1

1
2
3
4

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

5
6
7
8
9
10
11
12
13

----------------------------------- x
)
)
SECRETARY OF LABOR,
)
)
Complainant,
)
)
-vs)
)
SEA WORLD OF FLORIDA, LLC,
)
)
Respondent,
)
)
)
------------------------------------x

14

OSHRC DOCKET
NO. 10-1705

TRANSCRIPT OF PROCEEDINGS
VOLUME I.

15
16

Before:

Judge Ken S. Welsch

17

Date:

Monday, September 19, 2011
9:00 a.m.

Place:

Siminole County Court House
1101 East First Street
Sanford, Florida 32771

18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

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

18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

3

1

I N D E X

2

WITNESSES

3

Name

4

Flaherty Clark

Direct

Cross

32

84

Redirect

Recross

154

-

5
---o0o---

6
7
8
9
10
11

EXHIBITS
Complainant's
C-1

Description

Marked

Animal Training SOP

Respondent's
(None)

12
13
14
15
16
17
18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

50

Admitted
51

4

1

P R O C E E D I N G S

2

Morning Session

3

9:00 a.m.

4

JUDGE WELSCH:

Let's go on the record.

5

This hearing is convened in the case of Secretary

6

of Labor versus Sea World of Florida, LLC.

7

Number is 10-1705.

8

The date is September 19, 2011.

9

The Docket

The location is Sanford, Florida.

Let the record reflect that the hearing is before

10

Judge Ken Welsch of the Occupational Safety and Health

11

Review Commission.

12

Let me just say this:

There is no issue before me

13

regarding whether or not the whales should be held in

14

captivity.

15

whether or not Sea World was responsible for the death

16

of Ms. Brancheau.

Also, there is no issue before me as to

17

The issues before me solely involve the OSHA

18

citations that were issued, the serious, the willful and

19

the other than serious citations that were issued on

20

August 23, 2010, involving an inspection at the Sea

21

World Park, located at 7007 Sea Harbor Drive, Orlando,

22

Florida.

23

If I understand it, all the alleged violations and

24

proposed penalties and classifications are at issue

25

before me.

CARLIN ASSOCIATES

(216) 226-8157

5

1
2
3

Would the parties enter their appearance for the
record, please?

Representing the Secretary of Labor?

MR. BLACK:

Good morning, Your Honor.

I'm John

4

Black, and I work in the Office of the Solicitor,

5

Atlanta, Georgia, here this morning representing the

6

Secretary of Labor in this case.

7

JUDGE WELSCH:

8

give your whole address.

9

MR. BLACK:

10

Southwest.

11

Georgia 30303.

Part of the test is you have to

Our address is 61 Forsyth Street,

I believe we're in Room 7T10, Atlanta,

12

JUDGE WELSCH:

13

MR. BLACK:

And your telephone number?
404-302-5435.

14

more difficult questions.

15

JUDGE WELSCH:

16

MS. HOWARD-FISHBURNE:

I hope there are no

And who is sitting with you?

17

Honor.

18

Secretary.

19

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

20

JUDGE WELSCH:

Thank you.

21

And, representing Sea World of Florida?

22

MS. GUNNIN:

Yes, Your Honor.

Carla Gunnin for

23

Sea World.

My address is 230 Peachtree Street, Suite

24

2400, Atlanta, Georgia 30303, Telephone 404-525-8622,

25

and I'm with the firm of Costangy, Brooks & Smith.

CARLIN ASSOCIATES

(216) 226-8157

6

1

And to my left, I have Kelly Flaherty Clark.

She

2

is my corporate representative, and I also have our

3

expert sitting at the table, Mr. Jeff Andrews, and also

4

a paralegal, in-house for Sea World.

5

JUDGE WELSCH:

6

MS. DYER:

And representing the Intervenor?
Good morning, Your Honor.

My name

7

is Karen Dyer with the law firm Boies, Schiller &

8

Flexner.

9

with Boies, Schiller & Flexner.

And, with me is my colleague, Jon Mills, also
The address is 121

10

South Orange Avenue, Suite 840, Orlando, Florida 32801,

11

and the phone number is 407-425-7118.

12

time to think about that. (Levity)

13

JUDGE WELSCH:

So, we had a long

I just want to make sure.

You're

14

here as an intervenor for the limited purpose strictly

15

for the privacy concerns of the family?

16

MS. DYER:

17

JUDGE WELSCH:

That is correct, Your Honor.
Thank you.

You're not here to

18

present any evidence, call witnesses, examine witnesses;

19

that sort of thing?

20

MS. DYER:

Correct.

We're here solely for the

21

purpose of protecting privacy rights.

22

to present any evidence in this matter.

23

JUDGE WELSCH:

24

Mr. Black?

25

MR. BLACK:

We do not intend

Thank you.

And, Your Honor, I realize I

CARLIN ASSOCIATES

(216) 226-8157

7

1

probably should have introduced at the Counsel table

2

with us is our government representative, which is Lara

3

Padgett, and she's with OSHA and was the lead

4

investigator in this matter.

5

Florida.

6

Dave Duffus.

7

Her office is in Tampa,

And also in the courtroom is our expert, Dr.

JUDGE WELSCH:

I'm assuming there's no issue

8

before me regarding jurisdiction and coverage.

9

all been stipulated to?

10

MS. GUNNIN:

11

JUDGE WELSCH:

12

MR. BLACK:

13

JUDGE WELSCH:

14

MR. BLACK:

16

JUDGE WELSCH:

18

Yes, Your Honor.
Mr. Black?
I'm not aware of any issues.
Are there any other stipulations

that the parties have arrived at?

15

17

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'

19

testimony, for right now, it's going to be held.

20

explained to Counsel in chambers, I hold that until we

21

do the Daubert hearing when the expert is called as a

22

witness.

23

So, right now, that motion is being held.

24
25

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.

CARLIN ASSOCIATES

(216) 226-8157

8

1

I'm going to hold that until those witnesses if and when

2

they're called and then we'll deal with that.

3

The Intervenor's motion for a protective order, I

4

have explained that in chambers.

5

motion also to the point if and when the Secretary

6

introduces the video and then we'll take up the motion

7

for a protective order.

8

known whether or not that video is going to be

9

introduced.

10

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

11

deal with is the Motion to Revoke Subpoenas of the three

12

individuals from Sea World of San Diego.

13

indicated, I'm denying the Motion to Revoke the

14

Subpoenas on the basis that the subpoenas that were

15

issued have a nationwide effect.

16

cites does not apply.

17

And, as I have

The rule that Counsel

It's statutory under Section 12(i) of the

18

Occupational Safety and Health Act, 29 USC 661(i), which

19

refers to proceedings before the Commission, looks to

20

the National Labor Relations Act, Section 161, and

21

Section 161 of the National Labor Relations Act makes it

22

a corporate or nationwide subpoena power.

23

So, the Respondent's Motion to Revoke Subpoenas is

24

denied to that extent.

I will ask, though, that Counsel

25

see if there are alternative means if the Secretary does

CARLIN ASSOCIATES

(216) 226-8157

9

1

intend to call the three individuals from San Diego, I

2

want to make sure if they are brought in here, that the

3

Secretary does actually intend to have them called as

4

witnesses.

5

I also want to see if the parties might be able to

6

work out some stipulations to obviate the need to even

7

have them as witnesses.

8

Secretary to look at whether or not they need all three.

9

Maybe one witness might suffice for the Secretary's

10
11

Also, I would like the

purpose.
Anyway, I'm just asking the Secretary to look into

12

that, and we'll deal with that later.

13

the Motion to Revoke the Subpoenas, that's being denied.

14

But, in terms of

Are there any other preliminary matters in

15

addition?

I will ask is either party or the parties

16

asking that witnesses be sequestered?

17

MR. BLACK:

We are, Your Honor.

18

MS. GUNNIN:

We join in this request, Your

19
20

Honor.
JUDGE WELSCH:

Anybody who has been subpoenaed

21

or knows that they are likely to be called as witnesses

22

in this case, would you mind standing, please, if

23

they're here in the courtroom?

24
25

(Witnesses Comply)
JUDGE WELSCH:

Save that.

CARLIN ASSOCIATES

Now, Mr. Black, to

(216) 226-8157

10

1

remain in the courtroom, you have the compliance

2

officer.

3

Secretary?

4
5
6

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

7

Dr. Duffus to be in the courtroom for his testimony as

8

an expert?

9

MR. BLACK:

It is, Your Honor.

10

MS. GUNNIN:

We have no objection.

11

JUDGE WELSCH:

12
13

Okay, Dr. Duffus may remain in

the courtroom.
Would you rather sit up here?

14

and your Counsel.

15

MS. GUNNIN:

That's between you

Judge, this is Mr. Chuck Tomkins.

16

He has been subpoenaed by the Secretary.

17

going to be a witness in our case, but he's not a

18

representative, so we'll find a place for him outside.

19
20

JUDGE WELSCH:

Well, the Company's

representative is?

21

MS. GUNNIN:

Ms. Flaherty Clark.

22

JUDGE WELSCH:

Ms. Flaherty Clark.

23

He's also

And, your

expert is?

24

MS. GUNNIN:

Is Mr. Andrews.

25

JUDGE WELSCH:

Mr. Andrews?

CARLIN ASSOCIATES

Does he need to be

(216) 226-8157

11

1

in the courtroom for his testimony?

2

MS. GUNNIN:

3

JUDGE WELSCH:

Yes, Your Honor.
He may remain in the courtroom.

4

So, there's only one person in the courtroom that's

5

being called as a witness in this case?

6

MS. GUNNIN:

7

JUDGE WELSCH:

Yes, Your Honor.
Mr. Tomkins, I will ask you not

8

to discuss your testimony or what you anticipate your

9

testimony to be with anybody else prior to your

10

testimony, and after you testify, I ask that you not

11

discuss your testimony with any other witnesses who may

12

be called later in the case.

13

But, for the time being, I would ask that Counsel

14

-- I think there is a jury room outside, and maybe you

15

can show him where that is.

16
17

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

18

MR. BLACK:

19

JUDGE WELSCH:

20
21

He may very well be.
Can you show him, Ms. Gunnin?
(Witness Excused)

JUDGE WELSCH:

Before we proceed on, Mr. Black

22

or Ms. Gunnin, are there any other preliminary matters

23

we need to discuss?

24
25

MR. BLACK:

Two things, one which I've just

learned about, but I'll deal with the one that I was

CARLIN ASSOCIATES

(216) 226-8157

12

1
2

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

3

scope of witnesses and whether witnesses were going to

4

be called once or whether they could be recalled by

5

Respondent in their case.

6

lists were exchanged.

7

That was before the witness

And, having seen now the witness lists by the

8

parties, I think there are perhaps six or seven

9

overlapping witnesses listed by the parties.

10

And, so we wanted to know definitively whether if

11

we call a witness who is listed on both lists, you're

12

going to listen to all the testimony from that witness,

13

both Direct Examination by us as well as Sea World's

14

Cross-Examination, if you will, and any additional

15

examination that they have as part of their case because

16

we just want to know what -- we don't think that's the

17

appropriate way to do it.

18

We would ask that witnesses as is the normal

19

procedure, there's Direct and then there's Cross, and

20

then if they have something they want to say that's

21

beyond our Direct, they call that witness in their case.

22

JUDGE WELSCH:

I think the issues are such that

23

whatever you ask on Direct is probably going to be

24

subject to Cross-Examination.

25

going to be anything beyond unless you have a very fine

CARLIN ASSOCIATES

I'm not sure there's

(216) 226-8157

13

1
2

tuned Direct Examination.
I understand your point.

I generally do like to

3

avoid the witnesses having to come back and forth.

4

would rather just get the witness -- but I will ask at

5

the finish of that witness's testimony, whether or not

6

that witness is now excused as a witness by both

7

parties.

8

examined.

9

burden of proof to the extent that it goes beyond what

10
11

I

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

12

that way, but if it's Your Honor's ruling that that's

13

how we're going to proceed, we want it to be consistent

14

with all the witnesses and not just left up to, well,

15

can you come back --

16

JUDGE WELSCH:

Let's cross that bridge when we

17

get to it.

18

Both Counsel are representing your clients, and if you

19

feel that objections need to be made, make your

20

objections.

21

allowing it the other way, so that's fine.

22
23
24
25

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

CARLIN ASSOCIATES

(216) 226-8157

14

1

witnesses back and forth, and as you know, we're not in

2

Orlando with this hearing, and it is a bit of a

3

disruption.

4

JUDGE WELSCH:

But, you understand, I'm certain,

5

there's an advantage on your Cross-Examination of the

6

witnesses that if you're going beyond the scope of what

7

the Secretary has asked about, then it should be

8

switched to more Direct Examination as opposed to

9

leading questions.

10

MS. GUNNIN:

Yes, Your Honor.

11

JUDGE WELSCH:

I think we can work all this out.

12

Any other preliminary matters?

13

MR. BLACK:

Well, there is a matter that I just

14

learned about, and that is the witness we intended to

15

call as our first witness is not here, despite us having

16

notified Sea World yesterday of our need to have him

17

here 9:00 today.

18

MS. GUNNIN:

That's Fredy Herrara.
And, Judge, as we have discussed,

19

the Secretary has subpoenaed 35 witnesses in this case.

20

In an effort to try to understand which witnesses need

21

to be here so that we didn't have to absolutely shut

22

down Sea World today, we have asked for time and they

23

notified me yesterday afternoon.

24

ahold of witnesses on a nonbusiness day, so we were not

25

able to get ahold of Mr. Herrara.

CARLIN ASSOCIATES

We can't just get

(216) 226-8157

15

1
2

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

3

What I had understood was that they wanted Ms.

4

Flaherty Clark and Mr. Tompkins to be present in the

5

courtroom at 9:00, and those two witnesses are present

6

in the courtroom this morning.

7

So, we will try to get them here as quickly as

8

possible, but there are other witnesses available for

9

testimony this morning.

10
11

JUDGE WELSCH:

So, Mr. Herrara will be made

available to the Secretary --

12

MS. GUNNIN:

Yes, Your Honor.

13

JUDGE WELSCH:

-- sometime today?

14

MS. GUNNIN:

Yes, Your Honor.

15

JUDGE WELSCH:

Can the Secretary -- I know this

16

might not be what you planned in your order to call

17

another witness.

18

MR. BLACK:

We can call another witness first.

19

We would rather not have to rearrange our entire

20

schedule.

21

shift started at 8:00 or 7:00, and I think from what he

22

had indicated during his deposition, it's now 10:00 so

23

it could well be the three hours that we were asked to

24

provide notice.

25

We would like -- Mr. Herrara, I assume his

I understand we have a number of Sea World

CARLIN ASSOCIATES

(216) 226-8157

16

1

witnesses on our witness list; and, thus, yesterday

2

afternoon we sent an e-mail to Counsel, saying, "We want

3

these four people there tomorrow at 9:00, so we can be

4

ready to go," the four people being the two who are

5

here, Mr. Tompkins and Ms. Clark, and two others being

6

Ms. Schaber and Mr. Herrara.

7

And, now, we're hearing at 9:45 for the first time

8

that they are not here, and we don't understand.

9

want to prevent any recurrence, certainly, of this, and

10
11

So, we

we want to deal with the issue.
JUDGE WELSCH:

Well, as quickly as you know

12

the order of your witnesses, I would suggest you provide

13

that to Ms. Gunnin, and then she can quickly identify

14

whether or not somebody will be available.

15

MS. GUNNIN:

And, Judge, can I ask that he do

16

this in the normal business hours rather relying upon a

17

Sunday afternoon when we're all traveling?

18
19
20
21

JUDGE WELSCH:

We're not going to go any further.
Any other preliminary matters?

MR. COE:

23

JUDGE WELSCH:

25

Do the Intervenors

have anything they want to say at this juncture?

22

24

Okay, enough is enough.

No, Your Honor.
Does either party wish to make an

opening statement?
MR. BLACK:

Yes, Your Honor.

CARLIN ASSOCIATES

(216) 226-8157

17

1

JUDGE WELSCH:

Okay, Mr. Black, go ahead.

2

MR. BLACK:

3

Now, killer whales are large, powerful and

Thank you, Your Honor.

4

nondomesticated animals.

I think everybody would agree

5

with that.

6

physical harm or death to people who get near them.

7

don't think there's any dispute about that.

They have a potential to cause serious
I

8

Sea World's killer whale training program doesn't

9

change the essential facts that harm or death to people

10

responsible.

Their program doesn't eliminate what Sea

11

World recognizes itself as, "a calculated risk."

12

despite this calculated risk, until the day of Ms.

13

Brancheau's death in February of 2010, Sea World of

14

Florida, LLC, the Respondent here, allowed their

15

trainers in show performances to swim with and ride on

16

most of Sea World's killer whales.

So,

17

Now, despite this calculated risk, Sea World still

18

permits today its trainers, during show performances, to

19

work in close and unprotected contact with its killer

20

whales.

21

made off limits with only one killer whale and that's

22

Tilikum, the whale that killed Dawn Brancheau 19 months

23

ago.

24
25

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),

CARLIN ASSOCIATES

(216) 226-8157

18

1

and for permitting -- it has two parts to it.

2

for permitting unprotected contact with Tilikum during

3

show performances.

4

One is

We have also charged Sea World of Florida with a

5

willful 5(a)(1) for permitting trainers during show

6

performances with whales other than Tilikum without

7

physical protection to get into the water with the

8

killer whales and also charging them with allowing them

9

to get in close proximity with the killer whales while

10
11

they're out of the water.
We expect the evidence is going to show that Sea

12

World's primary method for trying to keep trainers safe

13

was to train their trainers -- that was their principal

14

way of protecting the trainers -- and Sea World trains

15

its trainers how to recognize and how to avoid potential

16

risks, and then, in effect, tells them, "be careful."

17

We also expect that the evidence is going to show

18

that Sea World knows and that it knew in February of

19

2010 that relying primarily on training the trainers to

20

be careful leaves gaps with the potential for serious

21

injury or for death.

22

Sea World had trained its trainers to recognize

23

what it calls precursors, and you're going to hear that

24

word during the hearing, I imagine several times;

25

precursors to potential dangerous whale behavior and,

CARLIN ASSOCIATES

(216) 226-8157

19

1

then, hopefully, to make the correct decisions to

2

prevent or avoid dangerous behavior after they have

3

identified a precursor.

4

And, Sea World characterizes dangerous whale

5

behavior most often as aggressive.

6

for training the trainers still allows this calculated

7

risk in at least three ways.

8

not sufficient for providing protection against that

9

risk.

10

Sea World's safety

Training the trainer is

First, the trainer might fail to observe the

11

precursor and, thus, miss the opportunity to avoid the

12

dangerous behavior.

13

Second, the trainer might recognize the precursor

14

and see it, but make decisions in real time that in

15

hindsight are seen as incorrect and not being effective.

16

Third, a whale might engage in the dangerous

17

behavior without there being any previously identified

18

precursor.

19

So, those are the deficiencies in their safety

20

program that we expect the evidence is going to explore

21

and expose.

22

Now, Sea World says that Dawn was killed because

23

Sea World had never previously seen Tilikum grab anyone

24

and pull them into the water.

25

evidence is going to show that Sea World recognized this

CARLIN ASSOCIATES

We expect that the

(216) 226-8157

20

1

calculated risk to the trainers, including to Dawn but

2

they will --

3
4

JUDGE WELSCH:

refer to her by her last name, please.

5
6

Mr. Black, I would like you to

MR. BLACK:

I'm sorry, Your Honor.

My

apologies.

7

Sea World says that Ms. Brancheau was killed

8

because they had never previously seen a whale named

9

Tilikum grab and pull anybody under the water, but we

10

expect that the evidence is going to show that they

11

recognized this calculated risk to trainers, including

12

Ms. Brancheau, but they willfully chose not no change

13

their reliance on this primary safety mechanism of

14

training the trainers to avoid danger.

15

Now, we also expect that the evidence is going to

16

raise a number of questions about Sea World's

17

credibility.

18

show that Sea World agrees on the one hand that it's

19

irrelevant to safety as to how Tilikum actually pulled

20

Ms. Brancheau into pool by her hair versus her arm; and

21

then on the other hand to perpetuate a version of events

22

that she was definitely, definitively pulled in by her

23

hair.

24
25

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

CARLIN ASSOCIATES

(216) 226-8157

21

1

credibility as to what they say, and we would ask the

2

Court to listen carefully to that.

3

We'll also address the two other citations that

4

don't involve the killer whales.

We expect that the

5

evidence is going to establish the serious violation of

6

failing to have a guardrail on the stairs and an other

7

than serious violation for failure to provide

8

weatherproof enclosures for electrical outlets and

9

receptacles.

10

Now, in response to the Secretary's case, we

11

expect Sea World to offer evidence that purports to show

12

there's been only a limited number of injuries, and in

13

listening to this evidence, we think you should consider

14

whether the calculated risk of injury or death that Sea

15

World had already recognized on the morning of

16

February 24, 2010, was so low that they could disregard

17

it as insignificant or treat it as if it wasn't a real

18

risk.

19

Additionally, and finally, we would ask that you

20

listen carefully to the evidence that Sea World is

21

expected to present on abatement to determine whether

22

Sea World has shown the infeasibility of the Tilikum and

23

water work abatement measures that it's already

24

implemented.

25

World has abated hazards as to Tilikum, the way that

That is, the evidence will show that Sea

CARLIN ASSOCIATES

(216) 226-8157

22

1

OSHA has proposed.

2

As to water work, as to swimming with the whales

3

during performances, Sea World has also suspended that

4

for the last 17 months.

5

feasible to do that, to continue the suspension of the

6

water work.

But, they claim that it is not

7

Also, although Sea World hasn't implemented

8

protective contact with the other whales during shows,

9

that is, providing a barrier or distance for them when

10

interacting with them during shows, we would ask you to

11

listen and see whether you hear any credible evidence of

12

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

CARLIN ASSOCIATES

(216) 226-8157

23

1

performances, I assume there's training and interactions

2

that go on prior to the shows?

3

MR. BLACK:

4

JUDGE WELSCH:

5

Correct.
You're saying the Secretary's

citations do not deal with those?

6

MR. BLACK:

While the Secretary believes that

7

there are hazards involved with those, and that it

8

presents some of the same hazards to the trainers, those

9

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

CARLIN ASSOCIATES

(216) 226-8157

24

1
2

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

3

to trainers.

4

see whether the language says only with trainers.

5

in fact, the trainers, to our knowledge, are the only

6

ones who would be interacting with the whales in ways

7

that we're saying are unsafe during show performances.

8

So, there may be other folks, but we're not intending to

9

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

CARLIN ASSOCIATES

(216) 226-8157

25

1

ago, the concept being it was to be a window to the sea

2

where ordinary people could learn and be inspired by the

3

ocean.

4

The purpose of the Company is to educate,

5

certainly there's entertainment to guests, and the

6

purpose is ultimately that there is a better respect for

7

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

CARLIN ASSOCIATES

(216) 226-8157

26

1

themselves.

2

you're going to hear a lot about the training methods

3

that Sea World uses to allow the killer whales to

4

perform as they do, to allow them to submit to voluntary

5

medical and husbandry procedures, and you're going to

6

hear how that goes hand in hand with the training of the

7

killer whale trainers, and those two are not exclusive

8

of one another.

9

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

CARLIN ASSOCIATES

(216) 226-8157

27

1

24th.

It was a life changing event to many people.

It

2

affected Sea World deeply, it affected, of course, Ms.

3

Brancheau's family very deeply.

4

issue is the efforts that Sea World has made prior to

5

that time to ensure trainer safety.

But, I think the bigger

6

You're also going to hear about a prior OSHA

7

inspection that was conducted by CAL-OSHA that occurred

8

in 2006 and ended in 2007.

9

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

CARLIN ASSOCIATES

(216) 226-8157

28

1

standards and Sea World's compliance as being an

2

accredited organization by the AZA.

3
4

JUDGE WELSCH:

Is Sea World considered an

aquarium as opposed to entertainment?

5

MS. GUNNIN:

They are a member of the AZA, the

6

Association of Zoos and Aquariums.

7

a theme park.

8

research, it would be considered an aquarium.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

There's

29

1

more contact in the back area of Shamu Stadium, not in

2

front of the public, not performing shows than there is

3

performing shows.

4

So, it would be inconsistent to take the position

5

that it's okay to do that in the back as long as you

6

don't have people watching, but you can't do that in a

7

show.

That doesn't seem to make a lot of logical sense.

8

The care of the animals involves not only medical

9

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?

CARLIN ASSOCIATES

(216) 226-8157

30

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.

7

JUDGE WELSCH:

When did the Sea World of

8

Orlando facility start?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

31

1

I think I can shed some light on that.

2

What happened was that the Sea World Park has been

3

owned by different corporate entities, and it was at one

4

time owned by Clark, Praise Stefanovich, it was later

5

sold to Anheuser-Busch, and then Anheuser-Busch was

6

acquired by a company called InBev, and then it was spun

7

off to the Blackstone Group.

8

Entertainment is its own corporate entity and then the

9

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.

CARLIN ASSOCIATES

(216) 226-8157

32

1

JUDGE WELSCH:

Ms. Clark?

2

---o0o---

3

KELLY FLAHERTY CLARK,

4

having been first duly sworn, was

5

examined and testified as follows:

6

JUDGE WELSCH:

Ma'am, for the record, would

7

you state your full name, spell your last name, and

8

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.

CARLIN ASSOCIATES

(216) 226-8157

33

1

A.

Good morning.

2

Q.

How are you today?

3

A.

I'm doing well, thank you.

4

Q.

I just want to ask you some questions this

5

morning, obviously, about this case.

6

You've been with Sea World since 1987?

7

A.

Yes, I started with Sea World in 1987.

8

Q.

That was in March of 1987?

9

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

CARLIN ASSOCIATES

(216) 226-8157

34

1
2

to in her opening?
A.

Yes.

There are four facilities at the park

3

that I'm currently overseeing.

4

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

8

ambassador team.

That group of animals does public

9

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.

CARLIN ASSOCIATES

Actually, I was

(216) 226-8157

35

1

assistant curator for Whale and Dolphin for about

2

five years before.

3

curator at Sea Lion and Otter Stadium.

4

Q.

Before that, I was also an assistant

You're sort of soft spoken, and just so the

5

Court Reporter can hear -- I know it's hard to speak

6

loudly if that's not our natural speaking voice.

7

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

CARLIN ASSOCIATES

(216) 226-8157

36

1

you will, at Shamu Stadium from 1994 to 1998?

2

A.

My best guess is that's right.

3

Q.

In other words, you were a supervisor and

4

assistant supervisor?

5

A.

Yes.

6

Q.

Now, before becoming an assistant supervisor,

7

you also worked as a senior trainer, right?

8

A.

That's correct.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

37

1
2

Q.

So, your responsibilities are for the health

and well being of all the animals, right?

3

A.

Yes.

4

Q.

That are in the collection that are within

5

the animal training department.

6

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

CARLIN ASSOCIATES

(216) 226-8157

38

1

this case?

Some people just came in.

2

to be witnesses?

3

going to be witnesses in the case?

4

(No Response)

Do you know whether or not you're

5

JUDGE WELSCH:

6

Go ahead, I'm sorry.

7

MR. BLACK:

8

BY MR. BLACK:

9

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?

CARLIN ASSOCIATES

(216) 226-8157

39

1

A.

Yes.

2

Q.

And, tell me if I'm spelling this right for

3

the Court Reporter to get it down.

4

second word is P-a-r-q-u-e?

L-o-r-o and the

5

A.

Yes.

6

Q.

Spanish for Parrot Park?

7

A.

I don't speak Spanish.

8

Q.

And Sea World has five whales at Loro Parque?

9

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.

CARLIN ASSOCIATES

I was just

(216) 226-8157

40

1

trying to make sure I know how to pronounce it and

2

pronounce is properly.

