would have been kind of an important
thing in opining on whether it's the standard procedure

at all the parks or not?
A.
Right, but that wasn't really the purview of
my report.
13
Q.
14
unpredictable?
15
A.
It can be.
16
Q.
Killer whales sometimes engage in
17
You would agree that sometimes aggression is
unpredictable aggressive behavior, right?
18
A.
It can be, yes.
19
Q.
And by "can be," you agree with me that
20
sometimes that, in fact, is the case?
21
A.
Sometimes it is the case, yes.
22
Q.
And, now --
23
A.
Or I should say that it wasn't predicted; not
24
that it's categorically unpredictable; that it just
25
wasn't predicted in that scenario.
CARLIN ASSOCIATES
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1
2
Q.
That nobody saw the precursor or saw whatever
it was that caused the aggression, right?
A.
That has occurred, yes.
Q.
And, when you say aggression, what is the
definition, the operative definition of aggression
you're using?
A.
8
9
I don't have an operating definition of
aggression to recite off the top of my head.

Q.
But, you have opined on aggression
10
extensively in that report and in your Direct testimony,
11
right?
12
A.
Yes.
13
Q.
But, you don't have a definition for
14
aggression?
15
A.
I don't have one to offer right now, no.
16
Q.
Let's have you turn to that page again or the
17
page actually I have turned to 721.
18
JUDGE WELSCH:
This is Exhibit C-6, Page 721?
19
MR. BLACK:
Yes, Your Honor.
20
BY MR. BLACK:
21
Q.
And, this incident report what we're looking
22
at indicates on Page 723 that there were no precursors
23
observed with the killer whale, right?
24
A.
Okay, I see that, yes.
25
Q.
Thank you.
And, then, on Page 725 under the
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"originating park, curator comment," these are comments
of Mr. -- Mr. Tompkins was the park curator back in
2002, right, at Sea World of Florida?
A.
In 2002, he would have been Vice President.
Q.
And also the curator?
A.
Yes, sounds right.
Q.
And, then, under his comments, he says that
he describes Taima as engaging in aggression that could
have been unpredictable, right?
10
11
A.
I would have to read it.
Are you referring
to the second to last sentence?
12
Q.
13
He indicates that:
"We've instructed all trainers to treat Taima
14
as though all sessions have the potential of
15
unpredictable aggression."
Right?
16
A.
Yes.
17
Q.
And, his view was that this is a whale who
18
might engage unpredictably in aggression, right?
19
A.
Yes.
20
Q.
And, if you look at the next page, Sea World
21
of California, the curator at that time was Mr.
22
Scarpuzzi in 2002?
23
24
25
A.
The curator would have been Al Garver in
Q.
So, Al Garver agreed that the trainers needed
2002.
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to have awareness, increased awareness of the
unpredictable nature of some aggressive behavior, right?
A.
He says that, yes.
Q.
And, in saying that, the point of that is
that sometimes a killer whale might do something
aggressively that is unpredictable and puts trainers in
danger, right?
A.
9
10
11
12
That the animals may behave unpredictably and
even unpredictable aggression at times, I think is what

he's saying.
Q.
So, therefore, you are now on notice that
that, in fact, could occur?
13
A.
14
greater care.
15
sessions have the potential of unpredictable aggression
16
and to be careful with their body posture is what he's
17
saying.
18
Q.
That they need to, as I think he wrote, take

You had to treat them as though all
But, that's not just the case for Taima.
19
That is, all whales are capable of unpredictable
20
aggression, right?
21
22
23
24
25
A.
They are, yes, but I don't think that's what
he's saying here.

Q.
there.
No, no.
I think he's referring to -My question has gone beyond what's
I'm asking a general question now.
A.
Just in general.
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1
2
3
4
5
Q.
All killer whales at Sea World are capable of
unpredictable aggression?
A.
Yes, all animals are capable of unpredictable
aggression.
Q.
And, killer whales, of course, present a
potentially very significant hazard, say, much greater
than your pet dog or pet cat if the killer whale were to
be unpredictably aggressive, right?
A.
Potentially, yes.
10
Q.
When you're dealing with aggression, an
11
article that you referenced earlier about aggression in
12
marine mammals, it was only about reducing aggression;
13
that is, it was about possible reduction techniques,
14
right?
15
A.
That was part of it.
16
Q.
What were the other parts of it that you
17
18
19
20
recall?
A.
If I recall, the first section is about
understanding the causes of aggression.

Q.
So, the point was to understand the causes of
21
it and then to understand how to potentially reduce the
22
aggression, right?
23
A.
Or avoid it.
24
Q.
Or avoid it.
25
And, in that article, it lists
a number of warning signs, a number of indicators that
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aggression might be about to occur, and those are
something that Sea World talks about or discusses on
those precursors?
A.
JUDGE WELSCH:
Yes.
Can you reference the name of
this article?
MR. BLACK:
We're pulling it right now.
BY MR. BLACK:
Q.
And, then, there's also the list of
10
precursors and then there's a list of potentially
11
dangerous situations, if you will, right?
12
A.
Okay.
13
Q.
Do you recall that?
14
A.
I do.
15
I would have to look at it again to be
sure what I'm testifying to but --
16
Q.
Status of the third point?
17
MR. BLACK:
18
as C-16.
19
Page 625 through 639.
Your Honor, if we could mark this
And, for the record, Ms. Gunnin, it's just
20
JUDGE WELSCH:
Is that in my book?
21
MR. BLACK:
It is.
22
23
24
BY MR. BLACK:
25
Q.
It's at Tab C-24.
And, Mr. Andrews, this Exhibit C-16, is this
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what you were referring to earlier?
A.
MR. BLACK:
Your Honor, we would offer C-16.
MS. GUNNIN:
No objection.
JUDGE WELSCH:
Yes, it looks like it.
objection.
BY MR. BLACK:
10
Q.
Now, on the tenth page of this document,
11
there's a flow chart as to causes of aggression.
12
see that?
13
A.
Yes.
14
Q.
Let me back up.
15
Do you
Back up to Page 6 of this
document?
16
A.
(Witness Complies).
Page 6.
17
Q.
You might have to look at Page 5 to be able
18
to put it into context, but Page 6 is a listing of
19
precursors, right?
20
A.
Yes.
21
Q.
And, the purpose of this article, this
22
document was to help trainers be more safe?
23
A.
Correct.
24
Q.
And, so on Page 6, there are 19 precursors,
25
right?
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A.
Yes.
Q.
And, it lists, for example, head bobbing,
unusual vocalization, and it has a long list there,
right?
A.
Yes.
Q.
And Number 7, ignoring signals?
A.
Yes.
Q.
A.
Refusing to do a behavior that you ask them
10
11
to go do.
Q.
So, splits, for example, that is if you ask a
12
whale to do a particular behavior, and the whale instead
13
splits, that would be a potential precursor of
14
aggression, right?
15
16
A.
It could be, it could be, although I wouldn't
put that under ignoring signals.
17
Q.
What would you put that under?
18
A.
I would put it under Number 20, splitting.
19
So, in other words, this list is not necessarily
20
exclusive, right?
So, there could be more precursive
21
behavior in here.
Sometimes they are not precursive to
22
aggression, right?
And also some of these behaviors in
23
here aren't necessarily -- even though it's listed as a
24
potential precursor to aggression behavior, it's not
25
always actually a precursor to aggressive behavior, so
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in other words, this isn't a corporate list.
Q.
That's why the word, "potential," is in front
of it, right?
A.
Yes, right, right.
So, to answer your
question, splitting, you could put as a subcategory of
7, but what the author is trying to get at there is if
you asked the animal to do something, and the animal
doesn't do that behavior; instead, just stands there or
stays there looking at you or maybe not looking at you,
10
but it just doesn't go anywhere really is what he's
11
looking at.
12
So, you ask the animal to go do bows around
13
the pool and animal refuses to go do bows around the
14
pool.
15
animal doesn't swim fast.
16
than what you're getting at.
17
Then, you ask the animal to swim fast, and the
Q.
So, it's a different scenario
So, is it fair to say this is part of the
18
training material that is given to new trainers, right?
19
Is that your understanding?
20
A.
It's within the staff development program at
21
Sea World, but I don't know if it would go out
22
immediately to new trainers.
23
Q.
Fair point.
It might not go out on day one;
24
it might go out at month two, for example, but early in
25
their training?
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A.
When they're ready for it.
Q.
And, ready for it early in their training;
3
4
5
6
that is, as they're trying to learn about precursors?

A.
Right, and you're actually putting them in
front of the animals.

Q.
Or getting ready to because you would want
them to understand this before you put them in front of
the animals, right?
A.
That's right.
10
Q.
And, of course, knowing the precursors,
11
that's a start in controlling their direction, right?
12
A.
Very helpful.
13
Q.
So, it's really for the trainer to have a
14
knowledge of what the precursors at Sea World has
15
determined are, right?
16
A.
Yes, and others as well.
17
Q.
Well, this is the only list of precursors
18
that Sea World provides anywhere in writing to its
19
trainer, right?
20
21
22
23
A.
I can't confirm that for you, but it's
certainly the only list I see in this document.