3

And, in your position with Sea World that we

4

have talked about, you worked closely with senior

5

trainers, right?

6

A.

Yes.

7

Q.

And, you still work closely with senior

8

trainers?

9

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

CARLIN ASSOCIATES

(216) 226-8157

41

1

other interactions with our animals.

2

between a show performance with our animals and any

3

other interaction is that there is an audience and

4

there's a sound system.

5

The difference

Other than that, you'll find pretty much a

6

lot of the same components.

When it comes to

7

interacting with our killer whales, a show performance

8

is much like everything else that happens in the

9

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

CARLIN ASSOCIATES

(216) 226-8157

42

1

objective of the show and the objective of the other

2

interactions we do.

3
4

Q.

No, I'm asking at the show, you display those

animals performances to the public, right?

5

A.

Yes.

6

Q.

And, you choose which animal behaviors,

7

tricks, whatever you want to call them, you choose which

8

ones to show to the public, right?

9

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

CARLIN ASSOCIATES

(216) 226-8157

43

1

behaviors that we do.

2

in the shows contribute to our ability to train a

3

gastric sample.

4

However, the training that we do

There are several behaviors going on during a

5

show, and the behaviors that are going on in the show

6

contribute to our other training.

7

While I might not ask an animal to hold their

8

mouth open while I put a tube in to collect the gastric

9

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?

CARLIN ASSOCIATES

(216) 226-8157

44

1

Is that the kind of question you're asking?

2

MR. BLACK:

I only asked about one particular

3

behavior and whether it was done during a show, and then

4

I got a litany --

5

JUDGE WELSCH:

6

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

CARLIN ASSOCIATES

(216) 226-8157

45

1
2
3

me?
Q.

Well, you don't display all of the behaviors

that you have trained the whales to perform?

4

A.

That's correct.

5

Q.

So, you pick from that universe of behaviors

6

that the whales are capable of performing and select

7

certain ones, I think you used the term that the public

8

would like to see?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

46

1

A.

Yes.

2

Q.

And, part of that responsibility or primarily

3

that responsibility is making sure that the protocols

4

are adhered to; the protocols for safety?

5

A.

Yes.

6

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

CARLIN ASSOCIATES

(216) 226-8157

47

1

animals through the training of your trainers to be able

2

to train the animals?

3

A.

Sure, yes.

4

Q.

So, it's the primary way that you ensure

5

safety is the training of the trainers?

6

A.

Yes.

7

Q.

The key part if you will.

8

It's the key part

of safety?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

48

1

A.

I would say they're one thing.

When we're

2

training the trainers, we use a system of check off, and

3

I'm not sure what you're referring to when you say our

4

SOP's.

5

that has all the written operating procedures or all the

6

documents that complement that manual when we're doing

7

our training.

8

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.

CARLIN ASSOCIATES

Go ahead.

(216) 226-8157

49

1

Do you understand his question?

2

THE WITNESS:

What I'm having a hard time

3

understanding is whether he's talking about the SOP

4

document which is something we ask everybody to read.

5

But, there's a bunch of documents that complement that

6

that the trainer learns.

7

including the check-off sheets.

8

BY MR. BLACK:

9

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.

CARLIN ASSOCIATES

(216) 226-8157

I

50

1
2

have it here.
JUDGE WELSCH:

Mr. Black, why don't you just

3

leave it all in there right now.

4

Exhibit 1?

5
6

MR. BLACK:

You're talking about

Actually, it's Exhibit 2.

Excuse

me, it's Tab 2.

7

JUDGE WELSCH:

8

MR. BLACK:

9

(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

CARLIN ASSOCIATES

(216) 226-8157

51

1
2
3

objection.
(Whereupon, Complainant's Exhibit C-1, previously
marked, was admitted into evidence)

4

BY MR. BLACK:

5

Q.

And, if you would turn to the very last page.

6

A.

(Witness complies).

7

Q.

So, the last page which --

8

MR. BLACK:

9

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 -- -"

CARLIN ASSOCIATES

(216) 226-8157

52

1

A.

"Paired with my ability to evaluate animal

2

behavior, the key to safe trainer/animal

3

interactions."

4

Q.

So, you would agree with me that that really

5

means that their own skills, skills being an

6

accumulation of their experience and applying and

7

evaluating the animal behavior and training techniques.

8

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?

CARLIN ASSOCIATES

(216) 226-8157

53

1

safety is training?

2

A.

I agree.

3

Q.

And, trainers are trained to protect

4

themselves.

5

right; training the trainers to protect themselves?

6

A.

I mean, that's what this SOP is about,

The trainers are trained, they are equipped

7

with the knowledge to carry out safe animal

8

interactions.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

54

1

Q.

No, I'm not saying that they're not trained

2

on other things, but part of the training is to see what

3

Sea World refers to as precursors, correct?

4

A.

Part.

A precursive behavior is a behavior that

5

happens before another behavior.

6

sure that I understand your -- it's any other behavior

7

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?

CARLIN ASSOCIATES

(216) 226-8157

55

1

A.

Yes.

2

Q.

Fair enough.

3

Now, the precursors you started to define,

4

these are actions by the killer whales that suggest or

5

signal that the whale may do something that isn't wanted

6

or desirable?

7

A.

That's where I think the definition is off,

8

but I think I understand what you're saying.

So,

9

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?

CARLIN ASSOCIATES

(216) 226-8157

56

1

THE WITNESS:

Any behavior, right.

2

JUDGE WELSCH:

Or any behavior.

3

THE WITNESS:

Any behavior.

Precursor can

4

predate any behavior.

5

precursor to unwanted behavior, yes, we train our

6

trainers to recognize precursors to unwanted behavior.

7

BY MR. BLACK:

8

Q.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

57

1

A.

There are, yes.

2

Q.

And, trainer errors in the incident reports

3

that led to undesirable whale behavior?

4

A.

Yes.

5

Q.

Or even aggressive whale behavior?

6

A.

Yes.

7

Q.

And, so making errors, that's just part of

8

human nature.

9

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,

CARLIN ASSOCIATES

(216) 226-8157

58

1
2

yes.
Q.

And, now, harm could happen even if the

3

trainer doesn't make a behavioral judgement error,

4

right?

5

A.

Yes.

6

Q.

That is, the trainer might not make an error,

7

and the whale does something that is harmful to the

8

trainer, that the trainer hasn't been trained on?

9

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

CARLIN ASSOCIATES

(216) 226-8157

59

1

interact, where we chose to step away.

2

reviewed situations from extremely minor to the tragedy

3

of February 24th last year, and so I've been involved in

4

all of that.

5

Q.

I have also

So, you would agree, though, that the

6

trainers, while you might afterwards adjudge that there

7

were environmental cues or other cues that the trainer

8

could have picked up on, in fact, that's only in hind

9

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

CARLIN ASSOCIATES

(216) 226-8157

60

1

a killer whale's mouth?

2

A.

Yes.

3

Q.

A trainer could be physically displaced by a

4

killer whale?

5

A.

6

Yes.

Can you go back, you said the harm.

Can you repeat that?

7

Q.

I'm sorry?

8

A.

You said the harm for a killer whale was

9

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.

CARLIN ASSOCIATES

(216) 226-8157

61

1

Q.

And killer whales, they could come out and

2

they could bump into you and displace you while you're

3

on the edge of the pool?

4

A.

Yes.

5

Q.

And, in fact, you've had incidents where that

6

has happened?

7

A.

Yes.

8

Q.

And, those incidents may have been the result

9

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 --

CARLIN ASSOCIATES

(216) 226-8157

62

1

A.

I will let you know.

2

Q.

-- while you're soft spoken, I don't think

3

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?

6

A.

Yes.

7

Q.

And, there's also a potential that a killer

8

whale could drown you, right?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

63

1

A.

Yes, they do.

2

Q.

And they have tail flukes?

3

A.

Yes, they do.

4

Q.

They have longer lung capacity than humans

5

have for sure?

6

A.

Yes, they have more capacity for transfer.

7

Yes, they hold their breath longer than a human being

8

can.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

64

1

Q.

Trainable, I think would be the --

2

A.

Yes.

3

Q.

And, you have to see a precursor or

4

precursive behavior to be able to respond to it, right?

5

You have to recognize it?

6

A.

You have to be able to recognize everything

7

in the environment.

The behavior may be of other whales

8

in the facility, it may be the weather, it may be

9

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

CARLIN ASSOCIATES

(216) 226-8157

65

1

to see a precursor or precursive behavior in order to

2

respond to it?

3

A.

No.

What I'm saying is I might be working

4

with killer whales in front of me, but exhibiting no

5

signs of behavioral precursors associated with unwanted

6

events, and I might choose that the environment has

7

changed such that I'm going to change the way I'm

8

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.

CARLIN ASSOCIATES

(216) 226-8157

66

1

Q.

I mean, it's common sense, right?

2

A.

But, it's also common sense that I'm not just

3

going to be looking at the whale in front of me.

4

going be acknowledging every single thing.

5

sense for the trainer that you're going to acknowledge

6

every single thing in your environment that will

7

contribute to this whale's behavior that's in front of

8

me.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

67

1
2

Q.

So, you can't expect a trainer to see

everything, right, that goes on in the environment?

3

A.

I expect the trainers -- my expectation of

4

them is to be aware of and make decisions about every

5

single thing in the environment, sure.

6

Q.

7

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

8

in fact, your experience tells you that that's not

9

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

(216) 226-8157

68

1
2

to it.

My answer is, "yes."

Q.

And, you did answer that question.

And, so

3

if they don't see a precursor, they can't make these

4

behavioral determinations in order to avoid the unwanted

5

behavior, right?

6

A.

Yes.

7

Q.

So, you would agree, then, that even if the

8

trainer doesn't make an error, they can still be harmed

9

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

CARLIN ASSOCIATES

(216) 226-8157

69

1

anything in Sea World's history, and I will be

2

hypothetical and create scenarios that we've never seen

3

to have discussions around safety interacting with

4

killer whales.

5

Q.

Including things that you have seen?

6

A.

Yes.

7

Q.

So, when you're coming up with hypotheticals

8

of things that you haven't seen, what sources of

9

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?

CARLIN ASSOCIATES

(216) 226-8157

70

1

A.

The function of that is creating behavioral

2

discussions, creating discussions around behavior and we

3

glean so much from talking about a craft.

4

contributes to development of both people and animals.

5

Q.

It

So, does that help the trainers avoid

6

precursors -- does that help trainers to respond to

7

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?

CARLIN ASSOCIATES

I will

I will talk about

(216) 226-8157

71

1

I'm not inventing precursive behavior that

2

we've never seen before, but I will create a scenario

3

that we haven't been faced with.

4

Q.

So, then, you would agree if you haven't had

5

a similar precursive behavior in the past, you can't

6

then train the trainer how to handle that precursive

7

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.

CARLIN ASSOCIATES

Is that fair?

(216) 226-8157

72

1

A.

That's not fair.

We did train it.

We did

2

generally approach how to react if you find yourself in

3

the situation where you are not -- in a situation you

4

would rather not be in with a killer whale, we train our

5

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.

I

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?

CARLIN ASSOCIATES

(216) 226-8157

73

1

A.

We talk a lot about being in ready position.

2

I would define that as being in a position where you

3

believe you can move away.

4

JUDGE WELSCH:

I'm a little confused.

I just

5

want to make sure I'm understanding what the testimony

6

is.

7

In terms of the training that you provided the

8

trainers prior to the time of the accident in February

9

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

CARLIN ASSOCIATES

(216) 226-8157

74

1

interacted with Tilikum, there were behaviors we did not

2

do with Tilikum that we did with other whales.

3

his own set of protocols.

4

JUDGE WELSCH:

He had

And there's no other whale -- the

5

seven whales were treated differently?

6

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?

CARLIN ASSOCIATES

(216) 226-8157

75

1

A.

No, I did not.

We care for Tilikum

2

performing behaviors that were around his mouth.

3

trained him on gastric tube behavior and that is around

4

his mouth.

5

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

CARLIN ASSOCIATES

(216) 226-8157

76

1

Tilikum's training, all of our protocol based on

2

Tilikum's behavioral history, yes.

3

MR. BLACK:

I want to change to a different

4

topic here, and I don't know if the Court -- I'm happy

5

to keep proceeding -- I don't know.

6

JUDGE WELSCH:

7

MR. BLACK:

8

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.

CARLIN ASSOCIATES

(216) 226-8157

77

1

Q.

And, you don't want to delay in any way

2

addressing that incident or that behavioral issue,

3

right?

4

A.

It's immediately addressed on the floor.

As

5

far as the written procedures, sometimes that will take

6

time but it's immediately addressed.

7

Q.

I mean, obviously, you want to address it as

8

quickly as you can, and you're saying immediately is

9

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

CARLIN ASSOCIATES

(216) 226-8157

78

1

World while trainers were interacting with killer

2

whales, right?

3

A.

Yes.

4

Q.

And, if there's an injury, of course, you're

5

not ignoring that fact for sure, right?

6

A.

Absolutely not.

7

Q.

And, so in addressing it immediately, the

8

first thing that Sea World does is often to pull the

9

trainers out of the water, right?

10

A.

No, that's not correct.

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.

CARLIN ASSOCIATES

(216) 226-8157

79

1
2

Q.

Aside from that emergency or perhaps other

emergencies, Sea World has stayed out of the water?

3

A.

We have suspended water interaction, yes.

4

Q.

And, this has happened before several times

5

that Sea World has suspended water work, right?

6

A.

Two other times.

7

Q.

Well, it happened in 1988?

8

A.

Yes.

9

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

CARLIN ASSOCIATES

(216) 226-8157

80

1

at Sea World of California in 1988 and an event that

2

happened at Loro Parque, and he's also talking about an

3

event that happened in San Diego.

4

So, at Sea World Orlando, February 24, 2010, is

5

the first time we've suspended water interaction at Sea

6

World around an event that happened in Sea World

7

Orlando, but corporately we have suspended water

8

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

CARLIN ASSOCIATES

(216) 226-8157

81

1

incident.

2
3

Q.

That was the immediate response was to

suspend it, right?

4

A.

Yes.

5

Q.

And, even here, the immediate response was to

6

suspend water work immediately after Ms. Brancheau was

7

killed, right?

8

A.

Yes.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

82

1

Q.

Was suspended?

2

A.

Yes.

3

Q.

At all of the Sea World facilities?

4

A.

Yes.

5

Q.

So, we have at least three instances, you

6

would agree, that water work was suspended?

7

A.

Yes.

8

Q.

And, at Sea World today, they still have

9

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

CARLIN ASSOCIATES

(216) 226-8157

83

1

debuted this year sometime, right?

2

A.

Yes, we did.

3

Q.

So, Sea World has maintained operations while

4

not having killer whales in the water, right?

5

JUDGE WELSCH:

6

BY MR. BLACK:

7

Q.

Killer whales in the water?

Sea World has stayed in business and

8

continued operating without having the trainers

9

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.)

CARLIN ASSOCIATES

(216) 226-8157

84

1

P R O C E E D I N G S

2

Afternoon Session

3

1:15 p.m.

4

JUDGE WELSCH:

5

Ms. Clark, I'll remind you you're still under

6
7

Let's go back on the record.

oath.
Ms. Gunnin, your witness.

8

---o0o---

9

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

CARLIN ASSOCIATES

(216) 226-8157

85

1

with killer whales, they need to have a certain number

2

of years of experience.

3

When they come to the stadium, the first

4

thing we do is we teach people how to move about the

5

stadium, we show them where our protocols are, and they

6

are assigned a mentor from the very beginning, and the

7

mentor is somebody who has been training killer whales

8

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

CARLIN ASSOCIATES

(216) 226-8157

86

1

Before a trainer ever approaches a pool with a

2

killer whale, they have learned a lot about behavior,

3

they have learned about killer whale natural history,

4

they have learned about how to walk about the area on

5

the different surfaces that we have, they have learned

6

about how you carry buckets, and that's all before ever

7

approaching within ten feet of the pool.

8

So, we spend a whole lot of the time talking about

9

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

CARLIN ASSOCIATES

(216) 226-8157

87

1

ourselves.

2

person has to be qualified to be watching the

3

interaction.

4

We always have somebody with us, and that

We call that person a spotter.

A spotter has a

5

whole series of training and protocols to pass before

6

becoming qualified to even be a spotter, to be able to

7

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.

CARLIN ASSOCIATES

(216) 226-8157

88

1
2

which would be at least three years of experience.
Q.

And, maybe for the Judge explain what would

3

be an close interaction with the killer whale?

4

does that mean?

5

A.

What

A close interaction with a killer whale, what

6

I would call a close interaction with a killer whale

7

anywhere within five feet, within five feet of the

8

killer whale.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

89

1

individual to be being a spotter.

They have to be able

2

to recognize as much about behavior as the person

3

interacting with the killer whale.

4

And those spotters are at different levels,

5

depending on the experience level of the trainer doing

6

the interactions.

7

less experience the spotter is allowed to be.

8

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

CARLIN ASSOCIATES

(216) 226-8157

90

1

the control trainer for the killer whale I'm interacting

2

with, and there might be another control trainer for

3

another killer whale, and we would have a spotter

4

trainer who is not interacting with the killer whale who

5

is watching over the interaction.

6
7

JUDGE WELSCH:

The spotter is watching over both

trainers?

8

THE WITNESS:

9

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.

CARLIN ASSOCIATES

(216) 226-8157

91

1

JUDGE WELSCH:

During show times, is this setup

2

you have described in terms of -- I assume you have more

3

than one killer whale involved in the show at the same

4

time.

5

killer whales, and then you would have a spotter?

6

that the way it works during the show?

7

So, you would have a trainer for each of the

THE WITNESS:

Is

Let me make it really clear.

I

8

really wanted to expand on this a little earlier, but

9

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.

CARLIN ASSOCIATES

(216) 226-8157

92

1

BY MS. GUNNIN:

2

Q.

How about with Tilikum?

What is the

3

difference in the protocols with regard to spotters for

4

Tilikum?

5

A.

Tilikum has always had his own set of

6

protocols.

7

Basically, that facility reached out to us and said, "We

8

think you are the right place to manage this killer

9

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

CARLIN ASSOCIATES

(216) 226-8157

That

93

1

him?

2

A.

Absolutely not.

Are you talking currently?

3

Q.

At the time of the incident on February 24th.

4

A.

No, absolutely not.

Only the most

5

experienced group of trainers work with Tilikum, and in

6

order to become a member of Tilikum's team, which are

7

the people who actually physically work with him, you

8

would have to go through a lot more training and show

9

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

CARLIN ASSOCIATES

(216) 226-8157

94

1

couple of times.

2

understanding of what that means, can you define what

3

you're talking about when you say "reinforcement

4

history"?

5

A.

Sure.

Just so the Judge has a clear

A reinforcement history is basically a

6

history of oral interactions -- if I'm talking about a

7

person's reinforcement history with an animal, I'm

8

talking about all the interactions that Ms. Brancheau

9

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,

CARLIN ASSOCIATES

(216) 226-8157

95

1

but I'll let Ms. Gunnin ask you some questions.

2

BY MS. GUNNIN:

3

Q.

Ms. Clark, with regard to Tilikum, when

4

you're talking about his positive reinforcement history,

5

what kinds of things would have indicated to Sea World

6

that there was a positive reinforcement history with

7

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.

CARLIN ASSOCIATES

(216) 226-8157

I mean

96

1

that's --

2

Q.

When did Tilikum come to the Orlando park?

3

A.

I would say 1992.

4

Q.

And, when he arrived and since you have cared

5

for him, what kind of close contact interactions would

6

you do with Tilikum?

7

A.

When he first arrived, we assessed his

8

behavior in our environment as the right thing to do.

9

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

CARLIN ASSOCIATES

(216) 226-8157

97

1

least two trainers plus a spotter trainer.

2

person was responsible for asking Tilikum to target the

3

top half of his rostrum on the one hand and the bottom

4

half of his jaw on the other.

5

So, one

So, we were asking him to maintain this

6

position with his mouth like this (demonstrating), one

7

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

CARLIN ASSOCIATES

(216) 226-8157

98

1

and pull pack and then you retrieve that sample for the

2

veterinarian, or you can leave the tube open and hydrate

3

the animal or pour the solution straight into his

4

stomach.

5

behavior for years.

6

JUDGE WELSCH:

7

So, we conditioned him, and he performed the

Why would you do the latter?

I

understand the first concept --

8

THE WITNESS:

Getting the sample?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

We could

99

1

culture his teeth, and we could do dental work on his

2

teeth, we cleaned his teeth.

3

We were able to look very closely at

4

Tilikum's eyes and collect tear samples from his eyes.

5

We were able to collect a culture of his blow hole as

6

well as a sample of his blow.

7

Moving back, we did full, full body exams on

8

the animal each and every day.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

100

1
2

Are the animal trainers involved in those aspects?
THE WITNESS:

Yes, absolutely.

We're involved

3

in the training of the behavior, and we're also involved

4

in the collection of the samples, depending on what the

5

sample is that's being collected.

6

JUDGE WELSCH:

For the veterinarian.

7

THE WITNESS:

For the veterinarian.

We're

8

basically, the veterinarian's assistants.

We train the

9

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.

CARLIN ASSOCIATES

(216) 226-8157

The

101

1

citation goes to the shows that involve the animal

2

trainers is the way the citation goes.

3

MS. GUNNIN:

And, what we are trying to show,

4

Your Honor, is that the close interactions that the

5

trainers have during the shows are very similar to all

6

of the close interactions, and that the Secretary takes

7

the position that you can do all of these certain types

8

of close interactions, but you can't do these, it would

9

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

CARLIN ASSOCIATES

(216) 226-8157

102

1

JUDGE WELSCH:

Mr. Black, you were trying to say

2

something.

3

evidence because I haven't decided yet as to how

4

limiting the citation is.

5

I'm going to allow Sea World to put on this

I understand the Secretary's position that you are

6

limited strictly to the animal trainers in the

7

performances, I guess is the way you're interpreting the

8

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

CARLIN ASSOCIATES

(216) 226-8157

103

1

because the hazard is everywhere, but we're only talking

2

about the hazard during show performances.

3

We recognize that there is a hazard at other times

4

in our opinion, but we haven't asked them to abate in

5

our citation, haven't said you need to stop ever getting

6

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

CARLIN ASSOCIATES

(216) 226-8157

104

1
2

we don't have the expertise to -MS. GUNNIN:

Judge, if I could just make one

3

last offer.

4

the Secretary include protected contact or physical

5

barriers.

6

performances.

7

suggested isn't limiting.

8

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

CARLIN ASSOCIATES

(216) 226-8157

105

1

record so I understood where the Secretary is coming

2

from and I wanted to understand where the Company is

3

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.

8

MR. BLACK:

9

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.

Thank you, Your Honor.
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

CARLIN ASSOCIATES

(216) 226-8157

106

1

now to help you understand reinforcement history, help

2

you understand husbandry, and help you understand the

3

shows, because it just came to me sitting here with

4

Tilikum.

5

While I would not perform a gastric tube

6

behavior to my audience, I would several times in the

7

show, if I was working on getting the gastric tubes

8

trained, I would take many opportunities during the show

9

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.

I

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

CARLIN ASSOCIATES

(216) 226-8157

107

1

reinforcement history with holding the mouth open.

2

that would contribute to the success of the procedures

3

in the back.

4

And,

So, I use every single opportunity when I'm

5

working with the whale, be it a show or be it a body

6

exam, when I'm working on a particular behavior, I will

7

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

CARLIN ASSOCIATES

The signal for

(216) 226-8157

108

1

that behavior is completely different than the behavior

2

of me asking them to maintain contact.

3

This is not a behavior -- if I'm asking them to

4

maintain contact with me with their mouth open, this

5

isn't a behavior I would expect the audience to really

6

appreciate to photograph.

7

environment to rehearse -- that's a better word for you

8

to understand -- to rehearse this part of this behavior

9

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.

CARLIN ASSOCIATES

We will ask for

(216) 226-8157

109

1

the reinforcement history of the behavior a lot during

2

shows, and I could list pretty much every husbandry

3

behavior that we do.

4

it during the shows.

5

BY MS. GUNNIN:

6

Q.

7

I find opportunities to reinforce

Can you draw a bright line between what is

purely a show behavior and what is a husbandry behavior?

8

A.

9

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

CARLIN ASSOCIATES

(216) 226-8157

110

1

show.

2

Q.

Was the show concluded at that point?

3

A.

Yes, I would define the conclusion of the

4

show as when the guests are thanked for coming in.

5

Tilikum was still in the pool, Dawn was doing a fun

6

relationship building interaction with him following a

7

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.

CARLIN ASSOCIATES

(216) 226-8157

111

1

It didn't have the fanfare of a show performance,

2

and I'm having a hard time with the definition of show

3

performances.

4

the difference.

5

It was more of a -- it doesn't have the fanfare, it

6

doesn't have the music soundtrack, it doesn't have as

7

many whales performing in it.

8

anything from our breeding program, to do training, to

9

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.

I

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

CARLIN ASSOCIATES

(216) 226-8157

112

1

than they've ever done before, I have the opportunity to

2

say, "Okay, I'm going to spend some time with this

3

animal," and the show doesn't go on.

4

but the entertainment is now around my establishing more

5

reinforcement history with the animal.

6

happen at any time.

7

Q.

The show goes on,

So, it can

In terms of the show itself, do the trainers

8

have any ability to not interact with the killer whales

9

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

CARLIN ASSOCIATES

(216) 226-8157

113

1

doesn't happen every time at the show.

2

And we talk to them about killer whale

3

behavior, what we're seeing right now, and we're going

4

to let them be killer whales.

5

activity, sometimes it will be social altercation, and

6

we step away.

7

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

CARLIN ASSOCIATES

(216) 226-8157

114

1

potential to be dangerous.

2

of large animals that have the potential to be

3

dangerous.

4

people have at least seen video of what they're capable

5

of doing.

6

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

7

or you would be putting yourself in danger.

8

trainers how to move around the killer whales.

9

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

CARLIN ASSOCIATES

(216) 226-8157

115

1

them to complete history of behavioral and reinforcement

2

history of the killer whale that they might be

3

interacting with.

4

Then, I talk to them about killer whales in

5

general.

I talk to them about these behaviors that we

6

have referred to before, precursor behaviors that we

7

were talking about earlier.

8

that we recognize before undesirable behavior has

9

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.

CARLIN ASSOCIATES

(216) 226-8157

116

1

JUDGE WELSCH:

Overruled.

Go ahead.

2

BY MS. GUNNIN:

3

Q.

4

JUDGE WELSCH:

Go ahead.

5

THE WITNESS:

Thank you.

6

If I'm remembering what you're referring to, I

You can answer.

7

made it clear that it's an expectation.

8

hope.

9

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

CARLIN ASSOCIATES

(216) 226-8157

117

1

interaction is within five feet?

2

THE WITNESS:

Yes, sir, and I would say that --

3

JUDGE WELSCH:

That's what you described the

4
5

last time as close interactions?
THE WITNESS:

Yes.

I would say that I would

6

include in at least eight of those interactions being

7

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

CARLIN ASSOCIATES

(216) 226-8157

118

1

themselves in a situation that they would rather not be

2

in, that they are to remain calm, cool and collected.

3

We teach them a lot about what we call differential

4

reinforcement of other behavior and differential

5

reinforcement of incompatible behavior.

6

about keeping an animal, given all of their history with

7

that animal in the front of their mind as they're

8

interacting with them if they're in that situation.

9

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

CARLIN ASSOCIATES

(216) 226-8157

119

1

focusing on the training for the trainers.

2

But, the whales are trained on a series of

3

behaviors that are a lengthy enforcement history.

4

is a great place again for me to talk to about

5

rehearsing the correct response to a signal during a

6

show.

7

This

We have a signal that means "come to me."

8

It's either a slap on the surface of the water, we also

9

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

CARLIN ASSOCIATES

(216) 226-8157

120

1

So, the constant rehearsal of this behavior,

2

"come away from the trainer and come to me," contributes

3

to a positive outcome.

4
5

Q.

How about any type of emergency procedures

that you may have?

6

A.

If our first -- if our training doesn't bring

7

the whale over to us, we will enact a series of

8

behaviors that are rehearsed also.

9

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

CARLIN ASSOCIATES

(216) 226-8157

121

1

with killer whales alone, and I think their safety is in

2

everybody's hands.

3

safety is in my hands, and I equip the management team

4

with whales they need to train the trainers to be safe,

5

and I equip the trainers themselves, so they're not -- I

6

understand the language on that document, I understand

7

why it was phrased the way it was phrased.

8

certainly, they are not on their own.

9

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.

CARLIN ASSOCIATES

We've run a safe ship

(216) 226-8157

122

1

for a long time, and every time we evaluate, we look

2

back, and if we make a change that is around safety,

3

it's for a really good reason.

4

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

8

protocol around Tilikum after a homeless man wound up in

9

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.

CARLIN ASSOCIATES

(216) 226-8157

123

1

JUDGE WELSCH:

Restate your question.

2

THE WITNESS:

Honestly, not to characterize, a

3

gentleman ended up in Tilikum's pool over night.

He was

4

fed in the morning, and that shocked and shook us.

5

did not know the events leading up to his death, we did

6

not know anything other than Tilikum had him.

We

7

JUDGE WELSCH:

When was this?

8

THE WITNESS:

1998 or '9.

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

CARLIN ASSOCIATES

(216) 226-8157

We

124

1

our hands into his mouth might be putting us into a

2

vulnerable position.

3

behavior and hydrated him by using gelatin after that.

4

So we dropped the gastric tube

So security changed, and our protocols around

5

Tilikum changed.

6

arrival are still in effect today, but we made changes

7

after that event.

8

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

I

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

CARLIN ASSOCIATES

(216) 226-8157

125

1

approach to working with killer whales in the water.

2

just 25 years, the safety, the protocols that we

3

train -- what we train our animals to do and what

4

they're capable of learning and understanding and

5

getting a reinforcement history of has expanded greatly.

6

In

When we were doing water work, water interactions

7

with the animals, performing with them in shows, doing

8

sessions, about 25 years ago, 26 years, 28 years ago, we

9

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.

CARLIN ASSOCIATES

An already safe

(216) 226-8157

126

1

environment has become safer over the years, learning

2

more about training them and interacting with them.

3

BY MS. GUNNIN:

4

Q.

How about water de-sense?

5

A.

That's actually what I was just referring to.

What is that term?

6

Water desensitization covers more than just a behavior.

7

I was just explaining the behavior we ask them to do

8

should they become separated from their trainer, but it

9

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

CARLIN ASSOCIATES

(216) 226-8157

127

1

they're still maintaining that perimeter.

2

going out to the middle of the pool and maintaining that

3

perimeter.

4

There's so much reinforcement history with that, and

5

it's reinforced over and over again in the shows that

6

when called upon as a behavior, we go into a behavior

7

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

CARLIN ASSOCIATES

(216) 226-8157

128

1

behaviors that we train with them in the water most

2

importantly being rewarded or reinforced for moving away

3

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

7

incorporated in water work and there's water work

8

incorporated in desensitization.

9

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

CARLIN ASSOCIATES

(216) 226-8157

129

1

chances are an animal can increase the frequency of a

2

behavior prior to or decrease the frequency of behavior

3

prior, depending on the consequences of that behavior.

4

When you're driving and you are driving at an

5

excessive speed and you get a speeding ticket as a

6

consequence of driving at an excessive speed, it's going

7

to decrease the frequency of the behavior.

8

get a ticket, you might increase the frequency of the

9

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.

CARLIN ASSOCIATES

(216) 226-8157

I kind of
We call the

130

1

steps approximations.

2

training the perimeter swim, the first step of that

3

behavior is asking the animal to go from Point A to

4

Point B, and then we will ask them to go past the

5

trainer, and then we'll ask them to go past the trainer

6

while something else is happening in the environment.

7

So, when I was talking about

So, these are all individual steps of

8

behavior, and each individual step is an opportunity to

9

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

CARLIN ASSOCIATES

(216) 226-8157

131

1

them, to understand what's going on behaviorally, and

2

we're in very close contact with them.

3

that we should be fully immersed with them to take care

4

of them.

5

Q.

I would argue

Why would you argue that you need to be fully

6

immersed with them?

By that, you mean you need to be in

7

the water with the killer whales?

8

A.

Yes.

9

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.

CARLIN ASSOCIATES

She was the first

(216) 226-8157

132

1

Trainers who interacted with her on a daily

2

basis knew her, knew her idiosyncrasies.

3

how to explain it to you.

4

do you have a dog?

5

killer whales.

6

before, showed us.

7

perform behaviors a little bit differently in the water

8

with us.

9

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

CARLIN ASSOCIATES

(216) 226-8157

133

1

them.

2

perform those ultrasounds as we would have been.

3

had a very large calf, and I think we would have had

4

some indicators that might have helped us.

5

We were not able to get as close to Kiema to

Q.

Kiema

Ms. Clark, I just have one more question for

6

you.

You mentioned something about Loro Parque, and I

7

just want to clarify for the Judge.

8

owned by Sea World in any way?

Is that a park

9

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

(Whereupon, a short recess

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

Let's go on the record.

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.

CARLIN ASSOCIATES

You refer to yourself

(216) 226-8157

134

1

as a behaviorist.

2

coming to Sea World?

3

World for 25 years.

4

What was your background before

THE WITNESS:

You said you have been at Sea

I graduated from Ohio State

5

University in 1987.

6

JUDGE WELSCH:

In what area?

7

THE WITNESS:

Animal science.

8

JUDGE WELSCH:

Animal science?

9

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

CARLIN ASSOCIATES

(216) 226-8157

135

1

courses in college that approached behavior as a

2

science.

3

around my animal science degree.

4

I had behavioral science courses in college

But, really, 25 years of exposure to the craft and

5

reading outside materials, attending conferences and

6

leading work shops myself has contributed to my

7

expertise.

8

JUDGE WELSCH:

9

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

CARLIN ASSOCIATES

(216) 226-8157

136

1

the animal training at the park.

2

for the development of a team of animal trainers who

3

take care of those animal.

4

JUDGE WELSCH:

I'm also responsible

When you say the animal training

5

in the park, that's the animals in addition to the

6

killer whales; not just the killer whales?

7

THE WITNESS:

Right.

8

JUDGE WELSCH:

You have the sea lions and you

9

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.

CARLIN ASSOCIATES

(216) 226-8157

137

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?

7

THE WITNESS:

There is a layer of supervisors.

8

JUDGE WELSCH:

You were a supervisor at one

9

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

CARLIN ASSOCIATES

They communicate

(216) 226-8157

They also plan

138

1

working with.

2

deciding what kind of interactions each animal is going

3

to have each day, and what interactions will contribute

4

most to the animal's development and to the people's

5

development in that area.

6

JUDGE WELSCH:

7

They're responsible for planning the day,

So there's a supervisor for the

killer whales?

8

THE WITNESS:

Yes, there is.

9

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,

CARLIN ASSOCIATES

(216) 226-8157

139

1

but they don't all interact with killer whales.

2

If you're talking about the shows as far as the

3

production, there are trainers that are not yet capable,

4

they are not yet equipped well enough to make decisions

5

with the killer whales that are still in support roles

6

that are still being mentored.

7

they will provide show support. They will perform lines

8

in the show, they will open and close the pool door of

9

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.

CARLIN ASSOCIATES

(216) 226-8157

140

1

JUDGE WELSCH:

And, the actual training that's

2

provided to the animal trainers, does that fall upon

3

your office as curator, or the supervisors for the

4

killer whales?

5

Who actually does the training?

THE WITNESS:

Ultimately, I set up programs for

6

the trainers, and I oversee the assistant curators who

7

will supervise the implementation of our extensive

8

training program.

9

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

CARLIN ASSOCIATES

(216) 226-8157

141

1

suit, it's probably right now bi-monthly.

2

that for you?

Can I define

3

JUDGE WELSCH:

Yes.

4

THE WITNESS:

You're talking about actually

5

physically being in my wet suit and having interaction,

6

at the stadium daily overseeing and watching behavior?

7

JUDGE WELSCH:

I guess what I was getting at is

8

you're more involved with interaction with the animal

9

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

CARLIN ASSOCIATES

(216) 226-8157

142

1
2

to us by the operations department.
JUDGE WELSCH:

3

the animal trainers.

4

show, or --

That's what I was asking about
Do all 26 participate in each

5

THE WITNESS:

No.

6

JUDGE WELSCH:

They're kind of spread out based

7

on the schedules; you schedule them?

8

THE WITNESS:

Right.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

143

1
2

While precursive behavior can be tied to anything.
Precursive behavior is you've got a sniffle in

3

your nose, then you know the next behavior might be a

4

sneeze.

5

So, there's a series of behaviors that we have

6

learned over our 45 years with killer whales, we have

7

associated those behaviors with particular behavior

8

responses that may happen next.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

144

1

JUDGE WELSCH:

Because you made some -- it

2

sounds like Tilikum might be a little bit different in

3

terms of his behavioral indications.

4

THE WITNESS:

Correct.

5

JUDGE WELSCH:

There's a little bit of

6

difference from him versus the other killer whales.

7

may be wrong, but can you give me examples that you're

8

using for aggression for the killer whales in terms of

9

precursors?

10

THE WITNESS:

Sure.

I

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?

CARLIN ASSOCIATES

(216) 226-8157

145

1

THE WITNESS:

Correct.

2

JUDGE WELSCH:

What are those precursors?

3

THE WITNESS:

I would describe it as any time a

4

killer whale puts their head down, they no longer have

5

contact with the trainer; no longer have eye contact

6

with the trainer, putting their head down, vocalizing,

7

opening their eyes wider, opening their mouth towards

8

another animal, opening their mouth different than when

9

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?

CARLIN ASSOCIATES

If you saw one of the

(216) 226-8157

146

1

THE WITNESS:

My first response is to remain

2

calm, cool and collected, assess every single thing

3

that's going on in the environment and come up with a

4

behavior solution to the situation I'm in, whether that

5

be my own behavior, stepping back and try or asking the

6

animal to perform another behavior while remaining calm,

7

cool and collected while I'm in the water.

8

JUDGE WELSCH:

I guess I'm assuming that there's

9

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.

CARLIN ASSOCIATES

(216) 226-8157

147

1
2
3
4

JUDGE WELSCH:

You're talking about me as a

whale?
THE WITNESS:

I'm talking about you as a

trainer.

5

JUDGE WELSCH:

I just wanted to make sure.

6

THE WITNESS:

I wouldn't call you a whale.

7

In animal training, it's just interaction and it

8

has gone well, and it's wrapped up and I'm talking to

9

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

CARLIN ASSOCIATES

(216) 226-8157

148

1
2

pool door, what would the decision be?"
And then, I would expect you to give me some

3

behavioral decisions you would have made.

4

would have done the first time, how you would have

5

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

CARLIN ASSOCIATES

(216) 226-8157

149

1

very thoroughly based upon your years of experience and

2

your background, but some other animal trainer, not that

3

you're animal trainer, but an animal trainer that's been

4

there four years, isn't that -- I guess what I'm trying

5

to say is, isn't that a lot of calculations that

6

somebody that maybe -- I don't know if Sea World hires

7

any of these kinds of people but people who just want a

8

job.

9

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 --

CARLIN ASSOCIATES

(216) 226-8157

150

1

that person will never be within ten feet of Tilikum,

2

and that person that you're describing to me, if they

3

lasted five years, has to be passionate about something.

4

I can talk to you about what an animal trainer's

5

life is like.

6

passionate about our craft.

7

working 24 hours a day, seven days week, and the trainer

8

you just described to me really doesn't exist at Shamu

9

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

CARLIN ASSOCIATES

(216) 226-8157

151

1

know the reinforcement history of a few whales; one,

2

maybe two.

3

you're capable, you work more whales.

4

like any other craft.

5

you will take more --

As your experience grows and you have proven
You know, it's

As you gain more experience, then

6

JUDGE WELSCH:

So, if I'm an animal trainer one.

7

THE WITNESS:

Senior Trainer 1.

8

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

CARLIN ASSOCIATES

(216) 226-8157

152

1

deal with Tilikum except for that group?

2

THE WITNESS:

Yes.

3

JUDGE WELSCH:

That's the way it works?

4

THE WITNESS:

Yes.

5

JUDGE WELSCH:

Did I understand you to say in

6

response to Counsel's question, that in terms of the

7

accident on February 24th involving Ms. Brancheau, that

8

you have not determined any precursors to that behavior?

9

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

CARLIN ASSOCIATES

(216) 226-8157

153

1

activity going on with Tilikum was what you have defined

2

as the dry work?

3

THE WITNESS:

Yes.

4

JUDGE WELSCH:

No water work was being performed

5

with Tilikum?

6

THE WITNESS:

We were doing limited exposure

7

water work with Tilikum.

8

you.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

154

1

THE WITNESS:

Not within the show.

2

JUDGE WELSCH:

Thank you.

3

the questions I have.

4

Mr. Black?

5

MR. BLACK:

I think that's all

Thank you.

6

---o0o---

7

REDIRECT EXAMINATION

8

BY MR. BLACK:

9

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

CARLIN ASSOCIATES

(216) 226-8157

155

1

our environment that we can walk in up to the knee level

2

and still I would consider it dry interaction.

3
4

JUDGE WELSCH:

Is that part of the show, those

areas you're talking about?

5

THE WITNESS:

Those areas are in the show.

6

They're in the back pools.

7

it clear that I'm talking about the depth of the water,

8

not the person sitting, standing or kneeling in that

9

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

CARLIN ASSOCIATES

(216) 226-8157

156

1

the killer whale Kalina, right?

I know that was a

2

difficult topic for you, so I'm not bringing this up to

3

be in any way difficult.

4

A.

Thank you.

5

Q.

Close contact, what do you mean by close

6

contact?

7

A.

Yes, I do.

8

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

CARLIN ASSOCIATES

(216) 226-8157

157

1

examination would have been voluntary blood draw, and it

2

would have indicated very early on before any other

3

behavioral changes.

4

There's a lot of behavioral changes when an

5

animal is under the weather.

6

they are distant from their group.

7

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

(216) 226-8157

158

1

Q.

But, you weren't the veterinarian?

2

A.

I was fully briefed on what caused Kalina's

3
4

death.
Q.

Had Kalina survived, there is no way to know

5

whether trainers, other trainers might have been hurt or

6

even died if they had been in the water or Kalina or

7

other killer whales, right?

8

too, right?

9

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

(216) 226-8157

159

1

the question.

2

Q.

Now, Sea World not only has decided to stay

3

out of the water with all of its whales for the last

4

19 months, but also even before that, had decided at

5

various times not to go in the water with certain

6

specific whales, right?

7

A.

Yes.

8

Q.

Tilikum, for example?

9

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

CARLIN ASSOCIATES

(216) 226-8157

160

1

water interaction, we start at a pretty young age.

2

teach them a whole series of behaviors that we describe

3

as etiquette behaviors.

4

close to us, we teach them how to approach us.

5

We

We teach them to not come too

So, with Tilikum, there was no question due

6

to his size and his history, that we weren't going to be

7

doing water work with him.

8

Mr. Black is referring to or both animals that after

9

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

CARLIN ASSOCIATES

(216) 226-8157

161

1

performing close contact behavior with those whales

2

until the 24th.

3

JUDGE WELSCH:

Those two whales in California?

4

THE WITNESS:

Yes.

5

JUDGE WELSCH:

Not water work but close contact

THE WITNESS:

Yes, and they were doing the same

6
7

work?

8

kind of in-water interaction with those two whales that

9

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

(216) 226-8157

162

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?

4

A.

We could.

5

Q.

So, if you needed to have that close contact

6

with your whales today and be able to evaluate them, you

7

could put them in the medical pool and raise up the lift

8

board to have that close contact?

9

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

CARLIN ASSOCIATES

(216) 226-8157

163

1

differences that they had previously noticed in the

2

water with those whales, right?

3
4
5

A.

They didn't have access to as much

information.
Q.

Is that what you're asking me?

Yes, because Sea World decided that the risk

6

with these whales was greater than could be gained in

7

benefit from having that close interaction to evaluate

8

them, right?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

164

1

Q.

And, at the time that those whales died, Sea

2

World was in the water doing water work with most of

3

those whales, weren't they?

4

A.

I would have to look back.

5

Q.

That sounds right, doesn't it?

6

A.

I know there were some that we weren't doing

7

work with and some that we were doing extensive water

8

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?

CARLIN ASSOCIATES

(216) 226-8157

165

1

A.

No, we don't.

2

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

5

all the indicators that we have had access to before.

6

We don't have the indicators because we're not as close

7

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

CARLIN ASSOCIATES

(216) 226-8157

166

1

Loro Parque?

2

A.

Yes.

3

Q.

And, at least up until Ms. Brancheau's death,

4

Sea World provided supervision at that park to the

5

trainers who work with the killer whales, right?

6

MS. GUNNIN:

Judge, I'm going to object.

7

There is no foundation for the supervision at Loro

8

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?

CARLIN ASSOCIATES

(216) 226-8157

167

1

A.

Right.

2

Q.

That Sea World trainer was actually involved

3

as the supervisor during the interaction, right?

4

A.

Again, he was the most experienced trainer.

5

I do know a lot about the incident itself because I was

6

the contributing -- me and my team contributed to Sea

7

World Orlando's response in that corporate report, but I

8

don't know the details of the reporting structure over

9

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.

CARLIN ASSOCIATES

(216) 226-8157

168

1

Q.

Now, you talked about operant conditioning

2

and those small individual steps involved in training

3

toward a behavior; do you recall that?

4

A.

Yes.

5

Q.

And, killer whales when they go off behavior,

6

when they do what is not wanted, perhaps aggressively,

7

perhaps undesirably, as you say Tilikum did, they don't

8

always follow small individual steps in going off

9

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

CARLIN ASSOCIATES

(216) 226-8157

169

1

years attached to undesirable behavior, and they could

2

perform one of those behaviors, they could perform three

3

of them, they could perform eleven of them and never

4

exhibit undesirable behavior, or they maybe perform

5

three or four, one, six of them and then perform an

6

undesirable behavior.

7
8
9

So, oftentimes there are steps toward the
undesirable behavior.
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

CARLIN ASSOCIATES

(216) 226-8157

170

1

going back to whether Tilikum's behavior was completely

2

unexpected.

3

define a precursor as always being one of these teeny,

4

tiny steps you take in training a whale to perform the

5

behavior that they're performing.

6

A.

I was just asking you whether you would

I'm having a real hard time with you talking

7

about approximations and telling me you want me to lay

8

that over precursors and undesirable behavior.

9

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

CARLIN ASSOCIATES

I talked about breaking

(216) 226-8157

171

1

used in my testimony was the alphabet.

2

steps being broken down.

3

We talked about

But, again, I just have a hard time with -- I

4

mean, what are you asking me?

Are you asking me if the

5

same steps that I take when I'm training a behavior --

6

the gastric tube is something we've talked about -- one

7

step is asking him to open his mouth, another step is

8

asking him to hold his mouth open for a greater period

9

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?

CARLIN ASSOCIATES

(216) 226-8157

172

1

A.

Yes.

2

Q.

And, with Tilikum you haven't done water

3

de-sense to where he was trained to ignore the trainers

4

in the water, right?

5

A.

Tilikum was trained on the perimeter

6

swimming, he was trained to ignore trainers.

7

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 --

CARLIN ASSOCIATES

(216) 226-8157

173

1

A.

We used his previous history, a history that

2

we didn't have a full picture of to set up a protocol

3

when he first came to us.

4

Q.

So, I take it that your answer to my question

5

is not waiting until you had that de-sensing to interact

6

with Tilikum.

7

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,

CARLIN ASSOCIATES

(216) 226-8157

174

1

right?

2

A.

Yes.

3

Q.

Safety protocol.

4

A.

Safety protocol, yes, for in-water

5
6

interaction, right.
Q.

And, despite Tilikum not being water

7

de-sensed, you still allowed trainers, Dawn, to work

8

right next to Tilikum, correct?

9

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

CARLIN ASSOCIATES

(216) 226-8157

175

1

talking about the 1999 incident with the person who

2

either stayed in the park after hours or snuck into the

3

park.

His name was Daniel Dukes, right?

4

A.

Right.

5

Q.

And, I just want to clarify something.

You

6

were talking about no longer doing gastric intubation,

7

is that what it was, of Tilikum?

8

A.

Yes.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

176

1

Q.

Are you disagreeing or not liking me calling

2

it a behavior?

3

A.

No, I have no problem with you calling it a

4

behavior, but I just expected you to turn around and say

5

did you on such-and-such a date collect a sample from

6

Tilikum via a tube, but you didn't.

7

Q.

So, you stopped doing the gastric intubation.

8

Are you saying that had nothing to do with safety

9

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.

CARLIN ASSOCIATES

(216) 226-8157

We would not

177

1
2

Q.

Because of the risks, the safety risks to it

outweigh the benefits from it?

3

A.

(No audible response).

4

Q.

That's what Sea World decided, right?

5

A.

Yes.

6

Q.

Now, you have talked about your management

7

team and trainers and the document they sign, the one

8

page I showed you during your examination this morning;

9

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

CARLIN ASSOCIATES

(216) 226-8157

178

1

recollection as to why you say you understood or

2

understand why the document was phrased the way it's

3

phrased?

4

A.

I want to answer you in the context -- and,

5

I'm sorry, but I don't remember what Ms. Gunnin asked

6

me.

7

Q.

Maybe I'll ask a different question then.

8

A.

Okay.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

179

1

Q.

Right.

2

A.

And saying, "I know this.

By signing, I know

3

this."

In the next sentence they're saying, "I

4

understand my skills and experience application of

5

training techniques paired with my ability to provide

6

..."

7

here.

8

what we're saying they have read.

Your ability to evaluate animal behavior is not in
That's why it says "paired with."

9

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.

CARLIN ASSOCIATES

(216) 226-8157

180

1

Q.

And its says, "I agree to communicate with my

2

supervisor if I become uncomfortable with or unable to

3

take the calculated risks," right?

4

A.

What that is speaking to is that we have a

5

completely open door policy about any and all safety

6

concerns.

7

a cord in the environment to interacting with killer

8

whales, they can approach anybody all the way up to the

9

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."

CARLIN ASSOCIATES

(216) 226-8157

181

1

Q.

Well --

2

A.

On the other hand, it also says if you can't

3

prove that you're capable of doing this, you might well

4

be denied interactions, and that happens as well.

5

So, my management team both receives requests

6

to not interact, and they also limit interactions based

7

on a person's capability and preparedness to interact

8

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

CARLIN ASSOCIATES

(216) 226-8157

182

1

interaction with killer whales.

2

Q.

And, then, you get them to sign the last

4

A.

And, the volumes and volumes are tracked in a

5

different way.

6

There's something we haven't seen today that I don't

7

even know the title of the document, but it's basically

8

a check-off sheet.

3

9

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

CARLIN ASSOCIATES

(216) 226-8157

183

1

other point in time?

2

asking?

3

THE WITNESS:

Do you understand the question I'm

Yes, I do understand the question

4

you're asking, and it's done from the time they complete

5

this document and annually thereafter; my review of this

6

document.

7
8

JUDGE WELSCH:

Is it signed any further?

Is it

Well, it became a sheet.

There's

signed again?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

184

1

BY MR. BLACK:

2

Q.

3

With that same language that's on the last

page of it?

4

A.

No.

5

Q.

Just the first time they review it, they sign

6

it, that language on last page, or you're not sure?

7

A.

I'm not sure.

8

Q.

I want to turn just for a second back to

9

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.

CARLIN ASSOCIATES

(216) 226-8157

185

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

4

carefully outlines sequence of events.

5

all the behavior that led up to the event itself, we

6

talk about the environment, we talk about the trainer's

7

history with that animal, we talk about the animal's

8

history, we talk about the last interaction with the

9

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

CARLIN ASSOCIATES

(216) 226-8157

186

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

7

of explaining, "no," when not even asked for an

8

explanation, right?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

187

1

Q.

You gave some testimony about the

2

reinforcement history and how that relates to rehearsing

3

correct behavior with the whales and making it more

4

likely that they're going to perform correctly or

5

predictably the next time?

6

A.

Right.

You're saying rehearsed.

7

What I would say is reinforced.

8

opportunity to build a reinforcement history with an

9

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?

CARLIN ASSOCIATES

(216) 226-8157

188

1

A.

Come here.

2

Q.

And, the slap is something that is used to

3

get the whale to come here if you need the whale to come

4

here, right?

5

A.

Sure.

6

Q.

And, some of the times you need or want the

7

whale to come here is when the whale is doing something

8

undesirable or aggressive, correct?

9

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

CARLIN ASSOCIATES

(216) 226-8157

189

1

of those precursor behaviors as a trainer-spotter, and I

2

either think the trainer has not recognized that or the

3

trainer might move on to doing something, having

4

recognized it that I as a spotter am not comfortable

5

with, I can slap the water and the animal will likely

6

respond.

7

Q.

Well, you know that in some notable incidents

8

that Sea World has had that trainers at stage or

9

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.

I

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.

CARLIN ASSOCIATES

(216) 226-8157

190

1

The Kasatka incident in 2006 with Ken Peters,

2

the whale did not respond to repeated recall slaps,

3

right?

4

A.

And, those recall slaps were given when the

5

whale was engaged in unwanted behavior.

6

to condition our trainers when things are asked about it

7

how you respond when you're in an undesirable situation.

8

When the animal is engaged in behavior that's

9

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

CARLIN ASSOCIATES

I'm

(216) 226-8157

191

1

understand that timing is very important when slapping

2

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?

5

A.

That happened in Texas.

6

Q.

Right, and recall slaps were not successful

7

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

CARLIN ASSOCIATES

(216) 226-8157

192

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.

8

BY MR. BLACK:

9

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?

CARLIN ASSOCIATES

(216) 226-8157

193

1

A.

It works very well when you recognize the

2

precursors to behavior.

3

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?

6

A.

In what --

7

Q.

The incident with Dawn, there wasn't any

8

opportunity for a recall slap to succeed with him, was

9

there?

10

A.

(No audible response).

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

undesirable behavior.
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?

CARLIN ASSOCIATES

(216) 226-8157

194

1
2

A.

Ms. Brancheau remained calm; is that what

you're asking me?

3

Q.

Yes, remained calm.

4

A.

She made the right decisions once she was in

5

the environment with him.

6

Q.

She made the right decisions once she was --

7

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?

CARLIN ASSOCIATES

(216) 226-8157

195

1

A.

Yes.

2

Q.

And, in fact, that might be the best choice

3

often if not always?

4

A.

Sure, yes.

5

Q.

Because sometimes the killer whales do what

6

they want to do, right?

7

A.

Yes.

8

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?

CARLIN ASSOCIATES

(216) 226-8157

196

1
2

A.

Tell me what you mean by killer whale

instinct.

3

Q.

Killer whales have a certain instinct?

4

A.

Animals have instinct, yes.

5

Q.

What would you define as instinct?

6

A.

Instinctive behavior.

7

Q.

Yes.

8

A.

That's not learned; not practiced.

9

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

Is that what you're asking me?

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

CARLIN ASSOCIATES

Does a mother

(216) 226-8157

197

1

bumping alongside of them?

2

Yes.

Instinctive behavior, I mean, there's a lot

3

out there.

4

wouldn't call instinctive behavior.