Q.
In reviewing those 2,600 pages, do you recall
any other lists?
24
A.
I don't recall right now, no, I don't.
25
Q.
So, if you wanted to add Number 20 or 21 or
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22, that's something that you might want to add, but
that's not something that's given to the trainers,
right?
A.
No, but it's discussed through the mentoring
program at Sea World.
training of people that is actually more effective in
teaching safe practices than a written piece of paper,
whether it's a protocol or an article like this.
9
10
Q.
13
I understand hands-on is important, but it's
also important to put it in writing?
11
12
But, again, it's the hands-on
A.
It's still important to put it in writing,
Q.
And, it's important to put potential
yes.
14
precursors to aggression in writing, because you want to
15
make sure that you're not missing one in your discussion
16
or in your training, right?
17
A.
You're absolutely right, and during the
18
training of trainers in this type of concept, I don't
19
have any firsthand account, and I didn't write any
20
statistical analysis, but I assume that the trainer --
21
you know, the trainer of trainers discussed the concept
22
as I do that sometimes these behaviors are not
23
precursive to aggression.
24
the animal blowing bubbles in Number 15.
25
bubbles all the time.
They're just a behavior like

Animals blow
You know, 99 times out of a
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hundred, it has nothing to do with aggression.
Conversely, the list is certainly not
complete, and in your career, you may make sure that you
keep your mind open to other behaviors that you may
consider to be precursive to aggression.
6
7
Q.
10
11
12
13
14
Name three additional
precursors that you know of for killer whales?
8
9
Tell me specifically.
A.
list.
For killer whales, I would have to read the
Again, potential is important and you mentioned
splitting.
Q.
Splitting could be.

Let's forget splitting.
That was mine.
You
have to come up with your own.

A.
No, no, 19 just got me.
Any abnormal
behavior.
15
Q.
Right.
16
A.
Do we have aggression towards other animals?
17
18
19
20
Is that on this list?

Q.
That's on the list of causes of aggression
that's in this document.

A.
But aggressive to another animal could be a
21
precursor to aggression towards a person.
22
right.
23
24
25
Q.
It's listed here under dangerous situations,
beginning on Page 7, right?

A.
It could be,
Yes.
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1
2
3
Q.
So, it's already listed in this document.
Any other precursors?

A.
Yes.
I mean, we could spend a lot of time on
this exercise and come up with plenty of other behaviors
that animals do in a certain scenario that may be
considered potentially a precursor to aggression, but
under other scenarios, not so much.
8
9
Q.
But, I'm asking you here and you're saying we
have these discussions, that trainers have discussions,
10
so they know the precursors and, yet, you're having
11
difficulty, it appears, coming up with just off the top
12
of your head other types of precursors.
13
A.
Well, it's just an exercise that doesn't
14
excite me.
15
behavior, and, let's see, behaviors below criteria isn't
16
listed here.
17
18
19
Q.
But, sure, you ask an animal to go perform a
Again, that's listed under the next section,
dangerous situation.
A.
Well, I'm saying in my opinion that behavior
20
such as aggression towards other animals could be a
21
precursor to aggression towards people, and performing a
22
behavior below criteria could be a precursor to
23
aggression.
24
25
Conversely, a behavior performed or emitted

far above normal criteria and far above the normal
CARLIN ASSOCIATES
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intensity of the behavior could also be precursor to
aggression.
3
4
Q.
There's three.
And, two of those are already listed under
dangerous situations.
Let me ask you a question about -- in
reducing or eliminating aggression, one of the keys in
Sea World or that Sea World believes is a key is
understanding situations where aggression can usually
occur, right?
10
A.
Okay.
11
Q.
Do you agree with that statement?
12
A.
What page is that on?
13
Q.
I'm not asking about a page.
14
I'm asking a
question.
15
A.
Okay, ask it again, please.
16
Q.
Certainly.
Understanding situations where
17
aggression can usually occur, and that's important to
18
reducing aggression?
19
A.
Yes.
20
Q.
And understanding the precursors is an
21
important part, right?
22
A.
Yes.
23
Q.
And, also keeping records so trainers can
24
learn from their mistakes is an important part of
25
reducing aggression, right?
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A.
The learning process, yes.
Q.
So, in other words, sometimes Sea World
learns about aggression after a trainer has made a
mistake, right?
5
6
7
8
A.
Yes, I believe we've already heard that
testimony here during this case.

Q.
Right, and sometimes the first mistake could
be potentially a fatal mistake, right?
A.
Yes.
10
Q.
Now, you spoke earlier on Direct about AZA
11
accreditation standards for killer whales?
12
A.
Yes.
13
Q.
And, I'll hand you Exhibit R-5.
Exhibit R-5
14
are the AZA accreditation standards for member
15
institutions?
16
A.
17
The first page is, the second page is, and I
assume the rest of it is as well.
18
Q.
Do you want to take just a moment?
19
A.
No, that's okay.
20
Q.
This is not a trick unless somebody has made
21
a grievous error.
And, Section 11.5, if you would turn
22
to that -- and let's see what page we're talking about
23
-- Page 19.
24
A.
Page 19, thank you.
25
Q.
It's in the lower, right corner, it's Sea
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World's 1704.
Animals"?
Do you see where it says, "Dangerous
A.
Yes.
Q.
And, earlier you talked about that Sea World
is an accredited AZA institution, right?
A.
Yes.
Q.
And, then, for Dangerous Animals, we would
have to turn to 11.5.3 to find the accreditation
standard or the specific way that institutions having
10
dangerous animals have to comply, right?
11
A.
Yes.
12
Q.
And, then, it provides a short paragraph that
13
says, "Institutions maintaining potentially dangerous
14
animals," skipping a part, "must have appropriate safety
15
procedures in place to prevent attack and injuries by
16
these animals"?
17
A.
Right.
18
Q.
Appropriate response procedures must also be
19
in place to deal with an attack resulting in an injury?
20
A.
Yes, right.
21
Q.
And, it talks about emergency drills and
22
reports of injuries that result from incidents and the
23
like, right?
24
A.
Yes.
25
Q.
So, you're familiar with this?
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A.
I am.
Q.
Now, this is what is known as a performance
standard, that is, a standard that requires Sea World to
come up with the way that it's going to comply with it?
5
6
7
8
A.
And other zoos, of course; any accredited
facility.
Q.
I'm sorry, I over-talked you.
Would you
repeat that last part?
A.
In addition to any accredited facility.
10
Q.
And, this is all that AZA has on how to deal
11
with killer whales, how to deal with safety issues on
12
13
A.
I believe so.
14
Q.
And, from this, Sea World has to analyze the
15
risks that killer whales present, right?
16
A.
Yes.
17
Q.
And, has to determine what safety procedures
18
will prevent those risks, right?
19
A.
Yes.
20
Q.
And, they have to prevent incidents that
21
could lead or result in injury or death, right?
22
A.
Yes, abate the risks and minimize the risks.
23
Q.
Now, you say Sea World is the industry
24
25
leader?
A.
Correct.
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Q.
With captive killer whales?
A.
Correct.
Q.
So, it's the one -- it sets its own
standards, if you will, in order to comply with this or
meet this?
6
7
A.
Well, I believe that the standards that they
set are deemed to be appropriate by the AZA.
Q.
They're deemed to be appropriate?
A.
Yes.
10
Q.
I don't understand what you mean, "deemed to
11
12
be appropriate"?
A.
Why do you believe that?
Well, the fact that Sea World is still
13
accredited and has been accredited at least in the last
14
five years means that when the accreditation committee
15
came through each of the Sea World Parks during that
16
five-year cycle and when they reviewed these sections in
17
the accreditation process, they deemed that Sea World
18
was compliant with 11.5.2 and 11.5.3.
19
20
Q.
Well, in fact, you don't know.
You just
surmise that there was an AZA audit of Sea World?
21
A.
I was not there for it.
22
Q.
You don't know that the AZA actually looked
23
I do surmise, yes.
at, for example, corporate incident reports?
24
A.
I do not know, but I --
25
Q.
You don't know that, right?
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A.
I don't know that.
Q.
And, there's no assurance that the AZA, in
fact, reviewed the effectiveness of Sea World's safety
protocols, right?
A.
I do not know.
Q.
Now, are you familiar with risk management or
risk management policies or assessments?
A.
Just in general, you mean?
Q.
In general.
10
A.
Yes.
11
Q.
As an associate curator of zoos?
12
A.
Yes.
13
Q.
14
A.
A risk assessment is analyzing activities and
15
situations.
16
it or not, but identifying areas of potential risk
17
within an operation.
18
19
20
21
Q.
And, I don't know if they assign a value to
And how to address -- how to deal with
animals, right?
A.
After the assessment, that would be the
management of it.
22
Q.
Because that's important to safety?
23
A.
Of course.
24
Q.
So, if you would turn to the preceding page,
25
Page 18, 1704, the accreditation standards have Section
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11.4 and the risk management, right?
A.
Yes.
Q.
Do you see that?
A.
I do.
Q.
And you're familiar with that, right?
A.
Mostly.
Q.
Pardon me?
A.
Mostly, yes.
Q.
Mostly?
10
A.
Yes.
11
Q.
And, what it says is that member institutions
12
of the AZA are required to prepare a written risk
13
management policy, right?
14
A.
15
Q.
So, that's a requirement for accreditation,
16
right?
17
A.
Yes, it appears to be, yes.
18
Q.
But, I mean this is accreditation standards,
19
right?
20
A.
Yes.
21
Q.
And, the policy has to identify the area of
22
potential risk or harm to employees or visitors, right?
23
A.
Yes.
24
Q.
And, the policy has to identify the means by
25
which the potential risk or harm will be prevented,
CARLIN ASSOCIATES
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right?
A.
Okay.
Q.
Is that correct?
A.
Q.
So, under 11.4.1, accredited members are
required to have, it says, a plan, right?
A.
Okay.
Q.
Agreed?
A.
Yes.
10
Q.
Meaning a separate document or a separate
11
portion of a document, right?
12
A.
Okay.
13
Q.
Do you agree with what?
14
A.
I don't know if your
15
interpretation is what it means, that it has to have a
16
separate document.
17
management plan, you know, could be interpreted
18
differently by different people.
19
Q.
I don't think that.
It defines it.
The risk
The explanation of a risk
20
management plan is defined as a plan in which areas of
21
potential risk of injury/harm to the visiting public and
22
employees as well as ways of prevention of such
23
injuries/harm are identified.
Do you see that?
24
A.
I do.
25
Q.
So, that's what a risk management plan is,
CARLIN ASSOCIATES
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right, for the AZA?
A.
Yes, that's what it appears to be.
Q.
So, that would be a separate document or a
separate section of the document, right?
A.
I can't speak to that.
I don't know.
Q.
You don't know?
A.
Again, you know --
Q.
You're a member of the AZA, right?
A.
Of course, right.
I'm just saying they could
10
be interpreted differently.
11
you say, a section within a document, it could be a
12
stand-alone document, it could be a safety training
13
protocol.
14
they come to Sea World, I'm guessing they're looking
15
for, you know, the spirit of safety as much as the
16
written protocol you're talking about.
17
18
Q.
You know, it could be, like
I'm sure they're -- I don't know, but when
Again, with all due respect, Mr. Andrews, I'm
not asking for your guesses.
19
A.
Right.
20
Q.
I'm asking for your knowledge.
21
A.
Okay.
22
Q.
The plan has to be in writing.
23
That's
indisputable, right?
24
A.
It says that, yes.
25
Q.
And, it has to list or specify the potential
CARLIN ASSOCIATES
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risks of harm, right?
A.
Yes.
Q.
And, it has to list or specify the means to
prevent potential risks or harm, right?
A.
Yes.
Q.
And, the AZA risk management policy, that is
a very important tool, safety pool for its members,
right?
A.
Yes.
10
Q.
And, to prepare your report here, you didn't
11
review any written risk management policy for Sea
12
World's killer whales, right?
13
MS. GUNNIN:
14
question.
15
evaluated a risk management plan suggested by the AZA.
16
17
He has not given an opinion that he has
What he has given an opinion on are the protocols