5

you're going to elaborate a little bit.

6

Q.

People will say instinctive behavior that I
So, I'm hoping

Well, I'm probably not going to elaborate in

7

the way that you want because I'm just asking you the

8

simple question whether instinctive behavior that killer

9

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?

CARLIN ASSOCIATES

(216) 226-8157

198

1

whether you agree.

2

A.

This, you're going to elaborate on?

3

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?

CARLIN ASSOCIATES

(216) 226-8157

199

1

A.

Correct.

2

Q.

But, Sea World is the one who chooses what

3

behaviors to exhibit or present to the shows, right?

4

A.

Yes.

5

Q.

And Sea World could choose not to present

6

husbandry behaviors at the shows and, in fact, does

7

choose often not to present husbandry behaviors at the

8

show?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

200

1

Q.

So, those shows are not something that is

2

essential to Sea World's business in order to stay in

3

business, right?

4

A.

No, but the behaviors that we do in the one

5

ocean show contribute to husbandry behaviors that we

6

execute in other areas, other times of the day.

7

Q.

But, you said a show, it's an opportunity to

8

help with the behaviors including husbandry behaviors,

9

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

CARLIN ASSOCIATES

(216) 226-8157

201

1

is that we have rehearsed the game or reinforcement

2

history, every single interaction we do with the animal.

3

Even if I wasn't asking for the animal to

4

open his mouth during the show, I'm interacting with the

5

animal and contributing to the reinforcement history

6

with that animal.

7

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

CARLIN ASSOCIATES

(216) 226-8157

202

1

nonshow environments where we can provide different

2

kinds of protections?

3

A.

You're asking me to speculate on something

4

that we have never done at Sea World.

5

me to come with up a number -- and don't know how, you

6

used the "number" term in there somewhere -- something

7

that we've never done before.

8

how that would impact the husbandry behaviors that we

9

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

CARLIN ASSOCIATES

(216) 226-8157

203

1
2

question he's asking.
THE WITNESS:

And still have the show?

I

3

thought you were asking me if that would affect the

4

ability to perform husbandry behaviors with killer

5

whales.

6

BY MR. BLACK:

7

Q.

Would it negatively affect so that you now

8

can say that it's impossible to take care of our whales

9

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,

CARLIN ASSOCIATES

(216) 226-8157

204

1

right?

2

A.

Each individual animal has an individual

3

reinforcement history an individual history, and his was

4

not such that any previous behavior indicated that he

5

would pull somebody into the water with him.

6

Q.

So, Sea World's position is that it's only

7

what the whale has done in the past that is going to

8

indicate what that particular whale is going to do in

9

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?

CARLIN ASSOCIATES

(216) 226-8157

205

1

A.

I have reviewed an incident report where a

2

trainer grabbed a piece -- a whale grabbed a piece of

3

clothing from the trainer and she ended up in the pool.

4

Q.

So, you know that whales are capable of

5

grabbing people from land and pulling them into the

6

water, right?

7

A.

Yes.

8

Q.

And, so you know this fact and, yet, you

9

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

CARLIN ASSOCIATES

(216) 226-8157

206

1
2

the water only to quickly let go of her.
Q.

And, you also talked about spotters and said

3

that the spotter's purpose was to be another set of

4

eyes; do you recall that?

5

A.

Yes.

6

Q.

And, so in Tilikum's case, the spotter would

7

be doing -- what was the purpose of the spotter in

8

Tilikum's case?

Same thing?

To be another set of eyes?

9

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

If he saw Tilikum holding

(216) 226-8157

207

1

Ms. Brancheau in the water, at that point his only

2

function as a spotter is to hit the recall tone and to

3

get help?

4

A.

Initiate emergency procedures.

5

MR. BLACK:

I have no further questions.

6

JUDGE WELSCH:

Thank you.

7

Ms. Clark, I will instruct you not to discuss your

8

testimony with other persons who may called later as

9

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.)

23
24
25

CARLIN ASSOCIATES

(216) 226-8157

208

1

C E R T I F I C A T E

2
3

I, NORMA CARLIN, a duly qualified and practicing

4

Court Reporter, do hereby certify that the foregoing

5

proceeding was recorded by me by means of recording in

6

the presence of all parties; that subsequent thereto, my

7

tapes were reduced to typewritten transcript under my

8

supervision; that the transcript herein is a true and

9

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.

13
14
15
16
17

BY:__________________________
Norma Carlin

18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

209

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

209

1
2
3
4

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

5
6
7
8
9
10
11
12
13

----------------------------------- x
)
)
SECRETARY OF LABOR,
)
)
Complainant,
)
)
-vs)
)
SEA WORLD OF FLORIDA, LLC,
)
)
Respondent,
)
)
)
------------------------------------x

14

OSHRC DOCKET
NO. 10-1705

TRANSCRIPT OF PROCEEDINGS
VOLUME II.

15
16

Before:

Judge Ken S. Welsch

17

Date:

Tuesday, September 20, 2011
9:00 a.m.

Place:

Siminole County Court House
1101 East First Street
Sanford, Florida 32771

18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

210

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

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

18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

211

1

I N D E X

2

WITNESSES

3

Name

4

Herrara
Schaber
Tompkins

5

Direct
213
256
352

6
7
8
9
10
11
12
13

Cross

Redirect

247
292
---o0o---

Recross

336
-

-

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

14
15
16
17
18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

212

1

P R O C E E D I N G S

2

Morning Session

3

9:00 a.m.

4

JUDGE WELSCH:

Let's go on the record.

5

This hearing is reconvened in the case of

6

Secretary of Labor versus Sea World of Florida, LLC.

7

Mr. Black, does the Secretary wish to call her

8
9

next witness?
MR. BLACK:

Yes, thank you, Your Honor.

10

The Secretary calls Mr. Fredy Herrara.

11

JUDGE WELSCH:

Mr. Herrara?

12

---o0o---

13

FREDY HERRARA,

14

having been first duly sworn, was

15

examined and testified as follows:

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

Your witness, Mr. Black.

CARLIN ASSOCIATES

(216) 226-8157

213

1

MR. BLACK:

Thank you, Your Honor.

2

---o0o---

3

DIRECT EXAMINATION

4

BY MR. BLACK:

5

Q.

Good morning, Mr. Herrara.

6

A.

Good morning.

7

Q.

I'm going to ask you some questions sort of

8

similar to what you had in your deposition taken in this

9

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.

CARLIN ASSOCIATES

(216) 226-8157

214

1
2

Q.

And, that was with the New York City Police

Department Transit Bureau?

3

A.

Yes, it was.

4

Q.

That was for 20 years?

5

A.

Yes, I did it for 20 years.

6

Q.

Now, in your position at Sea World, sometimes

7

you have worked at Shamu Stadium?

8

A.

Yes, I did, sir.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

215

1

Judge, may I approach to get this marked?

2

JUDGE WELSCH:

3

Yes.

(Whereupon Complainant's Exhibit C-2 was marked

4

for identification and entered into the record)

5

BY MR. BLACK:

6

Q.

Mr. Herrara, I've handed you what has been

7

marked for identification as Exhibit C-2, and you have

8

seen this map before, this Google map?

9

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

CARLIN ASSOCIATES

(216) 226-8157

216

1

picture from after the event or if it's a picture from

2

before the event.

3

MR. BLACK:

Judge, just so you know, we just

4

want to give a general layout of the way things are.

5

We're not doing anything other than trying to help the

6

Court understand directions to the extent that we look

7

at any close up.

8
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?

16
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

marked, was admitted into evidence)

23

BY MR. BLACK:

24

Q.

25

In Herrara, on this map at C-2, it shows the

Dine With Shamu pool?

CARLIN ASSOCIATES

(216) 226-8157

217

1

A.

Yes.

2

Q.

That's also known as the G pool as in the

3

letter G?

4

A.

Yes.

5

Q.

The Dine With Shamu pool, the G pool, is the

6

Are you asking me?

sort of dark rectangle near the top of that photograph?

7

A.

Yes, it is.

8

Q.

The darker blue.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

218

1

A.

Yes.

2

Q.

And, now, I guess can you indicate on the map

3

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.

6

JUDGE WELSCH:

Just draw a line to it or circle

7

it and draw a line out to the side and just write "Cove

8

Restaurant" and then your initials; put your initials

9

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.

CARLIN ASSOCIATES

(216) 226-8157

219

1

THE WITNESS:

2

BY MR. BLACK:

3

Q.

4

(Witness Complies)

And, on February 24, 2010, you were stationed

at the G pool at the Cove Restaurant?

5

A.

Yes, I was.

6

Q.

And, what were your duties at the Cove

7
8
9
10
11

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?

CARLIN ASSOCIATES

(216) 226-8157

220

1

A.

Probably.

2

Q.

And, you had seen her do the Dine With Shamu

3

show with a whale known as Tilikum several times?

4

A.

Yes, I have.

5

Q.

And, currently, there is some construction

6

going on at that pool, the Dine With Shamu pool, right?

7

A.

Yes, there is.

8

Q.

But, you had an opportunity to observe that

9

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:

May I approach, Your Honor?

CARLIN ASSOCIATES

(216) 226-8157

We're

221

1

going to mark this as a collective exhibit.

2

helps, these are individually paginated, and we can

3

refer to that by page number, and we can call them C-3,

4

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.

7

(Whereupon, Complainant's Exhibit C-3 was marked

8

for identification and entered into the record)

9

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

CARLIN ASSOCIATES

(216) 226-8157

222

1

standing to the Cove Restaurant?

2

A.

Yes.

3

Q.

Where were you stationed on February 24th?

4

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?

8

A.

Yes.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

223

1

Q.

As we go through these photographs, if any of

2

them look different in the set-up, will you please let

3

me know?

4

A.

I'll let you know.

5

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

8

scale straight ahead on the right-hand side of this

9

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

CARLIN ASSOCIATES

(216) 226-8157

224

1

identified it as the ledge?

2

MR. BLACK:

3

JUDGE WELSCH:

4

MR. BLACK:

BY MR. BLACK:

8

Q.

10

Yes, immediately prior to the

incident.

7

9

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

CARLIN ASSOCIATES

(216) 226-8157

225

1

side of the pool as well?

2

A.

Yes, it is.

3

Q.

And, Ms. Brancheau, she sometimes worked from

4

this area?

5

A.

Yes, she did.

6

Q.

If you would turn to the next page, Page

7

2674, is this just a slightly different view from what

8

we saw in the preceding picture?

9

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."

CARLIN ASSOCIATES

(216) 226-8157

226

1
2

MR. BLACK:
"ledge," yes.

He has just written the word

Thank you, Your Honor.

3

BY MR. BLACK:

4

Q.

If you would turn to the next page, Mr.

5

Herrara, Page 2676, and is this a closer view of the

6

ledge where Ms. Brancheau was working immediately prior

7

to the incident?

8

A.

Yes.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

227

1

A.

No, top left corner.

2

Q.

Let me reorient so now if we hold the map

3

vertically, then we're talking about --

4

A.

The top, right corner, yes, of that pool.

5

Q.

So, with the paper oriented in portrait

6

style, it's the top, right corner?

7

A.

Yes.

8

Q.

I just want everybody to be on the same page.

9

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

CARLIN ASSOCIATES

(216) 226-8157

228

1

Sea World uses to weigh the whales?

2

A.

Yes, it is.

3

Q.

And, then, on the left middle -- well, going

4

across the middle of the photograph, is that a close-up

5

of the ledge where Ms. Brancheau was working?

6

A.

Yes, it is.

7

Q.

Two more photographs.

If you would turn to

8

2679, and this is another view that indicates the ledge

9

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.

CARLIN ASSOCIATES

It connects to

(216) 226-8157

229

1

Q.

And that other pool is known as F pool?

2

A.

I believe so, yes.

3

Q.

And that's if we go back to Exhibit C-2, do

4

you see that?

5

A.

Yes.

6

Q.

If you would circle where you understand

7

where that stairway is and indicate "stairway over

8

canal"?

9

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.

C-3 is admitted without

objection.

20

(Whereupon, Complainant's Exhibit C-3, previously

21

marked, was admitted into evidence)

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

CARLIN ASSOCIATES

(216) 226-8157

230

1

reservations and come in and have lunch or dinner, and

2

at the middle of their dinner or lunch, they will have a

3

show there with the whales.

4

Q.

And, the show is somewhere around 20 minutes?

5

A.

Yes, 20 minutes about.

6

Q.

And, on February 24, 2010, the show started

7

at 1:00 p.m.?

8

A.

Yes.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

231

1

A.

No, I believe not.

2

Q.

At the end of the show, the guests started

3

getting up to clear out of the restaurant?

4

A.

Yes.

5

Q.

And, on this day they were doing that?

6

A.

Yes, they were.

7

Q.

And, some were taking pictures of the whale

8

and the trainer?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

232

1
2

Q.

And, at some point, she was near the edge of

that ledge area?

3

A.

From my angle, yes, she was.

4

Q.

Was she lying down or was she on her knees?

5

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

(216) 226-8157

233

1

A.

Yes.

2

Q.

Obviously, you didn't measure it?

3

A.

No.

4

Q.

But, from where you were, that's what it

5

appeared to be?

6

A.

Yes.

7

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

(216) 226-8157

We intend

234

1
2

JUDGE WELSCH:

The Court Reporter is not going

to transcribe any of the audio from the video?

3

MR. BLACK:

4

JUDGE WELSCH:

No, no.
If you stop and ask questions, is

5

there a way for you to identify where you are on the

6

video before you ask questions, so somebody reading the

7

transcript will know at what point in the video the

8

question is being asked and what the answer is?

9

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

(216) 226-8157

If

There's

235

1

nothing other than the whale makes some noises, there's

2

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?

5

MR. BLACK:

We're talking about the Dine With

6

Shamu show, in which Ms. Brancheau was killed.

7

up to a few moments or a minute before she was pulled

8

into the water.

9

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

(Whereupon Complainant's Exhibit C-4 was marked

15

for identification and entered into the record)

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

(216) 226-8157

236

1

previously?

2

A.

Yes.

3

Q.

So you're familiar with it?

4

A.

Yes.

5

Q.

I'm going to stop at some points along the

6

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.

9

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

(216) 226-8157

237

1

sound, but Tilikum is making some vocalization there,

2

making some noises at that point.

3

we hear?

4

A.

I'm not sure on the tape.

5

Q.

And, now, at this side where this video is

That's Tilikum that

6

taken is from the Cove restaurant, that's the

7

perspective?

8

MS. GUNNIN:

9

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

(216) 226-8157

238

1

vocalizations?

2

A.

I believe so.

3

Q.

And, that's right around time stamp

4

three minutes on the tape.

5

And, what we're looking at is people in the

6

Cove restaurant around -- what you described as around

7

the bend?

8

A.

Yes.

9

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

(216) 226-8157

239

1

feeding Tilikum (447)?

2

A.

Yes, she is.

3

Q.

Do you know what Tilikum is doing there at

5

A.

Coming out of the water.

6

Q.

He came up out of the water.

4

7

506?

It wasn't a

trainer standing there that the whale was coming to?

8

A.

I didn't see any on the video.

9

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

(216) 226-8157

240

1

A.

I'm not sure where the ledge comes out there.

2

Q.

And, here at 635, we see the whale has gone

3

around the pool.

Do you know was that Ms. Brancheau

4

there in the corner there now at 644?

5

A.

I believe so.

6

Q.

There was a third trainer there on that day,

7

right?

8

A.

Yes.

9

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

(216) 226-8157

241

1

A.

Yes.

2

Q.

She leans down several times and scoops up

3

water from the edge of the pool?

4

A.

Yes.

5

Q.

And, now, we see two trainers in this

6

picture, right?

7

A.

Yes.

8

Q.

And, the standing trainer, that's Ms.

9

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

(216) 226-8157

242

1

Q.

It's not unusual?

2

A.

It's not unusual, no. (957)

3

Q.

Can you see her hand right there on top of

4

the whale's nose or rostrum?

(1029)

5

A.

Yes.

6

Q.

And, that wasn't unusual for her to touch the

7

whale?

8

A.

No.

9

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

1

BY MR. BLACK:

2

Q.

And, there around time stamp 1158, we saw

3

Dawn leaning over and pulling something out of the

4

whale's mouth.

5

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

8

definitely saw her pull something from the whale's

9

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?

6

A.

I believe so.

7

MR. BLACK:

Your Honor, not that it matters,

8

but there's no further sound that needs to be played at

9

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

(216) 226-8157

245

1

her knees?

2

A.

Yes.

3

Q.

And, she's on the ledge area that you have

4

circled and pointed out on the photograph?

5

A.

Yes, she is.

6

Q.

This is just showing parts of the videotape

7

showing parts of the Cove restaurant.

(1525).

8

A.

Yes, it is.

9

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

(216) 226-8157

246

1

MR. BLACK:

We'll stop it there.

There is

2

another few seconds of video, Your Honor, but it doesn't

3

show any whale.

4

BY MR. BLACK:

5

Q.

6

So, this video shows the show and the tragic

ending on February 24, 2010, with Ms. Brancheau?

7

A.

Yes.

8

Q.

And, it fairly and accurately depicts the

9

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

(Whereupon Complainant's Exhibit C-4, previously

21

marked, was admitted into evidence)

22

BY MR. BLACK:

23

Q.

24
25

Thank you, Your Honor.

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

(216) 226-8157

247

1

that's where Tilikum grabbed her arm and pulled her in

2

the water?

3

A.

4

MR. BLACK:

5

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

(Whereupon, a short recess

18

was taken off the record)

19
20

JUDGE WELSCH:

Let's go back on the record.

Herrara, I'll remind you you're still under oath.

21

Ms. Gunnin, your witness.

22

MS. GUNNIN:

Thank you, Your Honor.

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?

3

A.

Yes.

4

Q.

If you could, could you mark on there where

5

you were standing at the time of the -- did you move

6

around, let me ask you that -- did you move around

7

during the Dine With Shamu show on February 24th?

8

A.

Yes, I did.

9

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

(216) 226-8157

249

1

located?

2

A.

Yes, it is.

3

Q.

And, how many feet would you estimate that

4

distance would have been?

5
6

A.

I can estimate -- I don't know, 100 feet.

I'm guesstimating; I'm not sure.

7

Q.

Did you have a clear view of Ms. Brancheau?

8

A.

Somewhat.

9

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

(216) 226-8157

250

1

A.

Yes, the show is over.

2

Q.

You pointed out the stairway over the canal.

3

Is that ever an area that you would go?

4

A.

No.

5

Q.

Is that limited to trainers?

6

A.

Just the training only, yes.

7

Q.

I believe you testified about the

8

instructions to stay five feet away from the pool.

9

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

(216) 226-8157

251

1

the guests?

2

A.

3

MS. GUNNIN:

4
5

No, it's a restaurant all the time, yes.
Thank you, Mr. Herrara.

all the questions, I have.
JUDGE WELSCH:

6

That's

Thank you.

Mr. Black, any Redirect?
---o0o---

7

REDIRECT EXAMINATION

8

BY MR. BLACK:

9

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

1

trainer's arm and pulled her into the pool and would not

2

let go," right?

3

A.

Yes, I did.

4

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.

8

Q.

I'm sorry?

9

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

(216) 226-8157

253

1

A.

Yes.

2

Q.

You were a police officer for 20 years,

3

right?

4

A.

Yes.

5

Q.

So you know the importance of being accurate

6

in a sworn statement that you give to law enforcement

7

officials, right?

8

A.

Yes.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

254

1

A.

I saw her arm by the whale as she was going

2

down, so I assumed that he grabbed her arm and took her

3

in the water.

4

Q.

5

And, that's what your statement to the

sheriffs --

6

A.

Yes.

7

Q.

It doesn't say anything about specific.

It

8

just says he grabbed her arm and pulled her into the

9

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:

Thank you very much.

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.

CARLIN ASSOCIATES

(216) 226-8157

255

1
2
3
4
5
6

(Witness Excused)
JUDGE WELSCH:

Mr. Black, does the Secretary

wish to call her next witness?
MS. HOWARD-FISHBURNE:

Your Honor, the

Secretary would call Ms. Linne Schaber.
JUDGE WELSCH:

We're going to take a short

7

recess until about 20 minutes 'til.

8

adjourned.

So we stand

Thank you.

9

(Whereupon, a short recess

10

was taken off the record)

11

JUDGE WELSCH:

12

Does the Secretary wish to call her next witness?

13

MS. HOWARD-FISHBURNE:

14

Let's go on the record.

Yes, Your Honor.

Secretary calls Linne Schaber.

15

---o0o---

16

LINNE SCHABER,

17

having been first duly sworn, was

18

examined and testified as follows:

19

The

JUDGE WELSCH:

Ma'am, for the record, would you

20

state your full name, spell your last name and state

21

your address, please?

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?

CARLIN ASSOCIATES

(216) 226-8157

256

1

THE WITNESS:

That's right.

2

JUDGE WELSCH:

Your witness, Ms. Howard-

3

Fishburne?

4

MS. HOWARD-FISHBURNE:

5

Thank you, Your Honor.

---o0o---

6

DIRECT EXAMINATION

7

BY MS. HOWARD-FISHBURNE:

8

Q.

Good morning, Ms. Schaber.

9

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

CARLIN ASSOCIATES

(216) 226-8157

257

1

in the area, building relationships with the team,

2

developing different types of enrichment for the

3

animals.

4
5

JUDGE WELSCH:

When you're talking about

animals, are you talking about the killer whales?

6

THE WITNESS:

That's correct.

7

JUDGE WELSCH:

So, you only deal with the whales

8
9

at Shamu Stadium?
THE WITNESS:

Currently, yes.

10

JUDGE WELSCH:

Thank you.

11

BY MS. HOWARD-FISHBURNE:

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

BY MS. HOWARD-FISHBURNE:

25

Q.

But, are you also a part of mentoring and

CARLIN ASSOCIATES

(216) 226-8157

258

1

coaching the less experienced trainers?

2

A.

I am a coach of less experienced trainers,

4

Q.

As a coach, what are your responsibilities?

5

A.

As a coach, I'm there to see if they need any

3

yes.

6

assistance in accomplishing any of their protocols, any

7

of their reading, any of their tasks that they need to

8

learn in areas such as breakout, anything that's

9

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?

CARLIN ASSOCIATES

(216) 226-8157

259

1

A.

Actually, it began in Sea World of Ohio.

2

Q.

Which then changed to Six Flags, correct?

3

A.

That's correct.

4

Q.

What animals were you working with in Ohio?

5

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?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

260

1

Q.

So you were hired in 2002?

2

A.

Yes.

3

Q.

You went to sea lions and otters for your

4

first assignment?

5

A.

That's correct.

6

Q.

And, you worked with the same animals that

7

you were working with in Ohio, correct?

8

A.

The same species, yes.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

261

1

A.

I had experience working with dolphins.

2

Q.

And so when you initially started out at

3

Shamu, did you start out as an associate trainer?

4

A.

I was transferred as a senior trainer.

5

Q.

So, you didn't have to go through those other

6

steps?

7

A.

I did not.

8

Q.

But, you did have to learn about the killer

9

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?

CARLIN ASSOCIATES

(216) 226-8157

262

1

A.

That's correct.

2

Q.

And, when they provided the Tili Talk to you,

3

they actually informed you of the two deaths that

4

Tilikum was involved in, correct?

5

A.

Correct.

6

Q.

And, they also informed you if you found

7

yourself in the pool with Tilikum, you might not

8

survive; is that correct?

9

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

CARLIN ASSOCIATES

(216) 226-8157

263

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?

4

A.

Possibly, yes.

5

Q.

Some of that information was required and

6

other of that information was suggested, correct?

7

A.

Possibly, yes.

8

Q.

I'm going to show what has been marked --

9

MS. HOWARD-FISHBURNE:

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

(Whereupon Complainant's Exhibit C-5 was marked

13

for identification and entered into the record)

14

MS. HOWARD-FISHBURNE:

15

Your Honor, may I

approach the witness?

16

JUDGE WELSCH:

17

MS. HOWARD-FISHBURNE:

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?

CARLIN ASSOCIATES

(216) 226-8157

264

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?

5

A.

I do not remember exactly what is different.

6

Q.

But, generally speaking, there were

7

recommended topics for you to go over; is that correct?

8

A.

Yes.

9

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

MS. HOWARD-FISHBURNE:

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.

CARLIN ASSOCIATES

(216) 226-8157

265

1

JUDGE WELSCH:

I guess I'm somewhat confused on

2

the date.

I see two updates on there.

One update says

3

October 2009, and then over on the right-hand side,

4

there is an update of 11/30/2010.

5

or not this orientation checklist was in effect in

6

February of 2010?

Do you know whether

7

THE WITNESS:

It was in effect, that's correct.

8

JUDGE WELSCH:

That's the checklist that was

9

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.
C-5 is admitted without

objection.

17

(Whereupon Complainant's Exhibit C-5, previously

18

marked, was admitted into evidence)

19

MS. HOWARD-FISHBURNE:

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?

CARLIN ASSOCIATES

(216) 226-8157

266

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

4

management know that an animal trainer had actually

5

completed this information?

6

A.

They could meet with the trainer.

7

Q.

But, there was no formalized mechanism where

8

Sea World actually knew whether or not the trainer

9

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,

CARLIN ASSOCIATES

(216) 226-8157

267

1

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?

4

A.

They could, yes.

5

Q.

At any time, were you required to turn this

6

document in to management to say, "Hey, I'm done"?

7

A.

8

JUDGE WELSCH:

9

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

CARLIN ASSOCIATES

(216) 226-8157

268

1

required to --

2
3

JUDGE WELSCH:
that means.

4
5

I'm not sure I understand what

THE WITNESS:

Our supervisors, assistant

supervisors, curator.

6

JUDGE WELSCH:

7

MS. HOWARD-FISHBURNE:

8

JUDGE WELSCH:

9

BY MS. HOWARD-FISHBURNE:

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

CARLIN ASSOCIATES

(216) 226-8157

269

1

correct?

2

A.

That's correct.

3

Q.

And, as a coach, a less experienced trainer

4

could come to you to receive training?

5

A.

They could, yes.

6

Q.

You were required as a coach to provide them

7

with whatever information you had about animal training;

8

is that correct?

9

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

CARLIN ASSOCIATES

(216) 226-8157

270

1
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

5

review the chapter that's dedicated to Tilikum; isn't

6

that correct?

7

A.

We have to read the entire manual, yes.

8

Q.

And, in reading the entire manual, you review

9

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

MS. HOWARD-FISHBURNE:
get to that.

20

JUDGE WELSCH:

21

MS. HOWARD-FISHBURNE:

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?
MS. HOWARD-FISHBURNE:

Can I approach, Your

Honor?

CARLIN ASSOCIATES

(216) 226-8157

271

1

JUDGE WELSCH:

Yes.

2

BY MS. HOWARD-FISHBURNE:

3

Q.

When I was mentioning the manual, the animal

4

training SOP, are you familiar with this document that's

5

marked as C-1?

6

A.

Yes.

7

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"?

CARLIN ASSOCIATES

(216) 226-8157

272

1

A.

Yes.

2

Q.

And contained within that chapter, Tilikum

3

has general guidelines and emergency action plan; is

4

that correct?

5

A.

Yes.

6

Q.

And, there are also specific interaction

7

guidelines for Tilikum?

8

A.

That's what this states, yes.

9

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?

MS. HOWARD-FISHBURNE:

Sea World 1098.

look, it's Bates stamped.

CARLIN ASSOCIATES

(216) 226-8157

If you

273

1

JUDGE WELSCH:

2

MS. HOWARD-FISHBURNE:

3

Q.

4

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.

CARLIN ASSOCIATES

(216) 226-8157

274

1

Q.

And, you didn't understand it to be humans?

2

A.

I don't understand your question.

3

Q.

You didn't understand that when you were told

4

that Tilikum had an issue returning objects, that that

5

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?