of Sea World that are at issue in this case.
18
I don't know where Mr. Black is going to the
19
relevancy of risk management and accreditation by the
20
AZA.
21
that Sea World was an accredited institution by --
He was merely asked on Direct whether he is aware
22
JUDGE WELSCH:
23
MR. BLACK:
Thank you.
24
BY MR. BLACK:
25
Q.
I don't think I got an answer because of the
CARLIN ASSOCIATES
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objection.
To prepare your report here, you didn't
review any risk management policy for Sea World's killer
whales, right?
A.
Other than what was found in the documents
provided me, right, which did include safety protocols
and SOP's intended towards safety and staff development
intended towards safety in mitigating risk in terms of
working with killer whales.
I did review those things in the preparation
10
of my report and my testimony here today, but an
11
over-arching, all-inclusive Sea World risk management
12
plan, no, I did not.
13
Q.
And, in fact, you didn't review any documents
14
that explained what the risks or harms were posed by
15
Tilikum, for example?
16
A.
I thought we saw plenty of documents today
17
regarding the risks, the potential risks associated with
18
19
Q.
Now, you didn't see a written risk management
20
policy that covered the potential risks or harms of
21
Tilikum, right?
22
A.
Did we not look at several lines of verbiage
23
referring to the potential risks of, say, with Tilikum
24
and the incidents involved in '91 and '99?
25
Q.
What documents are you referring to, sir?
CARLIN ASSOCIATES
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1
2
3
A.
We've looked at a lot today, so I'm not sure
exactly which one that was.

Q.
If you could just refresh me a little bit,
I'm trying to understand what document you're talking
about.
6
7
8
9
A.
Again, I don't recall.
It might have been
his behavioral profile.

Q.
And what did it say?
Well, you think it's
the behavioral profile?
10
A.
Right.
11
Q.
What in his behavioral profile -- I'll hand
12
you Exhibit C-7, starting on Page 941, behavioral
13
profile, where does it identify the risks of working
14
with Tilikum?
15
A.
16
Here, it says on Page 0942:

"Please be advised that this whale was
17
involved in an accidental drowning of a trainer
18
at Sea Land of the Pacific in 1991 and involved
19
in an incident with a guest in its pool in 1999
20
at SWF."
21
22
Q.
So where does it say what the risk posed by
Tilikum is?
23
A.
Accidental drowning I would assume is a risk.
24
Q.
You're reading between the lines?
25
A.
No, I'm reading the actual words, "accidental
CARLIN ASSOCIATES
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1
2
3
drowning."
Q.
And it says this is a risk, accidental
drowning?
A.
It says accidental drowning.
Q.
It just says "accidental drowning."
It
doesn't say, "please be advised that Tilikum presents a
risk of accidental drowning"?
8
9
10
11
A.
It does say, "please be advised that this
animal, this whale was involved in an accidental

drowning."
Q.
And, what does that tell somebody looking at
12
that document and considering what Sea World has done to
13
deal with the risks presented of accidental drowning?
14
A.
Well, that tells the reader that the animal
15
was involved in the accidental drowning of somebody.
16
And, of course, the next line alludes to another
17
incident.
18
But, you know that everybody knows the risks
19
associated with Tilikum, and if we had to, I'm sure we
20
could look through the various elements of the protocols
21
that are directly related to Tilikum.
22
23
Q.
And, you realize that those protocols don't
say any which way --
24
A.
Right.
25
Q.
-- how the rules set out there address the
CARLIN ASSOCIATES
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1937
1
2
risks that Tilikum

A.
--
Maybe not in the specific way that you are
referring to as outlined in AZA's Accreditation Standard
11.4.1.
Q.
And, of course, you testified that it's
important to assess the risks of hazards and to talk
about how they're being addressed, right?
A.
Yes.
Q.
And, the AZA considers that so important that
10
it wants it in a policy that explains exactly what is
11
going on, correct?
12
13
14
A.
And, Sea World did assess the risks
associated with working with Tilikum, clearly.

Q.
Well, you say "clearly," but they certainly
15
didn't put it in a written risk management policy,
16
right?
17
A.
Not one that I know of off the top of my head
18
sitting here right now that I could present to you and
19
satisfy your inquiry.
20
Q.
And satisfy the AZA's inquiry, right?
21
A.
Again, it's open to interpretation.
22
Q.
You didn't see a written risk management
23
policy that covered the risks and harm posed by the
24
killer whales other than Tilikum, right?
25
A.
I read lots of safety protocols and
CARLIN ASSOCIATES
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1938
surrounding safe interactions with killer whales out of
the water and in the water.
physically could happen to you if you didn't follow
those standards?
Did they list what
I don't recall.
Q.
Or assess how it could happen?
A.
No, I don't recall seeing that.
Q.
So, as far as you know, Sea World failed to
prepare a written risk management policy prior to Ms.
Brancheau's death, right?
10
A.
I wouldn't agree with that.
11
Q.
As far as you know?
12
A.
I believe there's substantial information on
13
paper that does list the risks associated with working
14
with these animals and other documented and undocumented
15
practices for mitigating that risk.
16
17
Q.
But, it doesn't satisfy -- it's not a written
risk management policy?
18
A.
19
suited for me.
20
official.
21
Q.
Perhaps.
That question is probably not well
It probably should be to a Sea World
Now, Sea World's written and unwritten
22
protocols, those are designed to prevent aggressive
23
movement or aggressive actions by killer whales, right?
24
25
A.
That's part of it.
So, to prevent aggression
in the first place, but they also address what to do in
CARLIN ASSOCIATES
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the case of aggression, to minimize injury and further
risk once aggression does occur.
Q.
4
5
Let's switch gears here.

You're not aware of anything in the training
or safety protocols -- well, strike that.
You're not aware of anything in the written
document, the written safety documents that addresses
the difference between transient and resident killer
whales, are you?
10
A.
The written differences between them?
11
Q.
Something written.
12
A.
Something written that addresses the
13
difference between transients and residents?
14
Q.
From Sea World.
15
A.
From Sea World.
Well, I did not review any
16
documents like that for this case, but I have read
17
information provided by Sea World for trainers as they
18
developed in their careers through various information
19
sources that discuss the natural history of killer
20
whales, including the different, if you would,
21
subspecies or races of killer whales, including
22
Icelandic killer whales versus Pacific Northwest
23
resident killer whales versus transient killer whales,
24
and even the prologic killer whales.
25
Q.
You're not aware of any Sea World safety
CARLIN ASSOCIATES
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1940
protocols and rules that are written based on the type
of killer whales, transient versus resident?
3
4
A.
that, no.
5
6
I don't recall reading anything specific to
Q.
You don't have any reason to believe that
such a thing exists?
A.
I don't believe such a thing needs to exist.
Sea World has no transient killer whales in its
collection, and hasn't since Nuka died, and that would
10
have been in the late Eighties.
11
12
JUDGE WELSCH:
Mr. Black, can we take a
five-minute break?
13
MR. BLACK:
Certainly, Your Honor.
15
JUDGE WELSCH:
Let's take a five-minute break.
16
Be back at 25 'til.
14
Thank
you.
17
18
19
JUDGE WELSCH:
20
21
oath.
Also, Mr. Coe is not here, but in my discussions
22
with Mr. Coe, he certainly indicated we could proceed
23
without waiting for him.
In fact, he just came in.
24
25
MR. BLACK:
CARLIN ASSOCIATES
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1941
BY MR. BLACK:
Q.
Mr. Andrews, you would agree with me that
many of the incident reports that are in Exhibit C-6
involved instances where aggression resulted after a
trainer made an error?
A.
I would agree.
Q.
And, in fact, sometimes the errors have led
I've seen that happen, yes.
to some really terrible events, right?
A.
That's correct.
10
Q.
For example, in Loro Parque, trainer mistakes
11
led to the trainer's death, right?
12
A.
Yes.
13
Q.
And, there were things that were found that
14
were errors in other incidents that led to injuries as
15
well in other instances?
16
A.
Other incidents, certainly, yes.
17
Q.
And, you yourself were a trainer for a good
18
number of years?
19
A.
Yes.
20
Q.
And, in fact, there are several incident
21
reports that describe errors that you made as a trainer;
22
do you recall that?
23
A.
I recall the incidents.
I don't recall the
24
specifics in each incident, per se, on record or what
25
the mistake might have been, but if you want to remind
CARLIN ASSOCIATES
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1942
1
2
me, that would be fine.

Q.
Okay, well, I can and we will, but you don't
have any reason to -- I mean, those might have been
incident reports of greatest interest when you reviewed
them, right?
A.
Yes.
Q.
So, I'm on Page 335.
JUDGE WELSCH:
And it's?
For the record, you're still
talking about C-6?
10
MR. BLACK:
C-6, Your Honor.
11
THE WITNESS:
And you said 335?
12
MR. BLACK:
Yes, sir.
13
BY MR. BLACK:
14
Q.
Have you located Page 335?
15
A.
Yes, I have.
16
Q.
And, the trainer involved in that incident in
17
1992 was you, right?
18
A.
Yes.
19
Q.
And you were a senior trainer at the time?
20
A.
Correct.
21
Q.
And if you turn to Page 340 of that document?
22
A.
(Witness Complies).
23
Q.
It says:
24
25
Okay.
"Tongue tactile should not have been the

first reinforcer offered.
CARLIN ASSOCIATES
This didn't allow
(216) 226-8157
1943
enough time to effectively evaluate the whale's
demeanor."
Do you see that?
A.
I do.
Q.
Would you read the next sentence?
A.
"This also reflects a careless, too confident
approach to the whale from the trainer."
Q.
That's referring to you, right?
A.
It is.
10
Q.
In that incident report Sea World has
11
determined that you made an error due to a careless, too
12
confident approach?
13
A.
Yes.
14
Q.
And, if you would turn to Page 423?
15
A.
Okay.
16
Q.
And, again, you were a senior trainer in 1995
17
when the incident occurred, right?
18
A.
Yes.
19
Q.
And, then, if you would turn to Page 425?
20
A.
Okay.
21
Q.
It asked whether the acts of the employee
22
contributed to the accident.
23
right?
Then it says, "yes,"
24
A.
Okay.
25
Q.
And, then, it goes on to describe what acts
CARLIN ASSOCIATES
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of the trainer were contributory to the accident, right?
A.
Yes.
Q.
And, it was, in fact, trainer error, not only
error by you, but in this case, I think a communication
error partly between you and another trainer as well,
right?
A.
That's correct.
Q.
And, it was trainer error that were you
involved in?
10
A.
Yes.
11
Q.
And, then, if you would turn to Page 471,
12
this is also in 1995.
13
A.
Okay.
14
Q.
And, you were not the trainer involved, but
15
you were a trainer who was present, right?
16
A.
Yes.
17
Q.
And you were the assistant supervisor, right?
18
A.
It looks that way, yes.
19
Q.
And, if you would turn to the next page, to
20
472, it says that acts of employees had contributed to
21
this accident, right?
22
A.
Yes.
23
Q.
And, then, it describes what could have been
24
25
done to prevent the accident?

A.
Right.
CARLIN ASSOCIATES
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1945
Q.
And, it talks about how the whales, Orkid and
Takara, regularly do water work together in shows, and
that even though they do that criss-cross the perimeter
ride, had not been performing in the last couple weeks?
A.
Yes.
Q.
And, you were the supervising trainer on
stage when this occurred?
A.
I was.
Q.
So, in fact, the trainers themselves made
10
errors as well as potentially here's now an error in
11
supervision or an error by the supervisor in not
12
preventing the trainers from engaging in this sort of
13
act, right?
14
A.
Potentially, yes.
Notice that in each of
15
these incidents that we highlighted that the act of the
16
employee contributed to the accident, and that was more
17
or less -- not entirely but more or less a default
18
position that we had back then in order to make sure
19
that the trainers learned from all of these incidents
20
and it didn't attribute the incident to something
21
anomalous or something whale-based.
22
Right?
So, even if the trainer didn't make a mistake
23
in this particular interaction while out there with the
24
whale in this particular action, we would say to the
25
person, "You know, it might not have been what you're
CARLIN ASSOCIATES
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1946
doing now, but it might have had something to do with
what you did yesterday or the day before or the day
before."
Q.
But, in these three incidents we just looked
at, you would agree with me that there were errors made
by the trainers, right?
A.
According to the documents, yes.
Q.
I mean, these are the Sea World documents of
the incidents.
There were trainer errors made, right?
10
A.
Yes.
11
Q.
And, the trainer mistakes or errors, of
12
course, result in some sort of aggression behavior by
13
the whales.
14
because they hope to learn from their mistakes so that
15
mistake won't be made again?
16
A.
And, Sea World, you said they document this
Um-hum, but before we say "aggression," the
17
first incident that you brought up with me involved, I
18
would categorize that definitely as aggression.
19
Q.
I'm sorry?
20
A.
Yes, the first one I would categorize as
21
aggression.
I mean, if you recall --
22
Q.
You would?
23
A.
I would, yes, right.
24
25
An hour or two ago, I mentioned that there

were times where Sea World would err on the side of
CARLIN ASSOCIATES
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1947
caution and report incidents even if they might not have
been necessarily directed towards people or perhaps not
even aggression at all, but we would rather err on the
side of caution, so we would write some of these up.
So, in incident number one, of the three you
just highlighted, that would be aggression, and the
whale bit down on my arm and shook me back and forth.
8
9
The next incident, though, I'm not sure I

would classify that as aggression and more perhaps just
10
exploratory behavior.
11
remember it, but I would have to read it real quick to
12
remind myself what it was.
13
14
15
Q.
And, incident number three, I
Right?
So, what is it that I asked you that is
requiring you now take some time to read this?

A.
I'm just thinking that you mentioned that
16
each of the these three trainer errors led to
17
aggression, right?
18
been aggression, but we wrote them up anyway in the
19
interest of being cautious.
20
And they might not have actually
So, in this last incident right here -- now,
21
I'm going to have to read it to confirm my suspicions,
22
but if I remember right, the whales didn't exhibit any
23
aggression towards people, but I would have to read it
24
and you would have to give me a second.
25
swam off.
CARLIN ASSOCIATES
I believe he
(216) 226-8157
1948
Q.
Would you agree that the whales exhibited
behavior that even if it wasn't aggression, it was
something that concerned Sea World as something that
might be leading to aggression?
A.
Yes, or important enough that we needed to
write it up to make sure that people are aware of it, so
it doesn't occur again, even if it wasn't aggressive.
Right?
9
10
Q.
My time is limited, so I don't want to go
through that now.
11
A.
Okay.
12
Q.
Then, if you would turn to Page 585?
13
A.
(Witness Complies).
14
Q.
And, this an incident from 1997 with you
15
being the trainer involved, but now you're a supervisor,
16
right?
17
A.
Correct.
18
Q.
And, if you would turn to Page 4, it asks
19
whether the employee contributed to this incident.
20
you see that?
21
A.
Yes.
22
Q.
And, it says, "yes," and then it says under,
23
24
25
Do
"What could have been done to prevent it?"

It says, "Jeff could have prevented this
incident by not pressing Ulises frustration surrounding
CARLIN ASSOCIATES
(216) 226-8157
1949
predictable feeding situation"?
A.
Yes.
Q.
So, even as a supervisor, many years
experience, you're still making mistakes on occasion
that lead to aggression?
6
7
A.
And, look, it says, "yes," that employee's
act contributed to the incident.
Q.
Right.
A.
I can tell you that I wrote this up myself.
10
So, when it says, "Jeff could have," I was speaking in a
11
third person about myself, and that the other parties
12
there didn't believe it was aggression but I did.
13
Nonetheless, even though I was outnumbered, I felt it
14
was important enough still to write it up as aggression
15
even if it wasn't.
16
Q.
I wrote myself up.
You wrote yourself up because there was a
17
concern that your mistake might have led to something
18
that may have been aggression or might have led to
19
aggression?
20
A.
Or, you know, maybe not led to it but I
21
didn't want to -- if I was right, I certainly didn't
22
want to put someone in that same situation again.
23
So, by writing it up, it communicates to the
24
team what had happened, and people can learn from it,
25
and when they find themselves in a similar scenario in
CARLIN ASSOCIATES
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1950
the future, they can set themselves up for success to
avoid a similar scenario occurring again.
Q.
I understand.
We've heard lots of testimony,
judging what's a similar scenario is a very subjective
kind of determination, right?
A.
It is subjective, absolutely, yes.
Q.
So, the guidance provided to a trainer
knowing the next time around how to avoid the mistake is
in a sense rather vague?
10
A.
Or a similar mistake.
11
Q.
So, the incident report provides some
12
usefulness to a trainer, but it doesn't really tell the
13
trainer how absolutely to avoid aggression based on the
14
way that -- it doesn't give the learning lesson there
15
that expands so that the trainer has enough guidance to
16
know how to avoid it?
17
A.
It gives the trainer a lot of information and
18
a very strong and important tool for learning, first of
19
all.
20
of learning.
21
every single one of them.
22
associated with this one, again, like we were talking
23
earlier, you can't equate exactly to the next time.
24
can't check off the list.
25
right, because it will be different.
So, it's not a little bit of learning, it's a lot