CARLIN ASSOCIATES

(216) 226-8157

Would that

275

1

be considered dry work?

2

A.

That's correct.

3

Q.

And, prior to February 24th of 2010, you were

4

approved to interact with Tilikum to the point where you

5

could actually touch him, correct?

6

A.

That's correct.

7

Q.

And, prior to February 24th, you actually

8

performed interactions with Tilikum from the stage or

9

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?

CARLIN ASSOCIATES

(216) 226-8157

276

1

A.

It just depended on what management wanted.

2

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 --

5

basically, any trainer approved to work with any whale

6

came from management; whatever their process was.

7

Q.

And, that was the process -- in order to be

8

approved to work with Tilikum, you had to go through a

9

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?

CARLIN ASSOCIATES

(216) 226-8157

277

1

Q.

Despite being told when you first started at

2

Shamu Stadium, that Tilikum was possessive of objects if

3

they fell into the water, you were approved to work in

4

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.

7

Q.

And, that approval allowed you to be as close

8

to the point where you could actually touch Tilikum; is

9

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?

CARLIN ASSOCIATES

(216) 226-8157

278

1

A.

That's correct.

2

Q.

And, you considered the interactions that you

3

had with Tilikum when there was actually an audience

4

where customers paid, that was a performance, correct?

5

A.

Yes.

6

Q.

And, when you came to work, there was

7

actually a board that actually listed out what trainers

8

were actually working with what whales?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

279

1

Q.

And, do you understand a show performance to

2

be any time you're actually performing with an audience

3

when you're at Shamu Stadium?

4

A.

Yes, we have specific shows at Shamu Stadium.

5

Q.

So, if you were at work, practicing before

6

you actually had any guests, you wouldn't consider that

7

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.

CARLIN ASSOCIATES

(216) 226-8157

280

1

Q.

Do you remember the fact that the whales were

2

not responding to the commands of the trainers at the

3

Believe Show?

4

A.

I do remember at one point in the show, we

5

did have to take a break from the actual planned segment

6

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

CARLIN ASSOCIATES

(216) 226-8157

281

1

responding to commands, an animal could just not respond

2

to a particular command, or an animal could just not be

3

under a trainer's control.

4

Q.

If they're not under your control, then there

5

are no potential safety issues for a trainer that might

6

be interacting with the whale?

7

A.

Not necessarily.

8

not to be with the trainer.

9

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

CARLIN ASSOCIATES

(216) 226-8157

282

1

precursor to some other action?

2

A.

What do you mean by "some other action"?

3

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?

7

Q.

No, I'm just talking about precursor.

8

A.

Then, I don't know what you mean.

9
10

Are

A

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.

CARLIN ASSOCIATES

(216) 226-8157

So, are you

283

1

saying that a precursor has to be associated with

2

aggression?

3

A.

No.

When you say, "precursor," I don't

4

understand what you mean a precursor to.

5

precursor to aggression to mean there are signs that

6

could lead up to aggression.

7

that means there are signs that are supposed to lead up

8

to something, and I don't understand what you mean.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

284

1

Q.

And, during the Dine With Shamu show, you

2

were a spotter; is that correct?

3

spotter?

4

A.

Yes.

5

Q.

And, as a spotter, you're responsible for

6

Initially, you were a

watching the interaction with the control trainer?

7

A.

Yes.

8

Q.

On this particular day, on February 24, 2010,

9

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.

CARLIN ASSOCIATES

(216) 226-8157

285

1

Brancheau had with Tilikum, she was close enough to

2

touch Tilikum; is that correct?

3

A.

Yes.

4

Q.

And, at one point during the interaction, Ms.

5

Brancheau was actually lying on her belly as she

6

interacted with Tilikum; is that correct?

7

A.

That's correct.

8

Q.

And, that was an interaction that was

9

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?

CARLIN ASSOCIATES

(216) 226-8157

286

1

A.

2

Q.

Yes.
Within a few minutes of your being down in

3

the viewing area, Tilikum pulled Ms. Brancheau into the

4

water; is that correct?

5

A.

That's what I was told, yes.

6

Q.

So, you didn't witness that?

7

A.

I saw Dawn go into the water.

8

Q.

And, the interactions that Ms. Brancheau was

9

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

CARLIN ASSOCIATES

(216) 226-8157

287

1

that affect your ability, the trainer's ability to move

2

around?

3

A.

I don't know what you mean.

4

Q.

Well, why the distinction between water work

5

and dry work?

6

animal trainer is approved to engage in water work but

7

not dry work for a particular killer whale, what is the

8

distinction that Sea World is making between the two

9

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

CARLIN ASSOCIATES

(216) 226-8157

288

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

5

just understand if that animal is performing correctly,

6

if the animal is in a calm state, or if there are signs

7

to precursors, or if the animal is in a frustrated

8

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

CARLIN ASSOCIATES

(216) 226-8157

289

1

very tight body.

2

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.

9

precursors?

11
12

They

vocalize in very calm states as well.

8

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

MS. HOWARD-FISHBURNE:

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

BY MS. HOWARD-FISHBURNE:

25

Q.

What I think we were talking about before we

CARLIN ASSOCIATES

(216) 226-8157

290

1

got into talking about frustration and aggression were

2

hazards while swimming in the water with the killer

3

whale, and we talked about the drowning hazard while a

4

killer whale is swimming or while an animal trainer was

5

swimming in the water with a killer whale.

6

There's also a drowning hazard with an animal

7

trainer interacting with the killer whale at the edge of

8

the pool; is that correct?

9

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

MS. HOWARD-FISHBURNE:

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?

CARLIN ASSOCIATES

(216) 226-8157

291

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.

9

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

(Whereupon, the morning session

14

was adjourned at 11:30 a.m.)

15
16
17
18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

292

1

P R O C E E D I N G S

2

Afternoon Session

3

12:45 p.m.

4

JUDGE WELSCH:

5

Ms. Schaber, I'll remind you you're still under

6

Let's go on the record.

oath.

7

Ms. Gunnin, your witness.

8

MS. GUNNIN:

Thank you, Your Honor.

9

---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

CARLIN ASSOCIATES

(216) 226-8157

293

1

like that, getting familiar with the animals, providing

2

a lot of information about them, to learn more about

3

them, different things like that, some of the goals,

4

some of my direction, some of the development that I

5

would be required to be able to attain as a senior

6

trainer there, things I needed to learn about the

7

animals, aspects of the shows, different types of

8

sessions and things like that.

9

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

CARLIN ASSOCIATES

(216) 226-8157

294

1

into the pool area.

2

Q.

And, I believe you were shown something that

3

was marked Exhibit C-5.

4

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?

9

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

CARLIN ASSOCIATES

(216) 226-8157

295

1

management staff to be able to spot a particular trainer

2

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

6

of management to be a spotter for a trainer who was

7

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

CARLIN ASSOCIATES

(216) 226-8157

296

1

given to me by the management staff to start at that

2

stadium to help learn the animals, learn some of their

3

behaviors to open and put in the new Believe Show.

4

Q.

When you came to Shamu Stadium, how did you

5

progress in terms of being able to ultimately work with

6

Tilikum, and how were you able to ultimately do work

7

that you were approved to do, full water work, correct?

8

A.

Yes.

9

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

CARLIN ASSOCIATES

(216) 226-8157

297

1

myself to be approved to be a spotter for any of the

2

Tilikum trainers that were approved to work him.

3

took me almost six months with my prior experience to be

4

able to start at the very beginning stages of water

5

work.

6

It

Within a few months, I was able to perform

7

with certain animals, not all of them but with certain

8

animals in the show on stage just asking them behaviors

9

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

CARLIN ASSOCIATES

(216) 226-8157

298

1

proximity where you are able to use tactile and do the

2

same type of behaviors in a closer proximity with them.

3

Q.

And, how long would it take to go through

4

that process of going from being the dry nontactile to

5

being a dry tactile trainer?

6

A.

It could take a little bit of time. It

7

depended on how experienced the trainer was.

8

that was a little less experienced in working animals

9

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

CARLIN ASSOCIATES

(216) 226-8157

299

1

sequential, and that came from our management staff.

2

Q.

Do you know what the behavior review

3

committee is?

4

A.

I do, yes.

5

Q.

What do they do?

6

A.

The behavior review committee would review

7

and approve individual trainers for different

8

interactions such as the trainer being able to work an

9

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

CARLIN ASSOCIATES

Thank you, Your Honor.

(216) 226-8157

300

1

our salary management staff.

2

BY MS. GUNNIN:

3

Q.

4

Shamu Stadium?

5

A.

Jenny Mairot.

6

Q.

And, has she remained your supervisor?

7

A.

Yes.

8

Q.

In February of 2010 who were the supervisors

9

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.

CARLIN ASSOCIATES

(216) 226-8157

301

1
2

Q.

And that was the level you were in on

February 2010, a Senior Trainer 1?

3

A.

Yes.

4

Q.

And below Senior Trainer 1, what would be the

5

next level?

6

A.

A senior level.

7

Q.

And below senior level?

8

A.

It was considered a trainer level.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

302

1

Q.

So that would include Shamu Stadium?

2

A.

It would.

3

Q.

As part of the manuals that you review and

4

look at, is that one of the manuals you would look at as

5

a trainer?

6

A.

Yes.

7

Q.

What is R-2?

8

A.

This is area manual to Shamu Stadium

9

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

MS. HOWARD-FISHBURNE:

CARLIN ASSOCIATES

No, Your Honor, to the

(216) 226-8157

303

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.

4

(Whereupon, Respondent's Exhibits R-1 and R-2,

5

previously marked, were admitted into evidence)

6

BY MS. GUNNIN:

7

Q.

Ms. Schaber, is there any other kind of list

8

that you also sign off on?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

304

1

Q.

Do you recall who was your coach when you

2

arrived at Shamu Stadium that helped walk you through

3

the process?

4

A.

I had a couple of coaches.

They would have

5

been some of the senior trainers that were above me at

6

the time.

7

there would have been a former trainer, Lindsey Schumm,

8

some of the more experienced senior trainers and Senior

9

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

CARLIN ASSOCIATES

(216) 226-8157

305

1

level of approval?

2

A.

When you were comfortable and understood the

3

aspects of working with animals in a nontactile

4

situation as well as tactile, different class of

5

interactions, you could then begin the approval process

6

and gain approval for the very beginning stages of water

7

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?

CARLIN ASSOCIATES

(216) 226-8157

306

1

A.

I did, yes.

2

Q.

Do you recall when you would have started

3
4

working with Tilikum?
A.

I believe after I had already been at the

5

stadium for almost a year, I first began to be on

6

Tilikum's nontactile team, and once I had worked with

7

him on that team and that approval for some time, a few

8

months, I was able to gain approval to be part of his

9

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

CARLIN ASSOCIATES

(216) 226-8157

So, we

307

1

and asking him to return those objects, and he could

2

have various reinforcement rewards for doing that.

3
4

Q.

When you say "reinforcement rewards," what do

you mean by that?

5

A.

6

a lot of them.

7

to ice cubes or different types of hose spray, maybe

8

along his back and different things like that, we would

9

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?

CARLIN ASSOCIATES

(216) 226-8157

308

1

A.

Yes, I believe Dawn had tossed a fish into

2

the pool and asked him to bring the fish back, and I

3

believe he performed that successfully.

4

Q.

Is that another behavior that you had worked

5

with Tilikum on, the throwing of the fish and bringing

6

it back?

7

A.

8

Yes, that certain trainers had asked him

previously.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

309

1

A.

I do, yes.

2

Q.

Did you feel comfortable working with Tilikum

3

back in February of 2010?

4

A.

I did, yes.

5

Q.

And, do you feel comfortable working with

6

Tilikum today?

7

A.

I do, yes.

8

Q.

If you didn't feel comfortable working with

9

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

CARLIN ASSOCIATES

(216) 226-8157

310

1

whale in the show, it's a very important behavior for

2

some of the younger killer whales to learn.

3

ask them to roll over and present their tails and then

4

rub their tails.

We would

5

So, a lot of our relationship sessions were

6

touching along their back or their dorsal fin or their

7

pectoral flippers.

8

the show.

9

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

CARLIN ASSOCIATES

(216) 226-8157

311

1

environment.

2

Q.

3

killer whales?

4

A.

5

Do you perform husbandry procedures on the

I can ask different types of husbandry

behaviors from the killer whale.

6

Q.

Give me an example of that.

7

A.

The blood draw is one.

We could do what we

8

consider blow plate culture so we would ask the killer

9

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.

CARLIN ASSOCIATES

(216) 226-8157

312

1
2

Q.

Are the trainers always present when the vets

are doing medical procedures?

3

A.

Yes.

4

Q.

When the medical procedures are being

5

performed on the killer whales, who is maintaining the

6

control of the killer whales?

7

A.

The control trainers.

8

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?

CARLIN ASSOCIATES

(216) 226-8157

313

1

A.

2

animals.

3

hands.

4

end of it with which we can teach the animal to follow

5

and touch.

6

hand so we can ask the animal to touch or follow and

7

show them that's exactly what we want and follow that up

8

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.

CARLIN ASSOCIATES

(216) 226-8157

A

314

1

So, the precursors to us would be signs or

2

behaviors that an animal is performing that could lead

3

up to a different behavior, such as if you're walking

4

next to the pool with the killer whale, and one of the

5

whales is looking at you, and that could be a precursor

6

to the animal coming all the way over to the pool to be

7

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

CARLIN ASSOCIATES

(216) 226-8157

315

1
2

precursor to aggression.
A.

We do not consider it always a precursor to

3

aggression.

4

trainer.

5

own or just choosing to be with another animal as

6

opposed so us.

7

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.

CARLIN ASSOCIATES

If we had a show

(216) 226-8157

316

1

that had ended, and we said good-bye to the audience,

2

the trainers could then spend time having a great play

3

time with the animals and throwing a bunch of toys in, a

4

lot of them tend to really enjoy ice, we could go to the

5

higher part of the set and toss fish to all the animals

6

down below and play with them in that sense.

7

be a different type of interaction after a show that we

8

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

CARLIN ASSOCIATES

(216) 226-8157

317

1

show.

2

in one of the behind the stage areas so we could be

3

working a new fluke present with a killer whale behind

4

the scenes during a show while other killer whales are

5

performing some additional behaviors for the audience.

6

So, we can have different types of interactions

Q.

You were asked about whether if a performance

7

of the killer whale was not under control, was that a

8

potential safety issue, and you said not necessarily.

9

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

CARLIN ASSOCIATES

(216) 226-8157

318

1

show, or at times the trainer can just give the animal a

2

break and just come back later.

3
4

Q.

Not being under control doesn't mean a bad

thing is going to happen?

5

A.

No, it does not.

6

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?

CARLIN ASSOCIATES

(216) 226-8157

319

1

A.

It's below.

2

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

5

water from the window, but they were above me, and

6

there's a roof covering the underwater viewing area.

7

Q.

And, you make a distinction between what you

8

call the Believe Show, and then you called the Dine With

9

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

CARLIN ASSOCIATES

(216) 226-8157

320

1
2

scenes type of dining opportunity for the guests.
Q.

You were asked about water work and dry work,

3

and are those two distinctions only part of a show or

4

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

CARLIN ASSOCIATES

(216) 226-8157

321

1

Tilikum, do you recall where you were standing at the

2

Dine With Shamu area?

3

A.

I believe I was across the pool, close to the

4

guest area.

5

had some ropes and tie-ons there in a small walkway area

6

between the rocks that surrounded the Dine With Shamu

7

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

CARLIN ASSOCIATES

(216) 226-8157

322

1
2
3
4
5
6

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

7

started at Shamu Stadium working with the killer whales.

8

If I understood you correctly, you said in about a year

9

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

CARLIN ASSOCIATES

(216) 226-8157

323

1

months after I had a relationship with him and I worked

2

him more, and there wasn't any problems, things were

3

going well.

4

I understood a lot more in working with him,

5

training him, there wasn't any -- things were very

6

clear, and my performance was a good criteria and the

7

interactions felt very comfortable for approving me for

8

his tactile team.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

324

1
2

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?

5

THE WITNESS:

He was not in that show.

6

JUDGE WELSCH:

When you come to work in the

7

morning, do you know what whales will be working, let's

8

say, in the Believe Show?

9

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

CARLIN ASSOCIATES

(216) 226-8157

325

1

something kind of designated as to what is to be done

2

during that show?

3

Can you tell me how that works?

THE WITNESS:

A lot of the direction would come

4

from our management team whether it's on a daily basis

5

or a weekly basis.

6

If there -- any of the animals could perform in

7

our Shamu interaction, the shows for the guests.

So,

8

the direction comes from our management team of whether

9

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

CARLIN ASSOCIATES

(216) 226-8157

326

1

With Shamu show, could you also include water work as

2

well as dry work?

3
4

THE WITNESS:

If Tilikum wasn't in the Dine

With Shamu?

5

JUDGE WELSCH:

Yes.

6

THE WITNESS:

Yes, the Dine With Shamu

7

interaction, the show for those guests could include the

8

dry segment as well as the water work with trainers and

9

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,

CARLIN ASSOCIATES

(216) 226-8157

327

1

so generally it was written every day.

2

JUDGE WELSCH:

Were you part of the performance

3

of the Believe Show, and was Ms. Brancheau part of the

4

performance of the Believe Show that preceded the Dine

5

With Shamu show?

6

THE WITNESS:

I was part of the Believe Show.

7

I was written to be part of the show.

8

remember if Dawn was in the Believe Show or not.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

328

1

JUDGE WELSCH:

Is there some criteria in terms

2

of how close you are when you operate as a spotter?

3

Because in the video, we didn't see it.

4

Brancheau seems to go pretty much all the way around

5

various aspects of the pool area, the Dine With Shamu

6

pool area, but I couldn't follow where you were at any

7

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

CARLIN ASSOCIATES

And, because I

(216) 226-8157

329

1

Tilikum, I didn't need a spotter because I was so distal

2

from him.

3

JUDGE WELSCH:

And, then, after the Dine With

4

Shamu show, it does to some extent continue on because

5

you had some people that were staying to take

6

photographs in the pool?

7

THE WITNESS:

Yes, there was a separate tour.

8

It was a tour group from the guest service, so it was

9

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

working with Tilikum.

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

CARLIN ASSOCIATES

(216) 226-8157

330

1

February 24, 2010, either during a performance or during

2

a show, the Dine With Shamu show, or even the back stage

3

training that you felt uncomfortable or felt some

4

aggression from Tilikum?

5

THE WITNESS:

I did not experience any feeling

6

that was so uncomfortable that I would have had to say

7

anything.

8

be some fish or a bucket in the way or some ice, and you

9

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

CARLIN ASSOCIATES

(216) 226-8157

331

1
2

extra cautious.
JUDGE WELSCH:

In deal with Tilikum on the

3

February 24, 2010, date were there any situations where

4

he performed or exhibited behavior that you were

5

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

CARLIN ASSOCIATES

(216) 226-8157

332

1

whales or dolphins would display equally.

2

all for the most part display them the same, no matter

3

if it was one individual animal or the other.

4

would look very similar.

5

JUDGE WELSCH:

6

They would

They

Did Tilikum have any precursors

to aggression that the other killer whales did not have?

7

THE WITNESS:

In general?

8

JUDGE WELSCH:

Yes.

9

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

precursor to aggression?

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

CARLIN ASSOCIATES

(216) 226-8157

There

333

1
2

frustrated that could be a precursor.
A different one could be the squirting or what we

3

consider hosing which is a little bit more forceful

4

water that they could display that could be a sign that

5

they're frustrated; it could be a sign that aggression

6

is about to come.

7

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

CARLIN ASSOCIATES

(216) 226-8157

334

1
2

animal will perform anything aggressive.
JUDGE WELSCH:

Okay.

In terms of your own

3

safety, if you saw the animal, the killer whale's eyes

4

get big, to you that's a sign that there may be some

5

frustration or something, what would you do if you were

6

in the water?

7

THE WITNESS:

If I was in the water --

8

JUDGE WELSCH:

Let's take it out of Tilikum.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

335

1

You could then ask the animal to go over to the

2

spotter that is spotting you in the water, and they

3

could take control of that animal and that would be a

4

behavior that could allow the animal to be reinforced.

5

You could go on, you could get out of the water at that

6

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?

CARLIN ASSOCIATES

(216) 226-8157

336

1

MS. HOWARD-FISHBURNE:

2

Could we have about two or three minutes?

3

JUDGE WELSCH:

4

break.

Yes, Your Honor.

Yes, let's take a five-minute

Be back at 2:00.

5

(Whereupon, a short recess

6

was taken off the record)

7

JUDGE WELSCH:

8

Ms. Schaber, I will remind you you're still under

9

Let's go back on the record.

oath.

10

Ms. Howard-Fishburne?

11

MS. HOWARD-FISHBURNE:

12

Thank you, Your Honor.

---o0o---

13

REDIRECT EXAMINATION

14

BY MS. HOWARD-FISHBURNE:

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.

CARLIN ASSOCIATES

(216) 226-8157

337

1
2

Q.

Are you required to read this document

annually as well?

3

A.

That's correct.

4

Q.

Can you turn for me to Page 1405 in the

5

document?

6

A.

(Witness Complies).

Okay.

7

Q.

The second bullet point says:

8

"When animal interactions are occurring

9

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

CARLIN ASSOCIATES

(216) 226-8157

338

1

talking about.

2

Q.

What risks are involved when you're working

3

with a killer whale without a barrier?

4

to recognize those hazards?

5

A.

Are you trained

Well, we talked a little bit about an animal

6

that could not be in a calm state that could be

7

frustrated or anxious that could display some aggressive

8

behavior.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

339

1
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

CARLIN ASSOCIATES

(216) 226-8157

340

1
2

or gelatin?
A.

That's correct because those are things that

3

the animal enjoys because they accept those things and

4

because it is positive.

5

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?

8

A.

Everybody needs to eat, yes.

9

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

CARLIN ASSOCIATES

(216) 226-8157

341

1

animals.

2

Q.

3

The killer whale could also hit a trainer

with his body, correct?

4

A.

That could be a potential.

5

Q.

Or they could pull an animal trainer into the

6

water with your back turned?

7

A.

That could be a potential.

8

Q.

Now, you answered some questions just a

9

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?

CARLIN ASSOCIATES

(216) 226-8157

342

1

A.

That's not considered a show.

2

Q.

And, when customers pay to actually

3

experience the Dine With Shamu, they're actually paying

4

because they expect to see a performance with the animal

5

trainer and the killer whale, correct?

6

A.

The Dine With Shamu program is a dining

7

experience with different types of interactions with the

8

animals, yes.

9

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

CARLIN ASSOCIATES

(216) 226-8157

343

1

where the guests would not actually see any animal

2

trainer working with the killer whales?

3

A.

It's possible that there could have been a

4

time where the animals decided to swim on their own

5

during the dinner.

6

Q.

So, that would be Sea World's intention to

7

provide a show, but for the killer whale acting like an

8

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

CARLIN ASSOCIATES

(216) 226-8157

The

344

1

second set of eyes?

2

A.

It's an additional pair of eyes, yes.

3

Q.

When you're acting as a spotter, do you also

4

interact with the killer whale as well?

5

A.

If you're interacting with the killer whale,

6

the other trainer that's with you could then become your

7

spotter.

8

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

9

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

CARLIN ASSOCIATES

(216) 226-8157

345

1

surprised you during the time that you have worked at

2

Shamu?

3

A.

That's correct.

4

Q.

So, you have seen every type of behavior that

5

a killer whale might exhibit?

6

A.

As far as I know, yes.

7

Q.

You talked earlier with the Judge as well as

8

Ms. Gunnin regarding precursors.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

346

1

Q.

Is that just it's slapping?

If you saw a

2

killer whale doing that, would that be a precursor or

3

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,

7

and its pec was slapping, you would consider that to be

8

precursor to aggression?

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

BY MS. HOWARD-FISHBURNE:

24

Q.

25

And, Sea World trains you to recognize those

precursors and then to respond to them?

CARLIN ASSOCIATES

(216) 226-8157

347

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?

5

A.

It depends on what you mean by respond.

6

Q.

Well, at Sea World, they don't just provide

7

you with the information about what a precursor is.

8

They also provide you with how to get away from that

9

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

CARLIN ASSOCIATES

(216) 226-8157

348

1

guidance needed in addition to your making a decision on

2

how you continue to work with that animal, you have

3

those resources available.

4

JUDGE WELSCH:

But, I think Ms. Howard-

5

Fishburne's question goes to whether or not Sea World

6

has trained you how to react to those kinds of

7

precursive signs, or do you just decide for yourself how

8

you want to react to those signs?

9

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

BY MS. HOWARD-FISHBURNE:

25

Q.

So, that's a judgement call that you have to

CARLIN ASSOCIATES

(216) 226-8157

349

1

make as an animal trainer?

2

A.

You can make the decisions, you could also --

3

helping you make those decisions are your additional

4

spotters and trainers with you working with you during

5

those interactions.

6

Q.

And, sometimes the decisions that you make in

7

response to those precursors are incorrect; isn't that

8

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.
MS. HOWARD-FISHBURNE:

Your Honor, we have been

talking about --

23

JUDGE WELSCH:

Overruled.

24

THE WITNESS:

Can you repeat it one more time?

25

BY MS. HOWARD-FISHBURNE:

CARLIN ASSOCIATES

Go ahead.

(216) 226-8157

350

1

Q.

The question was, so in your opinion as an

2

experienced killer whale trainer, you have knowledge of

3

animal trainers who missed a precursor or failed to

4

respond properly to a precursor in prior incidents;

5

isn't that correct?

6
7

A.

I know of prior incidents that there could

have been mistakes made, yes.

8

MS. HOWARD-FISHBURNE:

9

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)

CARLIN ASSOCIATES

(216) 226-8157

351

1

JUDGE WELSCH:

2

going with that.

3

MR. BLACK:

4

JUDGE WELSCH:

5

Go ahead.

6

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

having been first duly sworn, was

14

examined and testified as follows:

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:

Your witness, Mr. Black.

CARLIN ASSOCIATES

(216) 226-8157

352

1

MR. BLACK:

Thank you, Your Honor.

2

---o0o---

3

DIRECT EXAMINATION

4

BY MR. BLACK:

5

Q.

Mr. Tompkins, you are currently the Corporate

6

Curator for Zoological Operations for Sea World Parks

7

and Entertainment?

8

A.

Yes, sir.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

353

1

Q.

2

park in Ohio?

3

A.

Aurora, Ohio.

4

Q.

Where is Aurora?

5

A.

Outside of Cleveland by about 30 minutes.

6

Q.

And when did Sea World stop operating that

8

A.

A good question.

9

15 years ago.

7

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.

CARLIN ASSOCIATES

(216) 226-8157

354

1
2

Q.

And Sea World also has a whale at Marine Land

in Niagara?

3

A.

Yes.

4

Q.

Up in Canada?

5

A.

Yes, sir.

6

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.

What does that mean?

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.

CARLIN ASSOCIATES

(216) 226-8157

355

1
2

Q.

And, it's a way of training to get care for

the whales, right?

3

A.

Correct.

4

Q.

But, also to get the whales to behave in

5

particular ways that help Sea World run its business?

6

A.

Correct.

7

Q.

For example, to put on shows, they use

8

operant conditioning to work their way up to training

9

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?

CARLIN ASSOCIATES

I know we had the

(216) 226-8157

356

1
2

discussion at your deposition.
A.

It was actually a time period back in 1988

3

for two years, they called it Curator and Vice

4

President, and then we added a position and there was a

5

curator position for awhile for several years, so there

6

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?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

357

1

A.

Yes.

2

Q.

And, that's the main component of Sea World's

3

written training for trainers, right?

4

A.

Right.

5

Q.

And, then, the trainers they actually sign a

6

document indicating that they have read the SOP's?

7

A.

Yes, they do.

8

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.

And, they need to know the killer whale's

23

gender or sex?

24

A.

Yes.

25

Q.

And, the killer whale's social group or what

CARLIN ASSOCIATES

(216) 226-8157

358

1

social grouping they're in, right?

2

A.

Correct.

3

Q.

And, they need to know the killer whale's

4

predisposition if you will?

5

A.

Well, it's not a predisposition.

It's

6

possible behaviors from their entire history that could

7

play a part in how they react to their environment.

8

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

9

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

CARLIN ASSOCIATES

(216) 226-8157

359

1

on in the whale's life?

2

A.

Absolutely.

3

Q.

But, for certain periods of their life, they

4

may have the label of having aggressive tendencies,

5

right?

6

A.

Not necessarily.

Just because there are

7

behaviors that we've noted that could be a precursor to

8

aggression does not mean it's aggressive behavior.

9

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

CARLIN ASSOCIATES

(216) 226-8157

360

1

Sea World or are born at Sea World, we keep track of

2

them, and we mark down those behaviors that we can see

3

throughout their lives.

4

We have a living biography of a killer

5

whale's life.

6

changes dramatically, when we're younger to older.

7

Just like in human beings, our life

So, I am very cautious of people reading one

8

event and saying that's what you're going to be the rest

9

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.

CARLIN ASSOCIATES

(216) 226-8157

361

1

Q.

Right.

2

A.

To a very high degree, it does.

3

Q.

But it doesn't always work?

4

A.

Not always.

5

Q.

In fact, Sea World keeps track of instances

6

And it doesn't always work?

where it hasn't worked, where it's failed if you will?

7

A.

We do have an incident log, yes.

8

Q.

I'm sorry, you say an incident log?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

362

1

A.

They are.

2

Q.

And, so at Sea World, then, before a trainer

3

works with a killer whale in an interaction, they have

4

to determine what they want to consider or look at prior

5

to that interaction, right?

6

A.

That's correct.

7

Q.

And, Sea World leaves it to the trainer's

8

discretion to decide how much to review of those records

9

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.

CARLIN ASSOCIATES

(216) 226-8157

363

1

Q.

And, these incident reports are documents

2

that record behaviors of having the ability of being

3

aggressive?

4
5

A.

They are behaviors that we think could

possibly lead to aggression.

6

Q.

Maybe I could help you stick some more

7

qualifiers in there.

8

we think possibly could have the ability to leading to

9

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.

CARLIN ASSOCIATES

(216) 226-8157

364

1
2

Q.

And, should be recorded if it's an unusual

behavior?

3

A.

Yes.

4

Q.

And, unusual behavior is an unexpected

5
6

behavior?
A.

No, not necessarily.

It could be those

7

things we've seen in the past where a killer whale's

8

body position, the way it carries itself, the way it

9

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

CARLIN ASSOCIATES

(216) 226-8157

365

1

do that we haven't seen before.

2

Q.

Very few.

And, when you say you understand the

3

motivation behind it, you're not saying that you're --

4

the whale is not talking to you or anything, right?

5

A.

No, but when you spend ten hours a day, your

6

entire crew working with a killer whale, you start to

7

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

CARLIN ASSOCIATES

(216) 226-8157

366

1

what the whale might be thinking, feeling or what the

2

whale's next move might be?

3

A.

4

behaviorists.

5

behaviors of what a killer whale is doing, and based on

6

that, we to a high degree can predict what the outcome

7

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

CARLIN ASSOCIATES

(216) 226-8157

So, we

367

1

distracted or whether they do not want to perform or

2

whether they want to socially be with other whales or

3

they're breeding in the environment.

4

we can read because we have predictably seen that

5

behavior before.

6

Q.

All those things

Forgive me if I'm a little bit confused, but

7

when you say that you can't mind read the whales, but

8

then you're telling me that you know when they're

9

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

CARLIN ASSOCIATES

(216) 226-8157

368

1

are.

2

Q.

And, a high degree being that I think you

3

said something like 98 percent of the time, you can

4

predict what the whale is going to do?

5

A.

Actually, it's probably higher than that.

6

When you do the math, when you look at the amount of

7

incidents we have had, compared to the amount of

8

positive interactions we've had, the percentage is

9

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

CARLIN ASSOCIATES

(216) 226-8157

369

1

where I think we need to be when we talk about numbers.

2

We talk about incidents.

We know within the

3

incidents we've had 98 of them within our company since

4

1988, right?

5

Q.

Wait a second.

6

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

CARLIN ASSOCIATES

(216) 226-8157

370

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?

4

A.

Yes.

5

Q.

So, instead of talking about ticks, there are

6

110 incident reports that Sea World has reported in its

7

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?

CARLIN ASSOCIATES

(216) 226-8157

371

1

A.

Loro Parque.

2

Q.

Were there some from Marine Land that are --

3

A.

No, none from Marine Land.

4

Q.

How many from Loro Parque?

5

A.

There was only three.

And, again, I think we

6

need to go back and look at the number of incidents.

7

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

(Whereupon, Complainant's Exhibit C-6 was marked

20

for identification and entered into the record)

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.

CARLIN ASSOCIATES

(216) 226-8157

372

1

Q.

And, you've gathered these incident reports

2

together to produce to the Government during this case,

3

right?

4

A.

We did.

5

Q.

And, you have reviewed the incident reports,

6

right?

7

A.

Yes, we have.

8

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?

CARLIN ASSOCIATES

(216) 226-8157

Do

373

1

you want me to hold the ruling until you've reviewed it?

2

MS. GUNNIN:

3

JUDGE WELSCH:

4

MS. GUNNIN:

5

BY MR. BLACK:

6

Q.

Yes, Your Honor.

Not right now.

I'll reserve the ruling.
Okay, thank you.

So, this is all of the recorded incidents.

7

You say 101 recorded incidents from Sea World Park from

8

1988 through December 2009?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

374

1

A.

Yes.

2

Q.

And, then, the incident report I guess I

3

don't think I saw in here was the trainer -- and I'm

4

sorry, her first name was Claudia Bovhort (ph)?

5

A.

Bovhort, yes.

6

Q.

Can you spell that?

7

A.

No, I couldn't.

8

Q.

Because I didn't see that incident report in

10

A.

Um-hum.

11

Q.

And you've reviewed these.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

If I

375

1

could ask for those notes, it would help my accuracy in

2

being able to --

3

JUDGE WELSCH:

4

MR. BLACK:

5

Counsel, do you want him to -That's fine as long as we can look

at his notes.

6

JUDGE WELSCH:

You understand if you bring your

7

notes up here, he can look at your notes.

8

problem for you and your Counsel -- you might want to

9

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

CARLIN ASSOCIATES

(216) 226-8157

376

1

to the clerk's office.

2

don't want to stand over his shoulder if he's --

3

JUDGE WELSCH:

My concern is, like I say, I

My understanding was he was just

4

going to use his notes to refresh his recollection to

5

answer your question.

6

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

CARLIN ASSOCIATES

(216) 226-8157

377

1

separate incidents?

2

THE WITNESS:

Yes, sir.

3

JUDGE WELSCH:

Three of those whales in parks

4

that are not owned by Sea World and 98 owned by Sea

5

World, and then that would leave nine duplications; is

6

that correct?

7

THE WITNESS:

Correct.

8

JUDGE WELSCH:

Okay, thank you.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

378

1

A.

Okay.

2

Q.

So, now, before, I was asking about what year

3

Claudia Bovhort was injured, and you started to say, "I

4

might need to look at my notes"?

5

A.

I believe it was 2007.

6

Q.

And, she sustained some pretty serious

7

injuries?

8

A.

She sustained some injuries, yes.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

379

1

A.

They do.

2

Q.

And, they do some -- and let me hold on one

3

second here.

4

I just want to go briefly into the background

5

or to understand or so that the Judge understands what

6

Loro Parque is and how they work with Sea World whales.

7

So, Loro Parque obtained these whales through a leasing

8

or breeding loan?

9

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

CARLIN ASSOCIATES

(216) 226-8157

380

1

World of Florida?

2

A.

Correct.

3

Q.

And, that was so they could be trained on the

4

positive reinforcement operant conditioning whale

5

training?

6

A.

Yes.

7

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.

CARLIN ASSOCIATES

(216) 226-8157

381

1

Q.

And that's a "yes"?

2

A.

Yes, sir.

3

Q.

I'm not picking on you.

4

A.

Yes.

5

MS. GUNNIN:

Judge, may I raise an objection to

6

questioning on Loro Parque because Loro Parque is

7

clearly not an issue in this case, and I would like

8

Counsel to explain the basis for the questioning of a

9

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:

The objection is overruled.

Let's move on.
BY MR. BLACK:

CARLIN ASSOCIATES

(216) 226-8157

382

1

Q.

Now, when you made your -- during your five

2

visits, you didn't find any deficiencies with how Loro

3

Parque was applying operant conditioning with the killer

4

whale?

5

A.

No, I did not.

6

Q.

And, in fact, you found quite the opposite;

7

that they had a very good program?

8

A.

They do.

9

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-

CARLIN ASSOCIATES

(216) 226-8157

383

1

site trainer not by going onsite but by reviewing from

2

afar if you will?

3

A.

Yes.

4

Q.

Are you still doing that today?

5

A.

Yes, I am.

6

Q.

And, Loro Parque's program mirrors Sea

7

World's program with the killer whales, right?

8

A.

Yes.

9

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

CARLIN ASSOCIATES

(216) 226-8157

384

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?

4

A.

Yes.

5

Q.

So, as I just said, I guess, in argument to

6

the Judge, even though Loro Parque is not part of Sea

7

World or not part of Sea World parks and Entertainment,

8

you shared incident reports with them, right?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

385

1

A.

Correct.

2

Q.

And Brian Rokeach, you said he was a

3

supervisor, right?

4

A.

Yes, he was.

5

Q.

And, he was a supervisor in San Diego before

6

he went to Loro Parque?

7

A.

Yes, he was.

8

Q.

And he was a very experienced trainer.

9

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.

(No audible response).

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

CARLIN ASSOCIATES

(216) 226-8157

386

1

then grabbed her and pulled her underwater, grabbed her

2

by her arm, and at that time we initiated our emergency

3

response plan, and the animal went to the back pool with

4

Claudia and then released her and then we got her out of

5

the pool.

6
7

Q.

And in the process, she sustained some pretty

serious injuries?

8

A.

She did.

9

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.

(No audible response).

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

CARLIN ASSOCIATES

(216) 226-8157

387

1

session that occurred and it's even noted within the

2

incident report that we could have read better, that

3

could have prevented that animal from doing what it did.

4
5

Q.

So, the trainer or somebody assisting the

trainer made some mistakes?

6

A.

We believe so.

7

Q.

They failed to read certain cues?

8

A.

Well, we think so.

9

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

CARLIN ASSOCIATES

(216) 226-8157

388

1

Loro Parque.

2

Parque as Sea World's trainer, had supervisory trainer

3

on site?

4

A.

Yes.

5

Q.

And, he was actually involved in the

6

Brian Rokeach, who was serving at Loro

interactions which the incident occurred, right?

7

A.

Yes, he was.

8

Q.

And, this incident had a very bad outcome?

9

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

CARLIN ASSOCIATES

(216) 226-8157

389

1

template developed by Sea World that's used on this

2

incident report, right?

3

A.

Yes, sir.

4

Q.

And, just so the Court will understand how

5

incident reports work or what sort of information is

6

contained in them, this indicates that the park is Loro

7

Parque there, right, on the very first page of this

8

report?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

390

1
2

Q.

And, that's the same date as the incident

occurred, right?

3

A.

Correct.

4

Q.

And, the time of the incident, it says, 10:25

5

in the morning?

6

A.

Correct.

7

Q.

And, then, it says trainer involved, and it

8

says Alexis Martinez?

9

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

CARLIN ASSOCIATES

(216) 226-8157

391

1

says, "Ten minutes learning session"; do you see that?

2

A.

Yes.

3

Q.

And, Sea World and Loro Parque define their

4

sessions as being particular kinds of sessions, right?

5

A.

Yes, sir.

6

Q.

And this acronym "HELPERS" keeps sticking in

7

my mind of husbandry sessions?

8

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,

9

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?

CARLIN ASSOCIATES

(216) 226-8157

392

1

A.

Yes.

2

Q.

And it says he's an male Orca whale?

3

A.

Yes.

4

Q.

And, then, there's something that says last

5

rating for the animal and it says "100 percent."

6

see that?

Do you

7

A.

Yes, I do.

8

Q.

Can you explain for us what that is?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

393

1

A.

No, I don't know offhand.

2

Q.

And, then, there's a water work rating?

3

A.

Yes.

4

Q.

And that's also 100 percent?

5

A.

Correct.

6

Q.

And, we've had a discussion of water work

7

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.

CARLIN ASSOCIATES

(216) 226-8157

394

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

4

part of the animal's daily work schedule, and we want to

5

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?

8

A.

I don't have an answer for you on that.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

395

1

Q.

And then it has a little diagram, and it says

2

"Account for the placement of the animals in the system

3

immediately before the incident occurred"?

4

A.

Um-hum.

5

Q.

And, that's the same kind of thing that if

6

Sea World had prepared this report, it would show the

7

same type of information?

8

A.

Yes.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

396

1

A.

Yes.

2

Q.

And, then, there is an analysis here, and it

3

goes through an analysis.

4

in a very good mood today," right?

5

A.

6

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?

CARLIN ASSOCIATES

(216) 226-8157

397

1

A.

Yes.

2

Q.

And, I note again you say, "what he

3

perceives," but you don't know what he perceives, right?

4
5

A.

Well, based on his reaction to certain

behaviors, we can predict.

6

I mean, I think we're playing with words

7

here.

8

goes back to the fact that we can predict certain

9

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.

CARLIN ASSOCIATES

(216) 226-8157

398

1

Q.

And, so you would use different language than

2

that if you were writing this report about the whale

3

perceiving this or the whale thinking that?

4

A.

I don't know how I would react to that or how

5

I would write it without actually being there and

6

observing it.

7

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

CARLIN ASSOCIATES

(216) 226-8157

399

1

of incident."

2

Do you see that at the very top of the page?

3

A.

Yes.

4

Q.

And, then, it says -- it has some columns,

5

and the first column says "SD."

6

A.

7

to the animal.

8

Q.

9

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,

CARLIN ASSOCIATES

(216) 226-8157

400

1

some sort of other response so the whale that the

2

trainer thinks will make it more likely that they will

3

engage in that behavior again?

4

A.

Correct.

5

Q.

Have I gotten that right?

6

A.

Yes.

7

Q.

And, the last column says "Animal Response,"

8

and that's a description of what the trainers see in the

9

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

CARLIN ASSOCIATES

(216) 226-8157

401

1

trainer, Brian Rokeach -- well, I'll tell you what. The

2

mistakes are described on the fourth page of this

3

document.

That's the analysis, right?

4

A.

Yes, sir.

5

Q.

And, so on the third page, it indicates that

6

the whale did something it says incorrect in the second

7

column, the observed behavior.

Do you see that?

8

A.

Yes, I do.

9

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

CARLIN ASSOCIATES

(216) 226-8157

402

1

action.

2

reinforced with large snowball."

3

there and explain what that means?

4

A.

It says, "Returned to stage with Keto and
Can you help us out

The whales, of course, are not just treated

5

with reinforcement.

6

An ice ball is just something where we take crushed ice

7

and put it together in a ball, and they enjoy it,

8

chewing on ice.

9

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

CARLIN ASSOCIATES

(216) 226-8157

403

1

mean relaxed from the incorrect behavior?

2

A.

Correct.

3

Q.

Or relaxed from the ignoring, the least

4
5

reinforcing scenario?
A.

They come back and they wait for the response

6

of the trainer, and if they are relaxed for a certain

7

period of time -- it's a short period of time, it's only

8

about two or three seconds -- if they relax and if

9

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

CARLIN ASSOCIATES

(216) 226-8157

404

1
2

relaxed, do you give any reinforcement at that point?
THE WITNESS:

No, we don't.

I don't want to

3

reinforce the whale to be in a bad mood.

4

is we'll just move on.

5

behavior and totally ignore it.

6

JUDGE WELSCH:

What we'll do

We'll just move to the next

So, when they do an incorrect

7

behavior, you don't give them any reinforcement, but if

8

they appear after doing an incorrect behavior and in

9

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?

CARLIN ASSOCIATES

(216) 226-8157

405

1

A.

When I quoted you that number, if you average

2

out what we do with our animals in a session, if you add

3

up all the behaviors that we ask our animals to do, and

4

you look at the ones that they've done correctly and the

5

ones they do incorrectly, we run on an average of 98

6

percent correct within a session if you average them all

7

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.

CARLIN ASSOCIATES

(216) 226-8157

There was

406

1

years, we kept track of that very, very carefully.

2

during that time period, we found our percentage that I

3

just quoted to you.

4
5

Q.

So, that percentage comes from some period of

time when you actually tracked it?

6

A.

Yes, sir.

7

Q.

What period of time was that?

8

A.

It was approximately five years ago.

9

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

CARLIN ASSOCIATES

(216) 226-8157

407

1

the interactions?

2

THE WITNESS:

Well, again, it was averaging out.

3

Obviously, in this particular session, that was not the

4

case.

5

MS. GUNNIN:

6

JUDGE WELSCH:

7

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.

8

(Whereupon, a short recess

9

was taken off the record)

10
11

JUDGE WELSCH:

Let's go back on the record.

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,

CARLIN ASSOCIATES

(216) 226-8157

408

1

jumped back in.

2

go do a haul-out, which is the whale actually brings you

3

up on stage.

4

He was doing an underwater food push to

For whatever reason, he broke from the whale

5

probably because the run was not appropriate, so he

6

brought the whale back to the surface.

7

At that particular time, the whale was given a

8

call back signal to come back to the stage.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

409

1

Q.

Within minutes?

Hours?

2

A.

I don't remember the time frame but very

3

quickly.

4

Q.

And, as soon as Sea World learned that, all

5

the Sea World Parks pulled their trainers out of the

6

water?

7

A.

Yes.

8

Q.

And, they pulled them out of the water

9

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.

CARLIN ASSOCIATES

(216) 226-8157

410

1

Q.

Either by telephone or gathered together to

2

talk about it?

3

A.

Yes.

4

Q.

And made a determination that you needed to

5

provide a presentation to all of the Sea World trainers

6

at the Sea World Parks, the Sea World killer whale

7

trainers?

8

A.

We did.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

411

1
2

Q.

And, Loro Parque had this incident that

captured it on videotape, your film?

3

A.

Yes, they did.

4

Q.

And, to discuss with the trainers the

5

evaluation by Sea World of what happened, right?

6

A.

Yes, he did.

7

Q.

And, what Sea World thought went wrong?

8

A.

Yes.

9

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

CARLIN ASSOCIATES

(216) 226-8157

412

1

the incident, but it's many little things put together

2

that probably elevated Keto's emotions.

3

So, that's what we think started it.

I think

4

bringing the whale back to stage, who apparently was

5

fixated at staying with Alexis, and while the whale was

6

being held at stage, Alexis tried to scull out next to

7

the whale, and we felt like that was probably not the

8

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?

CARLIN ASSOCIATES

(216) 226-8157

413

1

A.

We believe so.

2

Q.

I mean, you don't think that they were

3

intentionally doing anything wrong?

4

A.

No.

5

Q.

That would be ridiculous.

6

So, despite trying to do everything right,

7

follow Sea World's training protocols, we have this

8

tragic outcome in this interaction with a killer whale

9

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

CARLIN ASSOCIATES

(216) 226-8157

414

1

everybody understood what to do if that situation ever

2

occurred again.

3

Q.

So, it was sort to fine tune the training

4

program, if you will.

That is, to try and do it a

5

little bit better the next time to avoid that terrible

6

outcome, right?

7

A.

Yes.

8

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

CARLIN ASSOCIATES

(216) 226-8157

415

1

when you make a mistake.

2

Q.

Okay, you communicated to them what; that if

3

you make a mistake, something really terrible could

4

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

8

something bad could happen?

9

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

CARLIN ASSOCIATES

(216) 226-8157

416

1

certainly wasn't a situation where you reconsidered

2

ought we to be using this training of the whales as the

3

way that we keep people safe?

4

A.

No, we didn't reevaluate the whole process.

5

Q.

You did not reevaluate the whole process?

6

A.

No.

7

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

You don't think you've

(216) 226-8157

417

1

A.

No.

2

Q.

Even after --

3

A.

You're constantly learning.

4

Q.

So, the evaluation is that mistakes could

5

happen, mistakes could have tragic outcomes, but they

6

haven't happened that much, so we're doing okay.

7

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.

CARLIN ASSOCIATES

(216) 226-8157

418

1

Q.

Up to the point of Mr. Martinez's death?

2

A.

Yes, and although that was a tragedy, all of

3

our experience and our success and our very high degree

4

of success rate with our animals indicated we didn't

5

need to respond that way.

6

Q.

So, how many bad events would have to happen

7

before you would consider that you needed to respond

8

that way?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

419

1
2

Q.

And, also not to have the trainer exit from

the water near the whale?

3

A.

Correct.

4

Q.

Were there any other lessons that were

5

learned from that?

6

A.

Those were the primary ones.

7

Q.

So, you said it wasn't a breakdown of the

8

process; that it was just showing that if errors are

9

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?

CARLIN ASSOCIATES

(216) 226-8157

420

1

A.

Yes.

2

Q.

So, at the highest very high levels of animal

3
4

trainers?
A.

Brian had a lot of experience in animal

5

training, and he had four previous years of working with

6

killer whales.

7

Yes, he had experience.

Did he make a mistake?

We believe so.

It's

8

hard for me to sit here and judge and blame and all that

9

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

CARLIN ASSOCIATES

(216) 226-8157

Some

421

1

didn't directly go to anything negative in the

2

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,

6

if there were 98 deaths, we wouldn't be here.

7

probably would have shut its doors.

8

these bad things have happened or these incidents would

9

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

CARLIN ASSOCIATES

(216) 226-8157

422

1

to know to not exit the water near where the whale is?

2

A.

We talked about it and trained it, yes.

3

Q.

And, in talking about it, you make sure that

4

trainers, in fact, know this really could be a really

5

bad thing to try to exit the water -- in a situation

6

where the whale exhibits aggression, exiting the water

7

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

(216) 226-8157

423

1

know how to answer that.

2

animal training.

3

general idea and the protocol you would follow in most

4

situations, and it's up to you to analyze the

5

environment, what's happening in that environment and

6

make your best judgement call.

7

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

8

Brian Rokeach, this very same trainer, and a whale named

9

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.

CARLIN ASSOCIATES

(216) 226-8157

424

1

MR. BLACK:

2

BY MR. BLACK:

3

Q.

4

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.

5

A.

Yes.

6

Q.

And, this is another incident report, same

7

sort of format as the incident report involving Alexis

8

Martinez?

9

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

CARLIN ASSOCIATES

(216) 226-8157

425

1

stage and then slammed towards trainer, Brian, in the

2

water, right?

3

A.

Um-hum.

4

Q.

That's a "yes"?

5

A.

Yes.

6

Q.

And the trainer on stage attempted to recall

7

Orkid, the whale, by using a hand slap, right?

8

A.

Yes.

9

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,

CARLIN ASSOCIATES

(216) 226-8157

426

1

tone," and he ignored the tone and continued to pull

2

Brian underwater, right?

3

A.

Yes.

4

Q.

And tone, what does "tone" mean?

5

A.

It's an underwater tone.

6

thing as our hand slap.

7

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?

CARLIN ASSOCIATES

(216) 226-8157

427

1

A.

Correct.

2

Q.

Am I reading that right?

3

A.

Yes.

4

Q.

So, now, Brian is trying to exit the stage in

5

an area where he is closer to the whale rather than

6

further away from the whale?

7

A.

It's not uncommon when whales are performing

8

correctly to dive off and swim in next to a whale, or

9

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

CARLIN ASSOCIATES

(216) 226-8157

428

1

where all the whales were.

2

is to remain out of the water with Orkid until

3

further notice."

4

Our plan at this time

So, if I'm reading that right -- and please

5

tell me if I'm not -- Brian by swimming where he

6

couldn't see all of the whales has now put himself in a

7

situation where the whale could do him harm, either

8

intentionally or otherwise.

9

A.

Yes.

Do you agree with that?

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

CARLIN ASSOCIATES

(216) 226-8157

429

1

all the whales are?

2

A.

In this particular situation, you're correct.

3

Q.

And, similarly with Alexis Martinez, swimming

4

out without knowing that the whale was under control at

5

the stage was the same type?

6

A.

Two completely different environments

7

conceptually.

8

already shown you a little bit of frustration, and the

9

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

CARLIN ASSOCIATES

(216) 226-8157

I mean, I'm

It doesn't

430

1

to what's going on.

2

grouping of whales are they?

3

Can you see everything going on?

4

here is more hindsight than actually Brian making the

5

wrong decision there.

6

Q.

What are the whales doing?

What

Are they tightly packed?
I mean, this learning

And, with many of these incident reports, in

7

fact, the learning is hindsight.

It's being able to

8

evaluate it calmly in the bright light of after the

9

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?

CARLIN ASSOCIATES

Roughly.

(216) 226-8157

I'm not

431

1

going to hold you to --

2

A.

I handful of times.

3

Q.

Well, a handful is -- tell me your definition

4
5
6
7

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

8

a few less, that would be a very serious incident,

9

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

CARLIN ASSOCIATES

(216) 226-8157

432

1

on you is perhaps something that you want to prevent

2

from happening, correct?

3

A.

Correct.

4

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,

7

you need to put it into context of how it occurs, when

8

it occurs and what animal does it.

9

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

CARLIN ASSOCIATES

(216) 226-8157

433

1

bottom and holding them there for too long versus

2

pulling food and letting them back up?

3

A.

I'm not understanding.

What do you mean?

4

Q.

Well, before the individual is dunked, is

5

there some sort of precursor to that so that the dunking

6

is a predictable outcome or a foreseeable outcome?

7

A.

Again, it's all based on the age of the

8

animal, the session, the trainer.

9

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 --

21

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

CARLIN ASSOCIATES

(216) 226-8157

434

1

probably occurred during the behaviors beforehand.

2

Either the trainers didn't see him or I'm reading into

3

this.

I don't know if I have a good answer for you.

4

Q.

Which page are you on?

5

A.

I'm on 1152, the actual, "give complete

6
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?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

435

1

Q.

If I'm understanding correctly, you're using

2

the term, "precursor," to mean something that caused the

3

event that you can see in hindsight but that nobody saw

4

necessarily in foresight?

5

A.

Say that again?

6

Q.

Sure.

7

Sorry.

Your precursors are an evaluation that

you make after the incident?

8

A.

Not necessarily, no.

9

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?

24

A.

It is, yes.

25

Q.

So, now, you have this data that the

CARLIN ASSOCIATES

(216) 226-8157

436

1

evaluation or the report is that there were no

2

precursors?

3

A.

Okay.

4

Q.

And, so now you have that as a data point

5

when they're operating with the whales in Sea World of

6

Florida, right?

7

A.

Yes.

8

Q.

And, so now you know that your fellow park,

9

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.

CARLIN ASSOCIATES

(216) 226-8157

437

1

Q.

And, we talked about whether whales are --

2

whether they're aggressive whales or not, this is a

3

whale that Sea World of California determined was too

4

aggressive and undependable to continue water work with,

5

right?

6

A.

Well, I would reword that.

7

Q.

Okay.

8

A.

Just to say that she was just historically

9

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

20
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.

CARLIN ASSOCIATES

(216) 226-8157

438

1

JUDGE WELSCH:

That's will be fine.

2

We stand adjourned until 9:00 tomorrow morning.

3

You're excused.