Right?
And every scenario is different,

Right?
So, the learning
Don't do this next time,
CARLIN ASSOCIATES
(216) 226-8157
You
1951
Now, the additional training that occurs
beyond the learning value of this document, the hands-on
training is what you're referring to, right?
just talks about the past incident and gives some people
some additional familiarity for moving forward, but it's
all the staff training and mentoring that really teaches
the people not to find themselves in that situation
again.
Q.
So, this
But, mentoring and training occurs and, yet,
10
we still find that trainers make mistakes despite the
11
mentoring?
12
A.
Humans make mistakes.
13
Q.
So, these mistakes sometimes, in fact, still
14
lead to a chain of events that have consequences that
15
Sea World doesn't want to have happen?
16
A.
They can and the whales are actually trained
17
to tolerate human mistakes and whale mistakes, and the
18
dozens upon dozens upon dozens of similar events where
19
no incident occurred, aren't documented.
20
Right?
So, we document these or Sea World documents
21
these, but that training that we're referring to and
22
that mentoring that we're referring to produces
23
desirable results in literally tens of thousands of
24
interactions every year that we don't write up.
25
Q.
I understand.
CARLIN ASSOCIATES
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1952
1
2
3
A.
That book would be much heavier than this
Q.
I understand that, but Sea World doesn't, in
one.
fact, keep track in any systematic way of all the errors
that trainers make in their training.
up "trainer made an error," even if it didn't lead to
aggression or whatever, but "here's an error."
A.
Every error?
log somewhere?
They don't write
Do they actually put it in a
10
Q.
Right.
11
A.
No, not that I know of.
12
Q.
So, Sea World doesn't have any way to say
13
that there were 1,312 errors and only three of them led
14
to aggression, right?
15
A.
Sea World does a pretty remarkable job of
16
collecting data in regards to their animal training
17
program.
18
Q.
But not that data?
19
A.
But, not that data.
20
nonpragmatic.
21
collect that kind of data.
22
Q.
Right?
That seems a little
It almost seems restrictive to try to
Well, that is, in fact, one of the things
23
that one might critique with the Sea World program; that
24
it relies in large part on trainers doing the right
25
thing and making the right decisions, right?
CARLIN ASSOCIATES
(216) 226-8157
1953
A.
Absolutely.
Q.
So, it would be very useful to know how often
trainers make mistakes, and it would be very useful to
know what percentage of those mistakes lead to something
-- a bad outcome?
A.
And, on that list, I can put 20 or 30 other
types of data sets that I would like to have and use,
but you triage what is the most important thing, and you
collect that type of data to be useful for you, and what
10
Sea World has triaged at the top of their list would be
11
this type of data, the incident reports, the critical
12
data from training records and the animal profile data
13
as being more useful of their limited time.
14
15
16
Q.
More useful of the limited time even though
the consequences of mistakes could be tragic?

A.
And, when those types of -- when mistakes are
17
made that are more potentially serious, they get put in
18
this log.
19
20
Q.
Let me hand you Exhibit C-1.
C-1 is the
animal training SOP at Orlando, right?
21
A.
Yes.
22
Q.
And, if you would, Mr. Andrews, turn to Page
23
24
25
1099 in that document?

A.
sorry.
(Witness Complies).
I have 1099.
I have 1069.
CARLIN ASSOCIATES
(216) 226-8157
Wait, no,
1954
Q.
Are you at that page?
A.
I am.
Q.
This is the beginning of the Tilikum chapter
in the SOP, right?
A.
Yes.
Q.
And, it goes on to page, if I not mistaken,
1107, the Tilikum chapter; is that right?
Nine pages?
A.
Sounds right.
Q.
And, these are among those 47 pages in your
10
count of Tilikum rules, right?
11
A.
They would be.
12
Q.
And, where in these rules does it indicate
13
for these guidelines the purpose of these guidelines?
14
A.
The fact that you're asking the question, I
15
would probably save us time by me reading through them
16
all to find the purpose.
17
18
Q.
I can represent to you that I didn't find it,
but I don't want to preclude you from looking.
19
A.
I figured, right.
And, the purpose, of
20
course, would not only be implied, but also verbally
21
communicated on a daily basis, not limited to the Tili
22
Talk, not limited to the animal profile that discusses
23
the incidents in '91 and `99.
24
this would know what the purpose of this document would
25
be.
CARLIN ASSOCIATES
I think the reader of
(216) 226-8157
1955
Q.
And, I did find one place where it seems to
indicate a purpose.
That's on Page 1100.
where it says, "The purpose of the emergency action
plan, Tilikum involvement, rescue procedures"?
A.
Yes.
Q.
And, it states the purpose.
7
8
9
Do you see
What is that
purpose that it states there?

A.
"This plan is to aid trainers to effectively
respond to any injury or emergency situation in
10
which trainers, guests or nondepartment personnel
11
fall or otherwise enter the water with Tilikum
12
without authorization."
13
Q.
Okay, so this procedures contemplates the
14
possibility that somebody might end up in the water with
15
Tilikum?
16
A.
Yes, it looks that way.
17
Q.
But, I don't see any other rules here that in
18
any way speak to their purposes.
19
A.
Okay.
20
Q.
Can you tell me, for example, if you would
21
turn to Page 1099, Rule Number 5, or General Guideline
22
Number 5 on the first page of this document?
23
A.
Okay.
24
Q.
Just for the record it says:
25
"Any interaction with Tilikum occurring from
CARLIN ASSOCIATES
(216) 226-8157
1956
the back stage island requires that a tactile
team member with an approved nontactile team
member or above spotter, both must stay
positioned behind bars and both must be wearing
wet suits.
cross legs over back stage bars at any time."
7
8
9
Control trainer may not
What is the purpose of this rule?

A.
I did not write that rule, but I would assume
that it is written to increase safety in working with
10
Tilikum in what they considered, somebody considered to
11
be a more vulnerable location.
12
13
14
Q.
And, what is the risk that this rule seeks to
deal with?
A.
I don't know.
I don't know if that
15
particular area of the facility -- and I'm not the right
16
person to ask, honestly -- but I would be assuming what
17
the purpose is.
18
exposed, maybe it's slippery; I don't know.
Maybe that area of the facility is more
19
Q.
You don't know?
20
A.
I don't know.
21
Q.
But, you reviewed these Tilikum rules and
22
gave an opinion that the Tilikum rules provided a high
23
level of safety?
24
25
A.
Right, and there's one that is specifically
intended to increase safety.
CARLIN ASSOCIATES
(216) 226-8157
1957
Q.
Well, you don't know the purpose of it?
A.
Nonetheless.
Q.
I mean, you just said you don't know the
purpose of it.
dangerous location.
You would be guessing perhaps it's a

I don't know?
A.
Okay.
Q.
Am I mischaracterizing your testimony?
A.
No, I think I just said, I don't know the
purpose for that particular rule; why it was decided to
10
create a protocol where the person had to have a spotter
11
right there or couldn't cross their legs over the bars.
12
I do not know.
13
Q.
And, so it may well have been that the reason
14
was to prevent trainers from being pulled into the
15
water?
16
A.
It could have been; yes, it could have.
It
17
could have been a pinching hazard, it could have been
18
maybe there's an actuated gate right there that could be
19
dangerous; honestly, I don't know.
20
Q.
So you don't have any idea how that rule
21
increases trainer safety.
You just know that that rule
22
is a rule that Sea World has?
23
A.
Yes.
24
Q.
If you would turn to Page 1101, I just want
25
to ask a similar question.
I'm looking at the bottom of
CARLIN ASSOCIATES
(216) 226-8157
1958
Page 1101, under (c) Interaction Guidelines, and I'm
looking at Rule 1(c) that says, "Interaction," and this
is referring to fish toss, visual play, and such in the
A and G pool.
behind pool or behind glass?
It must occur from at least five feet
A.
Right.
Q.
So that means that the interaction has to
occur with a barrier in place, right?
A.
Yes.
10
Q.
You would agree that the pool walls are the
11
12
glass?
A.
The glass would be a barrier, the pool wall
13
and the space behind them would be an area for egress;
14
but, yes, that would be to provide additional safety
15
proactively, indicating that Sea World is actively
16
trying to make it a safer work environment.
17
18
Q.
So, now, the trainer has to be either behind
glass or at least five feet behind the pool wall, right?
19
A.
Yes.
20
Q.
And, in having to be there, that provides
21
22
safety against what risk?

A.
I would assume because the way the whale has
23
a physical potential of coming up out of the water at
24
least partially if not entirely, but I'm not sure about
25
that exact situation or area of the facility.
CARLIN ASSOCIATES
(216) 226-8157
1959
And animals can either strike you or pull you
in the water.
despite the fact that Tilikum never behaved in that way,
they're still aware of the potential for him doing that
and providing safety guidelines and protocols to prevent
that type of injury.
Q.
They have that potential, right?
And so
But, you don't know what it is that they were
seeking to prevent with this, but you are willing to say
that it maybe had something to do with a whale pulling
10
somebody in?
11
12
A.
That or potentially, you know, making
physical contact in such a way that injured a person.
13
Q.
And, the rules go on, but I don't see any --
14
can you please take as much time as you want -- that
15
explain the purpose of any of these particular rules?
16
A.
Well, I think we've already discussed that.
17
Q.
Other than the one, the emergency action
A.
Right, but we've already discussed that I
18
19
plan?
20
felt that it was due to the culture in the area around
21
Tilikum; that in addition to the other things we saw
22
written elsewhere as opposed to the beginning of Page
23
1099, explicitly at the top, it says, the purpose of
24
this next section is to do this; that the purpose is
25
found elsewhere, and the purpose is culturally abundant
CARLIN ASSOCIATES
(216) 226-8157
1960
in the area, so it's implied that they're trying to
provide safety around Tilikum.
Q.
Well, I understand it may be implied that
they're trying to provide safety around Tilikum; and,
yet, they don't explain how that's providing safety.
They don't explain what risk that rule addresses, right?
You would agree with that statement, wouldn't you?
A.
It's right there.
Q.
You would agree with my statement that the
10
rules right there don't indicate the purpose other than
11
as to emergency action?
12
A.
Right, I don't see it written here except for
13
what you said, you know, B-1, but it would be naive to
14
think that the reader of this didn't understand what the
15
purpose was.
16
Q.
Well, the purpose, you mean the general
17
purpose is safety, but beyond that, the purpose is
18
anybody's guess; is that a fair statement?
19
A.
That it's anybody's guess?
20
Q.
Yes.
You know, you've been speculating what
21
the purpose of the rule is, but you're not quite
22
certain, right?
23
A.
I would say it's -- again, I'm probably not
24
the right person to ask.
Probably the right person to
25
ask would have been one of the trainers from Shamu
CARLIN ASSOCIATES
(216) 226-8157
1961
Stadium sitting here and ask them, you know, what is the
purpose here?
somebody that does not work for Sea World trying to
answer that question.
Q.
Right?
And, then you wouldn't have
I understand that, but you're the witness I'm
asking the questions of right now, and as that witness,
you gave an expert opinion that Sea World had discovered
47 pages of written safety regulations specific to
Tilikum, and they have all of these rules, and these
10
rules provide greater safety in working with Tilikum,
11
right?
12
A.
Correct.
13
Q.
But, now, you can't tell me that we can look
14
at any particular rule and you can't tell me what the
15
purpose is other than safety?
16
17
18
A.
I can't confirm for you that it's -- I can't
tell you something that I can't find here.

Q.
Tell me any rule in there that would prohibit
19
somebody such as Ms. Brancheau from lying down face to
20
face with Tilikum in six to eight inches of water to
21
prevent the possibility that he, as you said, like all
22
whales, might pull her in?
23
24
25
A.
I don't believe there was a rule prohibiting
such action.
Q.
Despite the fact that whales sometimes can
CARLIN ASSOCIATES
(216) 226-8157
1962
pull things in, pull people in?
A.
Despite that, yes.
Q.
You would agree with me that a barrier or
wall or distance provides a greater degree of safety or
protection to trainers as against being pulled in or
falling into a pool with the whale?
A.
Pulled in or falling in, certainly, distance
would.
I'm not so sure about a barrier providing that
type of increased safety but probably, of course.
And,
10
if you construct an impermeable barrier around the pool,
11
right?
12
Q.
If you had difficulty in constructing such a
13
barrier, then an alternative would be to stay far enough
14
back?
15
A.
Yes.
I don't know of a feasible means of
16
doing that, right, and nothing like what currently
17
exists.
Right?
18
Q.
A feasible means --
19
A.
Nothing like that has been engineered, right,
20
21
and it doesn't exist currently.

Q.
So, you can't think of a feasible means to
22
design a barrier, but you can say that staying further
23
back from the pool would be one way that one could
24
prevent being struck by or being pulled into the pool,
25
right?
CARLIN ASSOCIATES
(216) 226-8157
1963
1
2
3
A.
Well, it's sort of intuitive, right?
don't get in the car, you can't get in a car crash.

Q.
Well, I know, but we're not talking about
cars and car crashes here.
whales.
6
7
8
9
If you
A.
We're talking about killer
But, I just made an analogy that I think is
relevant.
Q.
Sea World can still train its whale from a
distance?
10
A.
11
Q.
They do so with Tilikum, right?
12
A.
You can train animals from a distance, yes.
13
Can you train them to do what you need them to do?
14
as well.
15
Q.
Not
Not as well and it might be better to train
16
them perhaps if you were right up next to the whales all
17
the time, that might be a more effective training
18
protocol or program, right?
19
A.
If you were next to them all the time?
20
Q.
Yes.
21
A.
That would help.
22
Q.
So, I mean, it might be useful even given the
23
relationship of trainers to the whales, I don't know, to
24
spend even more time with the whales than Sea World
25
spends with them?
CARLIN ASSOCIATES
(216) 226-8157
1964
A.
More time with the whales in greater
proximity would be helpful.
Duffus said that he assumed that that type of additional
contact and frequent contact would increase
predictability.
Q.
You know, even as Professor
I agree with that.
Of course, that was the opposite conclusion
of what the AZA decided or concluded as to evidence in
interacting with elephants, right?
A.
They're not comparable situations.
10
Q.
You said animals are the same; training is
11
12
the same with animals?

A.
The training of the animals is the same.
The
13
physical and political and demographic situation is
14
entirely different.
15
of elephants with a wider disparity of abilities and
16
resource allocation in the elephant business and a
17
greater variety of management styles in the elephant
18
business than with the standards set by Sea World with
19
its killer whales.
20
Q.
There are a great many more holders
And, I assume that what you're saying is that
21
some of those holders of elephants don't practice
22
positive reinforcement operant conditioning?
23
A.
Some do not, right.
And, there are many
24
different ways that elephants are managed and trained,
25
right, throughout the States.
CARLIN ASSOCIATES
(216) 226-8157
1965
Q.
And, I'm just asking whether some don't --
I'm not asking for you to tell me about all the
different ways.
positive-based, trust-based operant conditioning, right?
I asked you, some don't practice that
A.
Yes.
Q.
And, so part of your opinion is that the
positive reinforcement operant conditioning perhaps
provides a safer setting in elephant care, right?
A.
I do believe that, yes.
10
Q.
And, yet, despite your opinion, the Board of
11
Directors at the AZA for all facilities maintaining
12
elephants, whatever type of animal training they
13
provide, said that they need to stop having an
14
unrestricted contact with elephants by September of
15
2014?
16
A.
Yes.
17
Q.
Now, earlier, I think you indicated that Sea
18
World didn't see predatory behavior by the animals, the
19
killer whales, very often?
20
A.
Directed towards people.
21
Q.
Directed towards people.
And, that was
22
because the whales were fed sufficient food; that the
23
whales didn't need to engage in predatory behavior?
24
25
A.
I believe that that's the reason, yes; that
their nutritional needs were met.
CARLIN ASSOCIATES
(216) 226-8157
1966
1
2
Q.
And, yet, you know that many of the whales at
San Diego engaged in what was known as gulling, right?
A.
Define "many."
Q.
Well, you know that at least one or two were
5
6
engaged in that type of behavior?

A.
I'm aware of that, yes.
I've never heard it
referred to as gulling before, by the way, but I
understand what you're talking.
Q.
In other words, the whale, one or more whales
10
there, would actually catch seagulls and kill them,
11
right?
12
A.
Yes.
13
Q.
And, the killer whale, Orkid, would not only
14
15
16
catch and kill them, but he would sometimes eat them?

A.
I don't recall him ever eating seagulls,
honestly, but he would catch them, yes.
17
Q.
18
JUDGE WELSCH:
Did you say seagulls?
19
MR. BLACK:
Seagulls, yes, sir.
20
BY MR. BLACK:
21
Q.
22
If you would turn to page --
I'm sorry, if you would turn to Page 561 of
Exhibit C-6.
23
A.
(Witness Complies).
24
Q.
And, this is an incident involving killer
25
whale, Orkid, right?
CARLIN ASSOCIATES
(216) 226-8157
1967
A.
Yes.
Q.
And on Page 562, it says at the top under
"observed social interaction or behavioral precursors,"
it says, "Orkid and Splash were sharing parts of a
seagull out in A pool minutes prior to the separation of
Orkid to E Pool for session," right?
A.
Yes, I see that.
Q.
So, you know that or now you know, at least,
from this incident report that the whales sometimes, at
10
least on one occasion, if not more, ate the gulls,
11
right?
12
A.
That's what it says there.
13
Q.
I'm sorry?
14
A.
I don't see it saying that she was eating the
15
seagull; that either of them were eating the seagull.
16
Q.
If you would turn to Page 566, this is
17
comments from Chuck Tomkins, right, at the top of the
18
page for the fax from Mr. Tompkins?
19
A.
That's a fax, yes, I see it.
20
Q.
From Mr. Tompkins?
21
A.
It came from his fax machine, okay.
22
Q.
Presumably, it came from Mr. Tompkins in
23
1996.
He was the curator, right?
24
A.
Presumably, yes.
25
Q.
And, he comments on the Orkid incident, and
CARLIN ASSOCIATES
(216) 226-8157
1968
in the second paragraph, he starts talking about Orkid
sharing seagull parts with Splash in the performance
pool, right?
A.
Right.
Q.
And, he also indicates, he says, "We've had
first-hand experience with this involving Taima," right?
A.
Right.
Q.
Taima is a whale that was at Sea World of
Florida, right?
10
A.
Yes.
11
Q.
In fact, he's indicating that there has been
12
gulling, as I call it, at Florida, right?
13
A.
Yes.
14
Q.
And, the last sentence of the that second
15
paragraph, beginning with "realizing," could you read
16
that sentence?
17
A.
Yes.
"Realizing that your gull season is
18
longer and that your whales actually eat the
19
birds, your policy may be different."
20
Q.
And, then, would you read the remainder of
21
that sentence?
22
A.
Okay, "Your policy may be different, but we
23
feel that the potential correlation between
24
predator and behavior and aggression directed
25
towards trainers should not be ignored."
CARLIN ASSOCIATES
(216) 226-8157
1969
Q.
So, in other words, what Mr. Tompkins is
saying is the fact that the whales are engaging in
gulling is predatory behavior, right?
A.
Yes.
Q.
And, he's saying that that could have a
connection with aggression towards trainers, right?
A.
It could.
that.
part, but perhaps.
10
11
12
We certainly couldn't overlook
I'm not sure I agree with the "eat" the birds
Q.
You don't agree that that's what he wrote and
indicated occurs?
A.
No, I agree that that's what he wrote, but
13
I'm not -- he wasn't in Florida or, excuse me, in San
14
Diego; he was in Florida.
15
that the animals weren't actually eating the birds.
16
They might have, you know, consumed parts of them.
17
Q.
And, just my recollection is
Whether they were eating the birds as a meal
18
or just killing them, you would agree that that's still
19
predatory behavior?
20
A.
Yes.
21
Q.
It's hunting type behavior, right?
22
A.
It is.
23
Q.
And, despite having all their caloric needs
24
25
met, they still engaged in hunting type behavior?