I will instruct you not to

4

discuss your testimony with other persons who may be

5

called later as witnesses in this case.

6
7
8

---o0o--(Whereupon, the proceedings
were adjourned at 4:40 p.m.)

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

439

1

C E R T I F I C A T E

2
3

I, NORMA CARLIN, a duly qualified and practicing

4

Court Reporter, do hereby certify that the foregoing

5

proceeding was recorded by me by means of recording in

6

the presence of all parties; that subsequent thereto, my

7

tapes were reduced to typewritten transcript under my

8

supervision; that the transcript herein is a true and

9

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 17th Day of October 2011, A.D.

13
14
15
16
17

BY:__________________________
Norma Carlin

18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

440

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

440

1
2

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

3
4
5
6
7
8
9
10
11
12

----------------------------------- x
)
)
SECRETARY OF LABOR,
)
)
Complainant,
)
)
-vs)
)
SEA WORLD OF FLORIDA, LLC,
)
)
Respondent,
)
)
)
------------------------------------x

OSHRC DOCKET
NO. 10-1705

13
14
15
16
17
18
19

TRANSCRIPT OF PROCEEDINGS
VOLUME III.
Before:

Judge Ken S. Welsch

Date:

Wednesday, September 21, 2011
9:00 a.m.

Place:

Siminole County Court House
1101 East First Street
Sanford, Florida 32771

20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

441

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

APPEARANCES:
On Behalf of Complainant:
JOHN BLACK, ESQ.
TREMELLE I. HOWARD-FISHBURNE
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

18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

442

1

I N D E X

2

WITNESSES

3

Name

4

Tompkins (Con't)

Direct

Cross

Redirect

Recross

444

568

653

661

Marked

Admitted

450
458
550
-

567
567
552
568

583

-

5

---o0o---

6

EXHIBITS

7

Complainant's

8

C-7
C-8
C-9
C-6

9
10
11
12

Description

Animal Profile
Tilikum Profile
Video

Respondent's
R-3

Cal-OSHA Citation

13
14
15
16
17
18
19
20
21
22
23
24
25

CARLIN ASSOCIATES

(216) 226-8157

443

1

P R O C E E D I N G S

2

Morning Session

3

9:00 a.m.

4

JUDGE WELSCH:

Let's go on the record.

5

This hearing is reconvened in the matter of

6

Secretary of Labor versus Sea World of Florida, LLC,

7

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.

CARLIN ASSOCIATES

(216) 226-8157

444

1

JUDGE WELSCH:

With regard to R-2, it has been

2

substituted to include all the pages, and R-2 for the

3

record is the Shamu Stadium area manual.

4

correct, Ms. Gunnin?

Is that

5

MS. GUNNIN:

Yes, Your Honor.

6

MR. BLACK:

And just for the record, I think

7

it's pages Bates Numbers Sea World 1849 through Sea

8

World 1927, inclusive.

9

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)

15

JUDGE WELSCH:

16
17
18
19

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

CARLIN ASSOCIATES

(216) 226-8157

445

1

things from yesterday before I move on to some other

2

things.

3
4

You recall we had talked about this incident
involving Brian Rokeach and Orkid in November of 2006?

5

A.

Correct.

6

Q.

And, in that incident, Mr. Rokeach suffered a

7

torn ankle tendon, right?

8

A.

Yes.

9

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.

25

JUDGE WELSCH:

You're not aware of the injury?

CARLIN ASSOCIATES

(216) 226-8157

446

1
2
3
4
5

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.

6

(Whereupon, a short recess

7

was taken off the record)

8

JUDGE WELSCH:

9

Mr. Tompkins, I will remind you again you're still

10

Let's go back on the record.

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.

CARLIN ASSOCIATES

(216) 226-8157

447

1

Q.

So, when you talk about the whales just

2

dunking the trainers sometimes, is that what you mean by

3

dunking?

4

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?

8

A.

Yes.

9

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?

23

A.

24

JUDGE WELSCH:

25

Correct.
I'm a little bit confused.

In

the Exhibit C-6, are there 100 separate incident reports

CARLIN ASSOCIATES

(216) 226-8157

448

1

or are there only 99 separate incident reports?

2

THE WITNESS:

We have 99 in this notebook.

3

of them are Sea World incidents.

4

Parque incident.

5
6

JUDGE WELSCH:

One of them is a Loro

And then there's another Loro

Parque incident but it's not in the notebook?

7

THE WITNESS:

Correct.

8

JUDGE WELSCH:

And that's involving Mr.

9

Martinez.

10

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?

CARLIN ASSOCIATES

(216) 226-8157

449

1

A.

No, I was not.

2

Q.

So, counting that last one in Exhibit C-6,

3

I'm sorry.

there are 100 then?

4

A.

Correct.

5

Q.

Including two from Loro Parque, right?

6

A.

Correct.

7

Q.

But not including another one from Loro

8

Parque that involved Claudia Bovhort?

9

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,

CARLIN ASSOCIATES

(216) 226-8157

450

1

are not recorded on the incident reports in addition to

2

Ms. Brancheau, right?

3

A.

Not that I know of.

4

Q.

But, you're pretty familiar with the

5

incidents that are in there, right?

6

A.

Yes, I am.

7

Q.

As the head zoological person?

8

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:

May I approach, Your Honor?

18

JUDGE WELSCH:

19

(Whereupon, Complainant's Exhibit C-7 was marked

20

for identification and entered into the record)

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

CARLIN ASSOCIATES

(216) 226-8157

451

1

death in February 2010?

2

A.

Yes, correct.

3

Q.

And, the profiles, in fact, do include short

4

mentions of some of the incidents, the aggression

5

incidents?

6

A.

Yes, they do.

7

Q.

So, why don't we look at the profile for the

8

killer whale named Kayla, and that would be starting at

9

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?

CARLIN ASSOCIATES

(216) 226-8157

452

1

A.

Okay.

2

Q.

The first incident it lists there is a 1992

3

Kayla pushing a trainer back and forth in the pool

4

during a relate session, right?

5

A.

Yes.

6

Q.

And, you know that that incident is not part

7

of this incident report log that you have just testified

8

to includes every single incident, right?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

453

1

A.

That's what it says.

2

Q.

If that happened, that would be an aggression

3

incident that should be recorded, right?

4

A.

Technically, yes.

5

Q.

Not just technically, that's the kind of

6

information --

7

A.

That's the criteria, yes.

8

Q.

There's no incident report in Exhibit C-6

9

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.

CARLIN ASSOCIATES

(216) 226-8157

454

1

that bullet point, "She fluke flashed the trainer and

2

later motioned her head, mouth open, toward the

3

trainer's hand.

No injury occurred."

4

A.

Okay.

5

Q.

That's the kind of aggression incident that

6

you would want to put in the aggression reports, right?

7

A.

It should be, yes.

8

Q.

But it's not?

9

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?

CARLIN ASSOCIATES

(216) 226-8157

"During the

455

1

A.

Um-hum.

2

Q.

That's a "yes"?

3

A.

From what I'm reading.

4

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

7

these were observations made by trainers.

8

obviously, we discussed very carefully what an incident

9

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."

CARLIN ASSOCIATES

(216) 226-8157

456

1
2

Now, in this particular -- on most of the
ones that you gave me, these do fit the criteria, yes.

3

Q.

I mean, there's no question that the ones, if

4

what is written there is accurate, would be written up

5

as aggression incidents, right?

6

A.

The summer 2004 is questionable to me because

7

it says the animal lunged up.

8

animals slide up, but that does not necessarily mean

9

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.

CARLIN ASSOCIATES

(216) 226-8157

457

1
2

Q.

And, that's not included in the incident

report either, the incident report that is C-6, the log.

3

A.

Um-hum.

4

Q.

That's a "yes"?

5

A.

Yes, sir.

6

Q.

And, lastly, for November 2006, again, Kayla

7

lunged at a trainer and in this instance -- and I'm

8

turning to Page 953 -- in this instance Kayla lunged at

9

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

-- it's not from the

(216) 226-8157

458

1

prior to incident with Dawn Brancheau.

2

(Whereupon, Complainant's Exhibit C-8 was marked

3

for identification and entered into the record)

4

BY MR. BLACK:

5

Q.

Mr. Tompkins, Exhibit C-8 is the Tilikum

6

animal profile that was prepared and/or revised in June

7

of 2010?

8

A.

Um-hum.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

459

1

A.

Right.

2

Q.

And, it doesn't indicate primary reinforcers

3

because the primary reinforcers that Sea World uses are

4

only the one that is using food as the reinforcement

5

mechanism, right?

6

A.

That's a given, yes.

7

Q.

And, then, it indicates that Tilikum finds

8

certain things adversive?

9

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

CARLIN ASSOCIATES

(216) 226-8157

460

1

objection that this is a document that was prepared

2

after the incident.

3

of knowledge beforehand, it occurred afterwards.

4

dated June 2010 at the bottom.

5

JUDGE WELSCH:

So, if it's used to show some kind

The record is so noted.

It's

I

6

think you said it was updated as of June 2010.

The

7

record is noted.

8

terms of you can go ahead and ask your questions, but

9

I'll take that into consideration.

I will overrule your objection in

10

MS. GUNNIN:

11

BY MR. BLACK:

12

Q.

Thank you, Your Honor.

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?

CARLIN ASSOCIATES

(216) 226-8157

461

1

A.

You just need higher reinforcing around him

2

when the birds steal his fish so he doesn't get

3

frustrated about that or if there's too much change.

4

We have since worked him very carefully and

5

cautiously making sure that changes introduced into his

6

life, and it's no longer adversity.

7

things, even though they may be on here, there is

8

normally a plan to actually work an animal through what

9

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

CARLIN ASSOCIATES

(216) 226-8157

462

1

see that?

2

A.

Yes, I see that.

3

Q.

And those aggressive tendencies, I don't

4

think that those aggressive tendencies that you show on

5

there were changed from the prior incident report.

6

guess if you want, you can compare Exhibit C-7 --

7

A.

Yes.

8

Q.

-- at Page 942.

9

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:

I

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.

CARLIN ASSOCIATES

(216) 226-8157

463

1

Q.

So, what it lists for aggressive tendencies

2

wasn't changed between 2009 and 2010 after the incident,

3

right?

4

A.

You're correct.

5

Q.

It says he has a negative history with

6

trainers in the water, right?

7

A.

It does.

8

Q.

And, it says:

9

"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,

CARLIN ASSOCIATES

(216) 226-8157

464

1

who fell, who either somehow got into the park after

2

hours and was drowned, correct?

3

A.

You're correct.

4

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

CARLIN ASSOCIATES

(216) 226-8157

465

1

what happened to the gentleman who came into the park.

2

We came in the next morning, and we found him drowned in

3

the pool.

4

So, to say that there was aggression

5

associated with that?

6

probably had a logical place to put it there because

7

there was no other place where it fits in, but I would

8

tell you right now, I think I would be very careful

9

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?

CARLIN ASSOCIATES

(216) 226-8157

466

1

A.

No, they're not, but trainers just don't read

2

this and walk away.

3

the trainers.

4

and go, "good luck."

We walk through these profiles with

We don't hand these out to new trainers

5

We sit down and approach it sitting down,

6

reading these and interpreting these, especially the

7

Tilikum people, which by the way are not new people.

8

They're a very experienced senior trainer.

9

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

(216) 226-8157

467

1

here was not to avoid the details of it, but I think for

2

the sensitivity of how it was written and how the

3

trainers read it and interpreted it, it protected

4

people's feelings.

5

Don't think for a second that that situation

6

is not described in detail or won't from this period on.

7

Any trainer, any senior, advanced senior trainer is not

8

going to know exactly what happened in that situation.

9

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

CARLIN ASSOCIATES

(216) 226-8157

468

1

document that somebody could go to and learn from a

2

written document more about what happened, right?

3

A.

At this particular point, we don't.

To

4

assume we won't have one in the future, I don't know if

5

that's accurate.

6

written document right now.

7

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

CARLIN ASSOCIATES

(216) 226-8157

469

1

about a particular animal.

We just don't give them a

2

notebook and say, "Good luck."

3

they learn.

These are a part of what

4

When you work an animal, you know their

5

historical history, you know the incident reports,

6

you're familiar with that.

7

them, your coach is going to sit down and verbally go

8

through all of these with you anyway.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

470

1

Q.

But, you would concede that once he had her

2

in the pool, he became aggressive such that she suffered

3

some pretty traumatic injuries?

4

A.

Yes.

5

Q.

Now, Tilikum, he's the largest killer whale

6

at Orlando?

7

A.

Yes.

8

Q.

In fact, he's the largest in all Sea World,

9

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?

CARLIN ASSOCIATES

(216) 226-8157

471

1

A.

Correct.

2

Q.

And these protocols, procedures were designed

3

prior to Ms. Brancheau's death a keep people away from

4

Tilikum except in very limited circumstances?

5

A.

It wasn't to keep people away from Tilikum.

6

It was to make sure that the people that were going to

7

interact with him were highly skilled, experienced

8

people that understood the rules specific to him.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

472

1

A.

No, it did not.

If you entered the water, we

2

assumed it would be at risk, but when you were working

3

him on the deck, we interacted with him much like we did

4

our other killer whales on the dry deck.

5

Q.

And, if you don't notice a precursor with

6

Tilikum prior to February of 2010, there was a risk of

7

harm to somebody who failed to notice that precursor if

8

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.

CARLIN ASSOCIATES

(216) 226-8157

We never

473

1

Q.

I understand but you assumed that if, in

2

fact, a precursor of the kind that you have listed in

3

your materials that there was a potential for the risk

4

of harm with Tilikum?

5

A.

Let me try to explain again what a precursor

6

is.

A precursor is a behavior that occurs before

7

another behavior.

8

that you can get that don't necessarily mean that the

9

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.

CARLIN ASSOCIATES

(216) 226-8157

474

1

A.

If you want to play with words, yes.

2

Q.

I just want to be precise and it's not

3

playing with words.

4

A.

Okay.

5

Q.

You wrote an article in the early 1990's on

6

aggression in cetacean and how to reduce exploring the

7

causes and possible reduction techniques of aggression?

8

A.

Yes, sir.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

475

1

Q.

No, I was just trying to say that this list

2

is the list of the ones that you really keep your eyes

3

open for.

4

A.

Okay.

5

Q.

You would agree with that, right?

6

A.

Yes.

7

Q.

I mean, that's why you have this list of what

8

you have in your experience identified somehow as an

9

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

CARLIN ASSOCIATES

(216) 226-8157

476

1

going to be aggression.

2

It's possible aggression.

And, maybe I'm getting caught up on semantics

3

of this and the black and white we're trying to create

4

here because it's all interpretative, it's all

5

contextual.

6

those are the things you need to keep an eye on, and the

7

whole idea of precursor behavior is so you can catch

8

things before they lead to something.

You know, what you're basically saying is

9

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?

CARLIN ASSOCIATES

(216) 226-8157

477

1

trainers have to not just read this but sort of have to

2

make the right decisions based on this, your list of

3

aggression precursors, based on other training you've

4

provided to them, based on the environment over here,

5

based on the temperature, the climate, the whales how

6

they are socially interacting, right?

7

A.

They do.

8

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

CARLIN ASSOCIATES

(216) 226-8157

478

1

able to interact with him and touch him and get closer

2

if he's in a lift station.

3

do protective contact, and there are areas where we can

4

actually contact him.

5

Q.

So, there are areas where we

In those areas that you can contact him, you

6

don't mean to say that putting him on a lift floor and

7

working with him like that is not what you would call

8

protective contact?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

479

1

Q.

There might even be more than a few, right?

2

A.

No, I don't think that.

3

Q.

So we could through some more that I didn't

4

find in there.

5

opinion?

6

A.

How many would be a few more in your

I don't know.

I don't know everything, I

7

don't know every page of every one of these profile

8

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.

CARLIN ASSOCIATES

(216) 226-8157

480

1
2

Q.

And, this is an incident report involving

Trainer Terry Cobert in 1991?

3

A.

Yes.

4

Q.

And, you were the supervisor in this

5

instance, right?

6

A.

Yes.

7

Q.

And the whale involved was Katerina?

8

A.

Yes.

9

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:

The objection is overruled.

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.

CARLIN ASSOCIATES

(216) 226-8157

481

1
2

Q.

And, those sound like the kinds of things

that should be in an incident report, right?

3

A.

(No audible response).

4

Q.

Grabbing a pony tail?

5

A.

It could.

We started our official paperwork

6

of actually doing these incidents in 1988.

I'm

7

speculating that these incidents could have occurred

8

prior to this where we didn't have actual paperwork

9

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.

CARLIN ASSOCIATES

(216) 226-8157

482

1

Q.

So, when it says, "recently," you're

2

speculating that perhaps it's more than three years

3

earlier?

4

A.

I don't know.

Q.

So, that would explain why these are not --

5

I don't have an answer for

you.

6
7

that's the only explanation you can give for why these

8

aren't in the incident reports?

9

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,

CARLIN ASSOCIATES

(216) 226-8157

483

1

you can but --

2

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?

8

A.

Let me read this in detail if I can then.

9

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

CARLIN ASSOCIATES

(216) 226-8157

484

1

similar with most of the same duties as what you're in

2

today?

3

A.

Yes.

4

Q.

So, he was your predecessor if you will?

5

A.

Yes.

6

Q.

And, so he would get the incident report and

7

get all the comments from the park curators, San Diego,

8

San Antonio and Orlando, and then he would sometimes

9

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?

CARLIN ASSOCIATES

(216) 226-8157

485

1

A.

Um-hum.

2

Q.

Sitting at Counsel's table behind me, right?

3

A.

Correct.

4

Q.

And also including Craig Thomas.

6

A.

Yes.

7

Q.

And, he's the assistant curator for Sea World

5

8

Do you see

that?

of Florida at Shamu Stadium, right?

9

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 --

CARLIN ASSOCIATES

(216) 226-8157

486

1

our criteria and our track record of incidents reduces

2

dramatically.

3

and less of these, and that's why these are so important

4

to us.

5

Q.

As we move forward in time, we have less

So, when you say mistakes are made, you're

6

saying that Sea World is now able to prevent trainers

7

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.

CARLIN ASSOCIATES

So, we have gotten

(216) 226-8157

487

1

a whole lot better.

2

If you look at our incident trend, if you

3

want to look at the amount that we currently have and

4

what we're recording, you can see the accuracy of what

5

we're talking about.

6

For Sea World of Florida, for example, from

7

April of 2005 to 2009, we didn't have one incident.

8

one.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

488

1

A.

Yes, there has.

2

Q.

A statistical analysis by a statistician?

3

A.

No.

4

Q.

So, when you say that, you're just sort of

5

looking at it and saying, "Wow, it looks like a downward

6

trend line," right?

7

A.

Correct.

8

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?

CARLIN ASSOCIATES

(216) 226-8157

489

1

A.

It was.

2

Q.

So, at the end of what you're describing as a

3

downward trend, in fact, we have some pretty bad things.

4

You would agree with me, right?

5

A.

Those specific events were, yes, very tragic.

6

Q.

And, so your choosing to interpret that we've

7

gotten safer and better at predicting, based on not

8

taking into account the severity of some of the

9

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

CARLIN ASSOCIATES

(216) 226-8157

So, we

490

1

fact that those are important situations, but you do

2

have to put it in the context of how many have we done

3

compared to those situations that have occurred that

4

have been tragic, and it's a very small percentage, very

5

small, and we need

6

Q.

to keep that in perspective.

Sir, with all due respect, we're not here at

7

this proceeding to be talking about all of the good

8

things.

9

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

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.

CARLIN ASSOCIATES

Have

And, I'm not

(216) 226-8157

491

1

back and realizing but putting the bigger picture of

2

those things, that's a very small percentage, very small

3

percentage of all the things that we've done right over

4

the 22 years.

5

Q.

But, not an acceptable percentage to continue

6

doing things the way that you were doing them prior to

7

Mr. Brancheau's death, right?

8

A.

It's never acceptable to have human life.

9

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

CARLIN ASSOCIATES

(216) 226-8157

492

1

out for 19 months, right?

2

A.

We're still doing an inclusive investigation

3

of everything that we do, how we want to move forward.

4

What happened.

5

looking at.

6

unlooked at, and that process takes a lot of time.

7

There are so many things that we're

We're not leaving anything unreviewed and

MR. BLACK:

Your Honor, now might be a good

8

time for our break.

9

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

(Whereupon, a short recess

18

was taken off the record)

19

JUDGE WELSCH:

20

Mr. Tompkins, I'll remind you you're still under

21

Let's go on the record.

oath.

22

Mr. Black, your witness.

23

MR. BLACK:

24

BY MR. BLACK:

25

Q.

Thank you, Your Honor.

Mr. Tompkins, just quickly to finish up with

CARLIN ASSOCIATES

(216) 226-8157

493

1

this incident report here in Exhibit C-6, if you would

2

turn to Page 536?

3

A.

(Witness Complies).

4

Q.

There is a part of this report that says,

5

Okay.

"originating park curator comments."

Do you see that?

6

A.

Yes.

7

Q.

That says, "Did the acts of the employee

8

contribute to this accident?"

And it says, "yes"?

9

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

CARLIN ASSOCIATES

(216) 226-8157

494

1

suspend water work with this animal, right?

2

A.

It was.

3

Q.

And, this animal, in fact, has a history of

4

aggression, at least at the time of this incident report

5

in 1996, right?

6

A.

She had previous aggressive situations, yes.

7

Q.

And, in all different types of sessions, it

8

says there under Bullet Point 2 for "corrective steps."

9

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

CARLIN ASSOCIATES

(216) 226-8157

495

1

interaction that they have with this whale, there have

2

been instances of aggression?

3

A.

Yes.

4

Q.

And, from your review of the incident

5

reports, that would be your recollection of this whale,

6

in fact?

7

A.

After reading this, yes.

8

Q.

This is a Sea World of Florida incident

9

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.

CARLIN ASSOCIATES

(216) 226-8157

496

1
2

Q.

And, this is an incident you said you're

familiar with, right?

3

A.

Yes.

4

Q.

In which a trainer was sitting on the edge of

5

the pool and putting her foot near the whale's mouth,

6

right?

7

A.

Yes.

8

Q.

And, after putting her foot near his mouth

9

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?

CARLIN ASSOCIATES

(216) 226-8157

497

1

A.

Correct.

2

Q.

Now, if you would advance to Page 733 under

3

"What corrective steps have been taken?"

4

that?

5

A.

Yes.

6

Q.

And it says:

7

Do you see

"We have initiated a safety

stand down," right?

8

A.

Yes, I read that.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

498

1

A.

Yes.

2

Q.

Now, one of the things that this incident

3

showed, if Sea World didn't already know it, is that

4

whales can pull trainers into the water from the side of

5

pools, right?

6

A.

If you are not working the whale and you put

7

yourself in that situation she had with that whale, in

8

that situation that did happen.

9

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."

CARLIN ASSOCIATES

(216) 226-8157

Do

499

1

you see that under length and type of session on Page

2

721?

3

A.

Six-minute romp, yes.

4

Q.

And, the romp, that's part of the show,

5

right?

6

A.

It is.

7

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,

CARLIN ASSOCIATES

(216) 226-8157

500

1

right?

2

A.

Yes.

3

Q.

And, then, under, "What could have been done

4

to prevent this accident?" it essentially says, "Nothing

5

that I could pull out of this incident to change,"

6

right?

7

A.

Yes.

8

Q.

And, that's what you wrote?

9

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.

That's what it says.

25

Q.

And those are your words, right?

CARLIN ASSOCIATES

(216) 226-8157

501

1

A.

It is.

2

Q.

So, as a result of this incident, you

3

instructed all trainers to treat this whale as though

4

all sessions had the potential of unpredictable

5

aggression, right?

6

A.

Yes.

7

Q.

So, if you can't predict -- well, before I

8

ask that, it also as the corrective step, it has,

9

"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

CARLIN ASSOCIATES

(216) 226-8157

502

1

whale because of these rare moments of unpredictability

2

with all whales, but with her we saw it more often, we

3

started to work her differently.

4

We changed the way the senior staff worked

5

her, we watched very carefully water work sessions.

6

It's not like we just ignored this, went on and did

7

nothing more than what this tells me right here is that

8

we recognized we didn't see something.

9

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

CARLIN ASSOCIATES

(216) 226-8157

503

1

of our animals even in the best of situations."

2

are your words, right?

3

A.

Those

Yes, and I will tell you that we have

4

obviously learned a lot more since this particular time,

5

and if I had to go back in time, I probably would have

6

written this differently.

7

Q.

Well, I appreciate --

8

A.

You have to put it into context.

9

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

CARLIN ASSOCIATES

It could be

(216) 226-8157

504

1

confusion.

2

do.

3

swam away.

The whale might not have known what the to

It may have just refused how to do it.

4

It may have

You either take that into context of it's not

5

like 98 percent good and two percent bad.

6

that 98 percent of the time they're doing exactly what

7

we're asking them to do, and the other two percent,

8

something else is happening.

9

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

Does that make sense?

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

CARLIN ASSOCIATES

(216) 226-8157

That's why

505

1

have our coaching program, that's why trainers spend

2

years by the side of the pool.

3

Although it sounds sort of complicated in its

4

process -- I mean, we've talked about these SOP's and

5

books and incidents and all that, it sounds so confusing

6

with so much going on.

7

It's not unlike driving a car.

When you

8

drive a car, there's a lot to learn, but then when you

9

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

CARLIN ASSOCIATES

(216) 226-8157

506

1
2

they recognize the unpredictability of animals, right?
A.

When you spend ten hours a day your entire

3

career, and your years around these animals, you become

4

very familiar with that animal and the environment

5

around you.

6

It's not that thinking process where you're

7

constantly trying to evaluate and take everything in

8

more than it becomes a part of your environment.

9

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,

CARLIN ASSOCIATES

(216) 226-8157

507

1

another whale next to you, it might have been an

2

environmental cue, but as we move forward in time, we

3

are recognizing what our cues are, recognizable cues

4

that you can see.

5

And, because we've learned how to recognize

6

that, we have minimized aggression to a very safe level

7

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,

CARLIN ASSOCIATES

(216) 226-8157

508

1
2

right?
A.

We think it's unpredictable.

It also tells

3

us that we need to probably be better in our environment

4

of watching what's going on.

5

this a learning curve.

6

every year.

7

embarrassed about that because at the time, that's what

8

we thought.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

509

1

A.

In this particular situation, that was our

2

assessment, but as we move forward in time, like I'm

3

telling you, I don't think that we would say that again.

4

Q.

Well, certainly --

5

A.

It could happen.

6

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?

CARLIN ASSOCIATES

(216) 226-8157

510

1

A.

No, I have to put Tilikum in a completely

2

different classification that he is a nonwater work

3

animal, and we had a situation where somebody got in the

4

water with him.

5

He's different.

6

What he did was unpredictable to us.

He's a different class of animal, no doubt

7

about it.

8

treat him different because of his history and where he

9

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)

CARLIN ASSOCIATES

(216) 226-8157

511

1
2

Q.

Mr. Tompkins, have you found the incident

report beginning on Page 2659?

3

A.

Yes, I have.

4

Q.

And, this is an incident also at Sea World of

5

Florida?

6

A.

Yes.

7

Q.

This occurred on April 1, 2005, with the

8

trainer Sam Davis?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

512

1

Q.

This is one of them.

And, all of those 12

2

injuries, where did you get the information that those

3

injuries occurred?

4

A.

Either from the incident report or from the

5

park that had that incident.

6

you know, this book that you see here was created for

7

this event that we have here.

8

these incidents with each park --

9

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

CARLIN ASSOCIATES

(216) 226-8157

513

1

in an injury report, or it's based on something that you

2

were orally told by somebody from the other parks?

3

A.

Correct, yes.

4

Q.