A.
Yes, it was probably entertainment, honestly.
CARLIN ASSOCIATES
(216) 226-8157
1970
They were probably having fun, honestly.
Q.
I appreciate your opinion as to what's going
on in the whale's mind again, but I didn't ask you a
question about their mental state.
description of the behavior.
I asked for a
A.
Nonetheless, that's my opinion though.
Q.
But you would agree that it's predatory
behavior?
A.
Yes.
10
Q.
You gave some testimony about the Loro Parque
11
incident involving Alexis Martinez and the killer whale
12
Keto?
13
A.
Yes.
14
Q.
Do you recall that?
15
A.
Yes.
16
Q.
And, your analysis was that this was
17
exceptionally unlikely because it was a series of
18
mistakes, right?
19
A.
That's correct.
20
Q.
And, then, you gave the opinion that this
21
never would have occurred at Sea World of Florida,
22
right?
23
A.
If that's the word I chose, then, yes.
24
Q.
Okay.
25
A.
Perhaps "never" is too strong a word.
CARLIN ASSOCIATES
(216) 226-8157
1971
Q.
Because trainers even at Sea World of Florida
make mistakes?
A.
Yes.
Q.
And, in fact, your opinion was speculation
that these mistakes would not have occurred at Sea World
of Florida, right?
7
8
9
A.
Yes, I believe that's what I said, or would
not likely have occurred.

Q.
Yes, that you didn't think it would occur,
10
but you couldn't say for certain that these were not
11
mistakes that could have occurred at Sea World of
12
Florida, right?
13
A.
Anything can happen.
14
Q.
Well, not just anything can happen.
You have
15
no way of knowing that, in fact, it would not have
16
happened in the same exact way in Florida?
17
A.
I just find it highly unlikely.
18
Q.
I understand you find it highly unlikely.
19
You find it highly unlikely because you think that Sea
20
World of Florida is a safe place?
21
A.
And, I find that the level of skill and
22
experience at Sea World of Florida highly surpasses that
23
of Loro Parque.
24
25
Q.
Now, when was the first time that you went to
Loro Parque?
CARLIN ASSOCIATES
(216) 226-8157
1972
A.
I have never been there.
Q.
When was the first time that you evaluated
Loro Parque's safety program?
A.
Only through that incident report and
discussions with Counsel and Chuck Tompkins, and in more
recent months with Ms. Flaherty Clark.
Q.
So, they told you what they thought you
needed to know to be able to come to that conclusion
that Loro Parque was substandard?
10
A.
I made that assumption on my own, right?
11
But, I did ask, what is the skill and experience level
12
of the people that are working there.
13
Q.
What did you learn?
14
A.
That they didn't have the same level of skill
15
and experience and mentoring that the Sea World teams
16
have.
17
Q.
Who told you and what did they tell you?
18
A.
Oh, gosh, I don't recall those conversations
19
right now, but whatever information they gave me led me
20
to believe that they didn't have the same level of skill
21
and experience that I know to occur in the Sea World
22
Parks.
23
Q.
So, you had some conversations, you don't
24
have notes of them, so we should just trust you in your
25
opinion that they weren't experienced enough based on
CARLIN ASSOCIATES
(216) 226-8157
1973
your conversations?
A.
I suppose so, yes.
Q.
Now, before February 24, 2010, do you
understand that Tilikum had had five days of medication
injections in the med pool in February?
A.
Yes.
MS. GUNNIN:
that testimony.
opinions about any -- Mr. Black is going into medical
10
11
12
13
14
15
I don't know that he's offering
procedures and their effects on killer whales.

Mr. Andrews is not qualified to render a medical
or veterinarian's opinion about that.
MR. BLACK:
He has, Your Honor, rendered an
opinion on causes of aggression.

JUDGE WELSCH:
16
don't think that's where he was going with that
17
question.
18
Go ahead.
19
BY MR. BLACK:
20
Q.
21
And, you know that he was on medication on
February 15th, February 17th the 22nd?
22
A.
I recall reviewing that, yes.
23
Q.
That was in those monthly recaps?
24
A.
Yes.
25
Q.
Did you review the medical records?
CARLIN ASSOCIATES
(216) 226-8157
1974
1
2
3
A.
I didn't review the medical records, the
veterinary medical records, no.

Q.
And, you know that Tilikum hadn't
participated -- in the way Sea World defines it, hadn't
participated in any show after January 20th, right?
A.
Yes.
Q.
And, normally, up until that point, he was an
animal who had participated in shows routinely?
A.
Yes.
10
Q.
And, you know that there was pool
11
construction going on was one of the reasons or maybe
12
the reason why he couldn't participate in shows, right?
13
A.
Yes.
14
Q.
And, you know that he spent ten days at the
15
end of January, exclusively in G pool, right?
16
A.
Yes.
17
Q.
And, you know that he had limited access to
18
the other whales during that time as well?
19
A.
Yes.
20
Q.
And, these all fall under the realm of
21
potential causes or precursors to aggressive behavior by
22
a whale in general?
23
24
25
A.
No, I don't see any of those falling under
the causes of aggression in a killer whale.

Q.
Well, you know that there were many -- there
CARLIN ASSOCIATES
(216) 226-8157
1975
are incident reports, I won't see many, but there are
incident reports that use that as health condition and
medical procedures as part of a precursor to aggression
or cause of aggression, right?
A.
It can be, right.
Q.
And, certainly, a change in not being allowed
to participate in the Shamu Stadium big pool shows for
over a month, that, of course, could be a significant
change for Tilikum, right?
10
A.
That may or may not be a change for Tilikum,
11
and that may or may not be any cause of aggression,
12
depending on how it was handled by the staff.
13
14
15
Q.
Right, it might or it might not be, but here
it was a change for Tilikum, right?

A.
I don't know if he had encountered -- I don't
16
recall if he had encountered similar types of pool
17
restrictions in his past, but I would have to assume
18
that he had in his past lived in a similar scenario for
19
a period of time, probably more than once or twice in
20
the years prior to where pools were undergoing some sort
21
of change, some sort of construction, the birth of
22
calves, other whales being sick.
23
that a whale, whether it's Tilikum or whoever might have
24
restricted movements in the pool for an extended period
25
of time.
It's pretty common
It's not uncommon.
CARLIN ASSOCIATES
(216) 226-8157
1976
1
2
3
4
5
Q.
It's not uncommon, but it is something that
could attribute to the whale not being -A.
It could.
I wouldn't expect it, but it
could.
Q.
And, being in isolation in a particular pool
without other whales for a period of time, in fact, is
something that could cause a whale to, if I may use the
term, get upset or not --
A.
And, I wouldn't say that, but I would say
10
behaving differently, right, and, again, how it's
11
handled is what is important here, and I have every
12
faith in the world that the Sea World trainers handled
13
those situations appropriately.
14
Q.
I know you do but in your opinions about what
15
was going on prior to February 24th of 2010, your report
16
doesn't discuss these factors and how they might have
17
played into what Sea World should or shouldn't have
18
recognized as far as safety?
19
A.
I looked into them and I discounted them.
20
didn't think they were that relevant because I have
21
encountered the same types of situations many, many
22
times in not only my killer whale career but with other
23
animals as well.
24
Animals are on meds pretty frequently, just as we are,
25
and you learn how to deal with it.
Things like that happen frequently.
CARLIN ASSOCIATES
(216) 226-8157
1977
Q.
So, an incident report that discusses meds or
pool construction or limited social access to other
whales as a cause of an incident, you would consider
that incident report not to be of any use?
A.
I'm not saying that.
I'm saying that those
incidents may have -- those types of situations may have
been relevant to these incidents, but it doesn't mean,
just like our laundry list behind me on the wall here,
doesn't mean it's relevant to every scenario.
So, it's
10
not just because it's happened once before with another
11
whale, from here on forward it's not considered a
12
precursor for every whale in every scenario.
13
Q.
I understand.
What I don't understand is
14
what your analysis was of these factors and why you
15
decided, you made a determination that these didn't
16
present some sort of increased risk to Sea World
17
trainers working with Tilikum and specifically to Ms.
18
Brancheau on February 24th, lying down next to Tilikum.
19
A.
Well, lying down next to Tilikum was a very,
20
very common thing for her and other trainers to do.
21
That was a normal thing.
22
23
24
25
Q.
I understand but now I'm talking about the
factors that -A.
And, even after factors like that, again,
those things are relatively common, and in my assessment
CARLIN ASSOCIATES
(216) 226-8157
1978
of those types of events happening, you know, a couple
of weeks prior and a couple of months prior as not being
relevant to the incident of February 24th.
Q.
But, they're fairly common.
I mean, for all
you know, it's fairly common that trainers' hair floated
in the water with Tilikum, right?
A.
I don't know that to be common.
Q.
You don't know one way or another, right?
A.
I wasn't there for the years prior to this
10
event.
11
Q.
So, you don't know that to be common?
12
A.
But, I did inquire about that and
13
learned information about how often, if ever,
14
he had hair floating out into his face in a similar
15
scenario, and what type of desense had been done in that
16
type of scenario, and particular scenarios are
17
important.
18
Q.
Right, because if it doesn't happen in
19
exactly the same way as it happened the last time, then
20
something new could happen?
21
22
23
A.
Similar ways, similar scenarios are
important.
Q.
And, so the mistakes that Sea World learns
24
from, its trainers learn from the mistakes may not teach
25
them how to interact next time in a situation that has
CARLIN ASSOCIATES
(216) 226-8157
1979
slightly different environments?
A.
I believe it does.
It teaches them a great
deal, right, but the next scenario will be a little
different.
Q.
So, they may make a slightly different
statement because it's a slightly different scenario,
right?
8
9
A.
Down the road, a year or two later and
in the recent case of Sea World, it was from 2006 to
10
February of 2010 without a scenario.
11
fewer and fewer mistakes are made.
12
root precursors are avoided and prevented over time,
13
right.
14
15
Q.
So, down the road
The root causes and
Without a scenario, you mean without a
reported scenario?
16
A.
Again, years and years go by with successful
17
learning occurring and successful occurrences of
18
interactions occurring, based on previous learning.
19
So, these reports and the causes of that
20
incident does teach them how to behave, right, in
21
similar scenarios.
22
that.
23
24
25
It does.
Right?
And you can see
Right.
Q.
No, I don't agree with each of your
"rights."
A.
Right, yes.
Well, I'm saying that it does.
CARLIN ASSOCIATES
(216) 226-8157
1980
The trend has gone down, right?
They are
having fewer incidents, right, and an increased
frequency between incidents, right, over time.
Q.
I understand your opinion that it has
decreased based on what you read in the reports, but if
I might, I don't understand you to know, for example,
whether there might not be unreported incidents, whether
incidents that have occurred at San Diego or at Texas
still shows that, in fact, mistakes are still occurring
10
with trainers up until February 23, 2010.
11
Do you think that because no mistake
12
happened, suddenly no mistake can happen?
Is that what
13
you're saying?
14
A.
So, I need you to ask me a question.
15
Q.
Do you think that because no mistake has
16
happened for three years or whatever, that now we've
17
fixed it so trainers will not make mistakes again?
18
19
20
21
A.
No, humans make errors, but notice that they
are making fewer similar errors.

MR. BLACK:
Thank you, Mr. Andrews.
No
further questions.
22
JUDGE WELSCH:
Ms. Gunnin?
23
MS. GUNNIN:
Yes, I have a brief Redirect.
24
JUDGE WELSCH:
Do you want to take a couple
25
minutes?
CARLIN ASSOCIATES
(216) 226-8157
1981
MS. GUNNIN:
been going for awhile.
JUDGE WELSCH:
That may be a good idea.
We have
Let's take 5 minutes.
JUDGE WELSCH:
Mr. Andrews, I will remind you you're still under
oath.
THE WITNESS:
Yes, Your Honor.
10
JUDGE WELSCH:
Ms. Gunnin?
11
MS. GUNNIN:
Judge, I have a pleasant surprise
12
for everyone.
13
14
JUDGE WELSCH:
No questions?
15
MS. GUNNIN:
No questions.
16
JUDGE WELSCH:
I guess you're excused.
17
you very much.
18
THE WITNESS:
19
JUDGE WELSCH:
24
25
Does Sea World have any further
witnesses to call?
22
23
Thank you, sir.

(Witness Excused)
20
21
Thank
MS. GUNNIN:
No, Your Honor, we do not.
JUDGE WELSCH:
Does the Secretary have any
rest.
rebuttal?
CARLIN ASSOCIATES
(216) 226-8157
We
1982
MR. BLACK:
We have no rebuttal.
JUDGE WELSCH:
little bit of housekeeping.
the record in this case is closed.
Let's do a
The evidentiary portion of
According to my records, the Secretary has 16
exhibits, C-1 through C-16, all of which have been
admitted into evidence.
8
9
10
11
Respondent Sea World has six exhibits identified,

R-1 through R-6, all of which have been admitted into
evidence.
I realize this has been a lengthy hearing.
This
12
is day nine, I guess.
13
this case has ended, I will allow the Court Reporter as
14
she finishes portions of the transcript or days or
15
however she wants to do it, she can go ahead and start
16
releasing those to the parties if the parts request the
17
transcript.
18
Since the evidentiary part of
Once I receive the last day of the transcript,
19
meaning today's transcript, I will issue an order
20
setting a briefing schedule of approximately 45 days
21
from the date of receipt of the transcript.
22
will set a specific date, but it will approximately
23
45 days from that point for the parties to file their
24
briefs in this matter.
25
My order
If the parties have some problem in meeting that
CARLIN ASSOCIATES
(216) 226-8157
1983
45-day time limit, I just ask that you confer -- and I
recognize this has been nine days, fairly long days --
as long as you're asking for a reasonable amount of
time, I have no problem and hopefully both parties can
agree on an extension and just file or call my office
asking for an extension that both parties agree on, and
as long as it's reasonable, I will certainly grant it.
8
9
Before I adjourn, does either party have any

questions?
10
For the Secretary?
MR. BLACK:
No, Your Honor, thank you very
12
MS. GUNNIN:
No, Your Honor.
13
JUDGE WELSCH:
Mr. Coe, any questions?
14
MR. COE:
15
JUDGE WELSCH:
11
much.
No, Your Honor.

I do want to thank all parties
16
in their presentation.
17
for, I guess, over 15 years now, and I'll have to say
18
this is probably one of the most unusual OSHA hearings
19
that I've had.
20
protection and guarding situations and things like
21
that.
22
I've been these OSHA hearings
Usually, I'm dealing with fall
But this is a different case.
I am going to
23
spend a lot of time dealing with this issue.
24
it's a very complicated issue and one that I need to
25
really consider in reviewing all of the evidence and the
CARLIN ASSOCIATES
(216) 226-8157
I do think
1984
1
2
documents that have been submitted into this record.

I do appreciate both Counsel's presentation in
presenting the evidence to me so I can make that
consideration.
anything else, we stand adjourned.
So, with that said, unless there is
---o0o---
were concluded at 5:55 p.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CARLIN ASSOCIATES
(216) 226-8157
1985
2
3
10
11
12

13
14
15
16
17
BY:__________________________
Norma Carlin
18
19
20
21
22
23
24
25
CARLIN ASSOCIATES
(216) 226-8157
1986
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CARLIN ASSOCIATES
(216) 226-8157

OSHA V SeaWorld Trial Transcript

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1

UNITED STATES OF AMERICA

Judge Ken S. Welsch

Monday, September 19, 2011

Siminole County Court House

Animal Training SOP

Let's go on the record.

This hearing is convened in the case of Secretary

of Labor versus Sea World of Florida, LLC.

The date is September 19, 2011.

The location is Sanford, Florida.

Let the record reflect that the hearing is before

Judge Ken Welsch of the Occupational Safety and Health

Let me just say this:

There is no issue before me

regarding whether or not the whales should be held in

whether or not Sea World was responsible for the death

Also, there is no issue before me as to

The issues before me solely involve the OSHA

citations that were issued, the serious, the willful and

the other than serious citations that were issued on

August 23, 2010, involving an inspection at the Sea

World Park, located at 7007 Sea Harbor Drive, Orlando,

If I understand it, all the alleged violations and

proposed penalties and classifications are at issue

Would the parties enter their appearance for the

Representing the Secretary of Labor?

Good morning, Your Honor.

Black, and I work in the Office of the Solicitor,

Atlanta, Georgia, here this morning representing the

Secretary of Labor in this case.

give your whole address.

Part of the test is you have to

Our address is 61 Forsyth Street,

I believe we're in Room 7T10, Atlanta,

And your telephone number?

more difficult questions.

I hope there are no

And who is sitting with you?

telephone number as Mr. Black.

Good morning, Your

Tremelle Howard-Fishburne, here on behalf of the

And, representing Sea World of Florida?

Yes, Your Honor.

Carla Gunnin for

My address is 230 Peachtree Street, Suite

2400, Atlanta, Georgia 30303, Telephone 404-525-8622,

and I'm with the firm of Costangy, Brooks & Smith.

And to my left, I have Kelly Flaherty Clark.

is my corporate representative, and I also have our

expert sitting at the table, Mr. Jeff Andrews, and also

a paralegal, in-house for Sea World.

And representing the Intervenor?

is Karen Dyer with the law firm Boies, Schiller &

with Boies, Schiller & Flexner.

And, with me is my colleague, Jon Mills, also

South Orange Avenue, Suite 840, Orlando, Florida 32801,

and the phone number is 407-425-7118.

time to think about that. (Levity)

So, we had a long

I just want to make sure.

here as an intervenor for the limited purpose strictly

for the privacy concerns of the family?