And, would that be information that you

5

obtained recently, the oral information or is that

6

something that you are relying on from back whenever the

7

injury occurred?

8

A.

It's a combination of talking to the right

9

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

Sea World of Florida.

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

CARLIN ASSOCIATES

(216) 226-8157

514

1

We kept our incidents -- could we have missed

2

to few?

Absolutely.

3

the profiles, there are a few things brought up here,

4

but the bottom line is somewhere in a written document,

5

not that we were hiding it from anybody.

6

wrote it down, we have it somewhere what occurred with

7

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

CARLIN ASSOCIATES

(216) 226-8157

I know it

515

1

looks expansive and it looks big, but our object and our

2

purpose of using this was, again, as an effective

3

learning tool for people to move forward with these

4

animals.

5

I'm personally thrilled by the fact that

6

we've got this type of data, and it's to my opinion

7

after reading everything, how much is there and the

8

accuracy that it's put in here.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

516

1

Q.

And it Claudia Bovhort (ph)?

2

A.

Yes, it does.

3

Q.

And, it also excludes Ms. Brancheau's death?

4

A.

It does.

5

Q.

And, before 1988 or 1989, there were several

6

serious injuries that occurred at the Sea World Parks,

7

right?

8

A.

Say that again?

9

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

(216) 226-8157

517

1
2

Q.

I think maybe I asked a poor question or you

didn't understand me; one or the other.

3

A.

Okay.

4

Q.

I was talking about before you started

5

keeping these incident reports in 1988, there were five

6

or six serious injuries that occurred in that year

7

immediately proceeding, right?

8

A.

In 1989 is what we're saying?

9

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

CARLIN ASSOCIATES

(216) 226-8157

518

1

approach to recordkeeping with our incident program.

2

So, the accuracy of me being able to speak to

3

incidents prior to '88, I don't think I would be very

4

accurate because we don't have paperwork to substantiate

5

any frequency or intensity.

6

information.

7

Q.

I just don't have that

Turning back to this incident report you have

8

in front of you involving Sam Davis, if you would turn

9

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

CARLIN ASSOCIATES

(216) 226-8157

519

1

out later is that through talking with the trainers, we

2

didn't see it the first day, but after sitting down and

3

evaluating more, we realized that there were whale

4

communications going out back.

5

who was a dominant female in the back.

6

Q.

"He" being Taku?

7

A.

Taku.

He is the son of Katina

He was an offspring of one of our

8

adult females in back, and I will tell you looking back

9

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

CARLIN ASSOCIATES

(216) 226-8157

520

1

additional information in an incident report or a

2

revised incident report putting this new additional

3

important information that you learned, right?

4

A.

Right.

5

Q.

Much like in the incident with Ms. Brancheau,

6

you still haven't prepared an incident report for that,

7

right?

8

A.

9

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

(216) 226-8157

521

1

long after or at some point after this incident

2

occurred?

3

A.

The evaluation of -- those trainers can only

4

see what's happening in the front, but once we sit and

5

talk with the trainers in the back, of course, that

6

becomes new information for us.

7

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?

CARLIN ASSOCIATES

(216) 226-8157

522

1

A.

He made a lap of the pool.

I actually was

2

sitting in the audience.

3

occur.

4

first time and then swam by, made a loop of the pool and

5

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?

8

A.

Correct.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

523

1

Q.

And, so Sea World concluded that the only way

2

to prevent this accident, what could have been done to

3

prevent this accident, "Refrain from water work Taku,"

4

right?

I'm on Page 2661.

I'm sorry if I skipped ahead.

5

A.

I see that, yes.

6

Q.

So, that was the conclusion was that what

7

should have been done is not do water work at all,

8

right?

9

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

(216) 226-8157

524

1

everybody out of the water.

2

This happened to be in the water, and we

3

wanted to make sure that Taku did not rehearse or even

4

think about that situation in future sessions.

5

Q.

Also, in doing that it was certainly safer to

6

prevent rehearsals or prevent injury to the trainers by

7

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

525

1

A.

Yes.

2

Q.

And, then, further down on this page, the

3

corporate curator of animal training, Mr. Lacinak, he

4

concurs with the assessment and the comments on this

5

incident, right?

6

A.

Yes.

7

Q.

And, then, he goes on to say, "hindsight is

8

20/20."

Do you see that?

9

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

CARLIN ASSOCIATES

(216) 226-8157

526

1

that you want to hear about animal husbandry.

2

JUDGE WELSCH:

3

record is so noted.

4

BY MR. BLACK:

5

Q.

6

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?

9

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

(216) 226-8157

527

1

A.

Correct.

2

Q.

And, this was a whale that already Sea World

3

had stopped doing water work with at this point in time,

4

right?

5

A.

Yes.

6

Q.

And, had stopped doing water work for a year

7

or thereabouts, maybe eight months prior to this

8

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

CARLIN ASSOCIATES

(216) 226-8157

528

1

with Taima and Tilikum for a year, right?

2

A.

Yes.

3

Q.

And, also, we have included Kasatka in this

4

approach due to her recent incident, right?

5

A.

(No audible response).

6

Q.

I've read that correctly?

7

A.

Yes.

8

Q.

And, that's, in fact, what happened, right?

9

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

(216) 226-8157

529

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

3

that's at water height.

4

whale could be here.

5

you can walk if you need to, or you can be dry on the

6

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?

9

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

(216) 226-8157

530

1

a safer trainer and animal interaction area, right?

2

A.

Yes.

3

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?

9

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

(216) 226-8157

531

1
2

Q.

Most of the potential risks.

And those risks

would include potential drowning, right?

3

A.

Drowning of a --

4

Q.

Of a trainer; not of the whale.

5

A.

Theoretically, yes.

6

Q.

I mean, those are the potential risks that

7

Sea World had seen with Orkid and Kasatka, right?

8

A.

That they would drown somebody?

9

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

(216) 226-8157

532

1

A.

Yes.

2

Q.

Who is now at Sea World of Florida?

3

A.

Yes, sir.

4

Q.

As one of your assistant supervisors at Sea

5

World of Florida?

6

A.

Yes, she is.

7

Q.

How long had she been an assistant supervisor

8

prior to -- let me ask, was she an assistant supervisor

9

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.

CARLIN ASSOCIATES

(216) 226-8157

533

1

Q.

Sure.

2

A.

(Reviewing document).

3

Q.

So, this was an incident where a whale named

Okay.

4

Winnie was performing a lineup and receiving tactile

5

both of which she accepted, right?

6

A.

Yes.

7

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?

CARLIN ASSOCIATES

(216) 226-8157

534

1
2

A.

The way I read it, "She slowly pulled to the

right and I fell in the pool."

3

Q.

Okay.

4

A.

So, she lost her balance and fell in the

Q.

That's fine.

5
6

pool.
Now, if you would turn back to

7

the preceding Page 611, it indicates that, "No

8

precursors were observed.

9

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.

(No audible response).

24

Q.

That's what it says, right?

25

A.

Yes.

CARLIN ASSOCIATES

(216) 226-8157

535

1

Q.

And, as far as what could have been done to

2

prevent this accident, it says that you can prevent it

3

through stronger de-sense of loose articles, right?

4

A.

Yes.

5

Q.

And, what that means is somehow you could

6

train the whale to be desensitized to, for example, the

7

sweatshirt that was loosely being worn by this trainer,

8

correct?

9

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

CARLIN ASSOCIATES

(216) 226-8157

536

1

end.

I know we've used that word, and I want to explain

2

it a little bit.

3

De-sense is preparing an animal to react to

4

an environment for all sorts of activities and things

5

occurring in the pool.

6

get them familiar with something.

7

de-sense, you familiarize the animals with people in the

8

water.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

537

1
2

Q.

I understand but the whales have not always

responded and let the trainer out without injury, right?

3

A.

Yes.

4

Q.

So, the de-sense session, you say training to

5

ignore personal objects and trainer gear, or the report

6

says training to ignore personal objects and trainer

7

gear, right?

8

A.

Yes.

9

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,

CARLIN ASSOCIATES

(216) 226-8157

538

1

this novel incident, this novel occurrence -- will you

2

accept those words?

3

A.

Yes.

4

Q.

And Page 614, California Sea World says in

5

critiquing the de-sense, it says, "Our hope is" -- I'm

6

reading three lines up from the bottom of Sea World of

7

California's comments -- "But, the hope is that you plan

8

to eventually desensitize all the whales to work well

9

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

CARLIN ASSOCIATES

(216) 226-8157

539

1

this.

We have been doing water de-sense for many years

2

prior to this.

3

They're just restating the obvious in my mind

4

to refresh everybody's minds that those are the

5

situations that we need to prepare with de-sense.

6

Q.

That we need to keep hair and objects and

7

what we're wearing away from the whales or else have the

8

whales not react to them?

9

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

CARLIN ASSOCIATES

(216) 226-8157

540

1

prevents a whale from reacting to these kinds of items,

2

novel or otherwise, right?

3

A.

Yes.

4

Q.

Now, I want to talk about this whale,

5

Kasatka.

That's one that Sea World owns, right?

6

A.

Yes.

7

Q.

That's a female killer whale in San Diego?

8

A.

Yes.

9

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?

CARLIN ASSOCIATES

Okay.

(216) 226-8157

541

1

A.

Yes.

2

Q.

And, you note that it's from June of 1999,

3

and involving a trainer Ken Peters, right, on Page 681?

4

A.

Let me just look.

5

Q.

And, again, this is the whale, Kasatka,

6

Yes.

right?

7

A.

It is.

8

Q.

And, the type of incident involved here was a

9

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?

CARLIN ASSOCIATES

(216) 226-8157

542

1

A.

Yes.

2

Q.

And, obviously, that's something that Sea

3

World doesn't want to happen, right?

4

A.

Yes.

5

Q.

Because if the whale grabs the trainer's

6

hand, the whale could potentially drag, if you will, the

7

trainer anywhere in the pool, right?

8

A.

Yes.

9

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

CARLIN ASSOCIATES

(216) 226-8157

543

1

observed social interactions," or essentially

2

precursors, right?

3

A.

Yes.

4

Q.

And, these are questions, these are things

5

that Sea World wants to know.

6

of the incident, right?

Part of it is evaluation

7

A.

Yes.

8

Q.

They wouldn't be asking it if they didn't

9

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

CARLIN ASSOCIATES

(216) 226-8157

544

1

incident," that's something that Sea World wanted to

2

evaluate, right?

3

A.

Yes.

4

Q.

This is a question that suggests that perhaps

5

there's something that could be done; that we could do

6

differently, right?

7

A.

It implies that, yes.

8

Q.

Because --

9

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

CARLIN ASSOCIATES

(216) 226-8157

545

1

first sentence it states:

"We should not have entered

2

the water with Kasatka due to the social precursors that

3

existed," right?

4

A.

Yes.

5

Q.

I've read that correct?

6

A.

Yes.

7

Q.

So, either the trainer missed the precursor

8

or the trainer failed to respond properly, right?

9

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

CARLIN ASSOCIATES

(216) 226-8157

546

1

related to an incident that happened in 1989, right?

2

A.

Say that again?

I'm sorry.

3

Q.

This report that we're looking at is one

4

that deals with an incident that happened in 1999,

5

right?

6

A.

Yes.

7

Q.

And, on the third line on Page 9, it

8

indicates this was an unfortunate incident.

It states:

9

"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

CARLIN ASSOCIATES

(216) 226-8157

This

547

1

occurred.

2

giving us feedback to what they saw.

3

in the water based on the fact that we didn't and were

4

not able to communicate to him what was observed in the

5

social structure behind there.

6

We had enough observers there watching and
We put a trainer

And, in my assessment which I would think

7

that everybody within the system would think this was a

8

great learning tool and the fact that we had very clear

9

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?

CARLIN ASSOCIATES

(216) 226-8157

I'm

548

1

sorry, it's great because you don't see things like this

2

very often?

3

A.

No, we don't.

So when we do have a

4

situation, we have a clear plan of what we could have

5

done better that we believe would have changed the

6

outcome of it, yes, it becomes an excellent training

7

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.

CARLIN ASSOCIATES

(216) 226-8157

The video is

549

1

somewhere in the neighborhood of ten minutes.

2

probably then have about ten to fifteen more minutes of

3

questioning in addition to the video.

4

expect to be asking any questions during the video.

5

I'll just play the video.

6

JUDGE WELSCH:

7

finish your examination.

8

before you start with Sea World's Cross-Examination.

9

MS. GUNNIN:

I

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

(Whereupon, the morning session

25

was adjourned at 12:10 p.m.)

CARLIN ASSOCIATES

(216) 226-8157

550

1

P R O C E E D I N G S

2

Afternoon Session

3

1:20 p.m.

4

(Whereupon, Complainant's Exhibit C-9 was marked

5

for identification entered into the record).

6

JUDGE WELSCH:

Mr. Black, give me some information

7

as to what we're doing.

8

marked for identification as Exhibit C-9.

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.

I

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,

CARLIN ASSOCIATES

(216) 226-8157

551

1

that it's not a problem.

2

MR. COE:

It's not, Your Honor.

3

JUDGE WELSCH:

4

MR. BLACK:

Thank you.
I said I wasn't going to ask any

5

questions during the video, but I just want to ask two

6

questions.

7

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

(216) 226-8157

552

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?

4

JUDGE WELSCH:

Any objections to C-9?

5

MS. GUNNIN:

I'm sorry, I did not hear.

6

MR. BLACK:

I'm offering C-9.

7

JUDGE WELSCH:

The video.

8

MS. GUNNIN:

No objection.

9

JUDGE WELSCH:

C-9 is admitted without

10

objection.

11

(Whereupon, Complainant's Exhibit C-9, previously

12

marked, was admitted into evidence)

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.

CARLIN ASSOCIATES

(216) 226-8157

553

1

Q.

And, the video that we saw, the reason that

2

there was such extensive video, that was the video that

3

was shot by cameras run or operated by Sea World at

4

Florida?

5

A.

Yes.

6

Q.

And that was during a show, right?

7

A.

Yes, it was.

8

Q.

If you would turn to Page 1375 where it's got

9

"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?

CARLIN ASSOCIATES

(216) 226-8157

554

1

A.

In that type of water work setting.

2

Q.

In any setting?

3

A.

We still worked her.

4

her and did dry work with her.

5

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?

8

A.

Yes.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

555

1

A.

No.

2

Q.

I mean, that wasn't a surprising response?

3

A.

No, not after an incident like that.

4

Q.

And, they pulled them so they could evaluate

5

what to do next?

6

A.

Yes.

7

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

CARLIN ASSOCIATES

Could we have added

(216) 226-8157

556

1

videos to help back stage viewing, a lot of system and

2

SOP review was done, and what we found out is that we

3

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?

6

A.

No.

7

Q.

No, you didn't conclude that?

8

A.

No, we don't think that system was broke.

9

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

CARLIN ASSOCIATES

(216) 226-8157

557

1

decided not to do water work with Orkid as well, right?

2

A.

Correct, yes.

3

Q.

And, again, stopping water work with that

4

whale was a means to protect the trainers, right?

5

A.

Yes.

6

Q.

A means to address any hazard posed by Orkid,

7

right?

8

A.

Yes.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

558

1

A.

Yes.

2

Q.

There was a whale on there, Kalina, who had

3

been involved in ten incidents, right?

4

A.

Yes.

5

Q.

And, Kalina that was the original baby Shamu

6

born in captivity?

7

A.

Yes.

8

Q.

And her life, she was at Sea World of Florida

9

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

CARLIN ASSOCIATES

(216) 226-8157

559

1

incidents since 1999?

2

A.

Are you looking at a specific --

3

Q.

I am not.

4

It's not on this document here.

It's based on what is in C-6.

5

A.

Um-hum.

6

Q.

And, you don't have any reason to doubt that

7

number?

8

A.

No.

9

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

CARLIN ASSOCIATES

(216) 226-8157

560

1

Kayla this morning and her animal profile, and we

2

observed seven incidents on our animal profile, right?

3

A.

Yes.

4

Q.

And, seven that is that occurred after 1999,

5

right?

6

"unrecorded," I mean they weren't in the incident logs

7

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?

CARLIN ASSOCIATES

(216) 226-8157

561

1

A.

What do you mean by "serious"?

2

Q.

When I say "it shows," the record shows that

3

there were several serious incidents after that, and

4

I'll give you an example of what I mean by serious.

5

A.

Yes.

6

Q.

Obviously, Ken Peters, right?

7

A.

Yes.

8

Q.

Obviously, the Orkid incident?

9

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,

CARLIN ASSOCIATES

(216) 226-8157

562

1

there's a page, it's the very last page that the trainer

2

signs, right?

3

A.

Yes.

4

Q.

And, that page has language identical at Sea

5

World of California and at Sea World of Texas as it does

6

with the Florida language, right?

7
8

A.

I don't know what language you're talking

about.

9

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

CARLIN ASSOCIATES

(216) 226-8157

563

1

going to ask you about that.

2

At Loro Parque after Alexis Martinez was

3

killed, Loro Parque stopped doing water work with its

4

whales, right?

5

A.

Yes, they did.

6

Q.

And, they have ceased doing water work with

7

their whales, apparently a permanent decision so far as

8

you know, right?

9

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

CARLIN ASSOCIATES

(216) 226-8157

564

1

permitting or his dealings with the government.

2

Q.

So, you haven't sought to obtain a copy of

3

that report and to review what that report might have

4

found and recommended?

5

A.

I haven't.

6

Q.

Well, as the head corporate curator of

7

animals at Sea World Parks and Entertainment, you have

8

not either personally or directed somebody to do that?

9

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.

CARLIN ASSOCIATES

I don't have that

(216) 226-8157

565

1

document.

I don't know what they wrote; I don't know

2

what they put.

3

Q.

So, you're saying you would like to know

4

because it's possible that if they found that being in

5

the water with the whales was inherently dangerous, then

6

Sea World would consider not getting back in the water

7

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

CARLIN ASSOCIATES

(216) 226-8157

566

1

running that program, you would not have ceased water

2

work with the whales?

3

A.

I'm not saying I would not have ceased water

4

work and evaluated, but just as we are trying right now,

5

our goal is to see what we can do at being better at

6

being underwater with the animals.

7

I probably would have taken.

8

Q.

9

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

CARLIN ASSOCIATES

(216) 226-8157

567

1

their theory of operant conditioning works to protect

2

trainers, right?

3

A.

Yes.

4

MR. BLACK:

5

JUDGE WELSCH:

No further questions, Your Honor.
Mr. Black, are you offering

6

Exhibits C-7 and C-8?

7

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

No objection, Your Honor.
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

CARLIN ASSOCIATES

(216) 226-8157

568

1

had a chance to look at the reports, I think.

2

been able to do that?

3

MS. GUNNIN:

Yes, Your Honor.

Have you

We only would

4

like to reserve an objection about incident reports

5

involving other parks that is being California and

6

Texas, and that is because the issue in the case is

7

handled as Sea World of Florida, LLC, a separately

8

incorporated entity.

9

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

(Whereupon, Complainant's Exhibit C-6, previously

15

marked, was admitted into evidence)

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.

CARLIN ASSOCIATES

(216) 226-8157

569

1

We have talked a lot about the incident

2

reports today.

3

Mr. Black.

4

owners of Sea World, do you recall what that would have

5

been?

6

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,

7

and that was the date that Sea World actually was

8

created.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

570

1
2

JUDGE WELSCH:

So, 1964 was when the Sea World

of California was started?

3

THE WITNESS:

Yes, sir, that was the start of

4

Sea World.

5

started building other parks.

6

Sea World of Orlando was created in 1974, San Antonio

7

was four or five years later, we had a Sea World of Ohio

8

park that was created that was in existence for a while.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

571

1

A.

There was Anheuser-Busch.

2

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?

8

A.

There was InBev.

9

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,

CARLIN ASSOCIATES

(216) 226-8157

572

1

Q.

And, those parks are separately incorporated?

2

A.

They are.

3

Q.

And, you worked for Sea World of Florida

4

prior to working for the corporate entity?

5

A.

I did.

6

Q.

And, when did you start at Sea World of

7

Florida?

8

A.

February 12, 1978.

9

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

CARLIN ASSOCIATES

(216) 226-8157

573

1

of San Diego?

2

A.

That would be 1987.

3

Q.

So, since 1987 you would have been at Sea

4

World of Florida until you moved to the Sea World Parks

5

and Entertainment Corporation?

6

A.

Yes, ma'am.

7

Q.

And, from a park structure at Sea World of

8

Florida, when you were the -- was it the curator that

9

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

CARLIN ASSOCIATES

(216) 226-8157

574

1

management of the staff and the animals went to Kelly

2

Flaherty Clark.

3

Q.

And, Ms. Clark reports to Mr. Kerivan?

4

A.

John Kerivan.

5

Q.

And Mr. Kerivan reports to the park

6

president?

7

A.

Yes, and Brad Andrews.

8

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

(216) 226-8157

So,

I stayed at

575

1

I had about a year and a half time I worked

2

at the Sea Lion and Otter Stadium because at that time,

3

we only had two stadiums.

4

we had the Sea Lion and Otter Stadium.

5

the two areas that we had trainers.

6

period of time I went to Sea Lion and Otter for about a

7

year and a half.

8

take more of a leadership role at the Shamu Stadium.

9

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

(216) 226-8157

576

1

Q.

Now, the career ladder is not the same today

2

or in January of 2010 as it was when you started,

3

correct?

4

A.

No, it is not.

5

Q.

How is it different?

6

A.

Well, the progression through those levels

7

are much different and much more methodical in depth.

8

We're talking 30 years ago.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

577

1

We have an approval process for that progression plan,

2

and none of this existed when I started.

3

now, and it is very methodical, very in-depth, and very

4

inclusive of the information that you need to know and

5

the skill sets you need to be tested on and your

6

abilities and talents.

But, I look

7

And, even when you get into the area, even if

8

you have this checkoff of knowing everything that may be

9

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

(216) 226-8157

578

1

sit down, and when you're a new person you actually have

2

a coach with you, and your coach obviously has available

3

all of these manuals as well as other things, training

4

tools, career ladder descriptions, area do's and

5

don't's, all of these are incorporated in here.

6

your coach sits down with you and, obviously, we don't

7

hand you the incident reports the first day you come

8

because you're not working whales.

9

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

(216) 226-8157

579

1

or three years of your life, you're not making any

2

decisions yourself.

3

experienced person who is coaching you along the way.

4

You're standing next to a very

It's virtually impossible for you to make a

5

mistake because of the amount of resources and

6

experience you have standing next to you, walking you

7

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

CARLIN ASSOCIATES

(216) 226-8157

Am I to

580

1

for all of these corporations, separate corporations.

2

THE WITNESS:

I oversee all of the animal

3

training in all of our Sea World Parks, but when I say

4

that, I work very closely with Kelly and the other two

5

curators.

6

I don't mandate.

We discuss as a collective

7

group.

8

experience, so does Kelly and so does Mr. Garver and so

9

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

CARLIN ASSOCIATES

(216) 226-8157

581

1

you have described as applicable to Sea World of Orlando

2

are also the same procedures that are applicable to Sea

3

World of San Diego?

4

THE WITNESS:

Yes, sir.

5

JUDGE WELSCH:

And, San Antonio?

6

THE WITNESS:

Yes, sir.

7

What I was explaining, these notebooks although

8

these are made for Sea World of Florida, that's these

9

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,

(216) 226-8157

582

1

yes.

2

JUDGE WELSCH:

3

BY MS. GUNNIN:

4

Q.

Go ahead, Ms. Gunnin.

Mr. Tompkins, going to -- Mr. Black covered

5

so many areas -- with regard to the incident reports

6

that are there before you marked as Exhibit C-6, do

7

those only include incident reports from shows?

8

A.

No, no.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

583

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 --

5

A.

Okay.

6

Q.

-- to see if this will refresh your memory.

7

(Whereupon, Respondent's Exhibit R-3 was marked

8

for identification and entered into the record)

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.

CARLIN ASSOCIATES

(216) 226-8157

584

1

"Information Memorandum," if you read the description

2

there, is that applying to --

3

MR. BLACK:

Your Honor, I would just object at

4

this point if we're going to offer this exhibit and rule

5

on whether it should be admitted or not.

6

testify and start reading from it.

7

though, I don't think it's appropriate for him to be

8

reading from a document and just reading from it.

9

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

CARLIN ASSOCIATES

(216) 226-8157

585

1

two years ago or something.

2

THE WITNESS:

Correct, and as the VP of animal

3

training, if they were making recommendations to our Sea

4

World of California park about our animals, I would be

5

involved in that process too.

6
7

JUDGE WELSCH:

That's VP of animal training at

Sea World of Orlando?

8

THE WITNESS:

Yes.

9

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 --

CARLIN ASSOCIATES

(216) 226-8157

586

1
2

MS. GUNNIN:

Judge, we can object to relevance

of all the California parks.

3

JUDGE WELSCH:

4

can overrule it.

5

MR. BLACK:

Let him finish the objection so I

The objection is that it has no

6

relevance to anything; but if it does, the relevance

7

would perhaps -- I'm struggling to find what the

8

relevance would be.

9

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.

Thank you, Your Honor.

Okay, Mr. Tompkins, if you would turn to the

CARLIN ASSOCIATES

(216) 226-8157

587

1

second page of the information memorandum.

2

A.

3

JUDGE WELSCH:

4

MS. GUNNIN:

5

BY MS. GUNNIN:

6

Q.

7

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?

8

A.

Yes, ma'am, I have.

9

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

CARLIN ASSOCIATES

(216) 226-8157

588

1

recommendations.

2

MS. GUNNIN:

3

BY MS. GUNNIN:

4

Q.

Yes, Your Honor.

So, these suggestions, to use the correct

5

verbiage, were made by Cal-OSHA, and looking at these,

6

did Sea World of Florida implement any of these

7

suggestions?

8

A.

Yes, we did and then some.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

589

1

Number 2, we didn't.

The presence of Number 3 --

2

Q.

Are you on number --

3

A.

Let me go to the ones -- I'm trying to go to

4

the ones that I knew we implemented.

5

Q.

So, Number 1, you did?

6

A.

Number 1, we did.

Number 5, and I could

7

spend a little bit more time talking about not only that

8

equipment but other equipment as well.

9

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

CARLIN ASSOCIATES

(216) 226-8157

590

1

the majority of their performance tasks.

2

why was that not implemented?

3

A.

4

killer whales.

5

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

CARLIN ASSOCIATES

(216) 226-8157

591

1

whales, when you have a large group of killer whales, we

2

like having the variability of ages and sexes because it

3

creates a balance within that social group, and we felt

4

like after that evaluation, we had that in all of our

5

parks, including Sea World of Florida.

6

Q.

The next suggestion was the presence of

7

calves within the population could be a stressor both to

8

the mother and to the other whales in the population.

9

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

CARLIN ASSOCIATES

So, training animals

(216) 226-8157

592

1

animals.

2

Q.

3
4

And, there was one about Number 4, animals

not -MR. BLACK:

Just for the record, all of this

5

discussion of what was done in the Cal-OSHA inspection,

6

as Your Honor will recall, we have had conference calls

7

and discussions about this prior to trial about the

8

relevance of what was found or not found by another

9

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

CARLIN ASSOCIATES

(216) 226-8157

593

1

describe what is meant by that?

2

A.

We knew that we need -- we wanted to wear

3

air, and it had to be portable, it had to be small

4

enough to be worn either inside of their wet suit

5

outside with low profile.

6

At the time, there was no off-the-shelf to do

7

that.

Most small breathing tanks are still very big.

8

So, we worked with a company, and they went through a

9

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

CARLIN ASSOCIATES

(216) 226-8157

594

1

received 145 psi and you had to learn how to take in a

2

limited amount of air.

3

When we tested the equipment, it was

4

inconsistent, it leaked, and then when we were training

5

the trainers on it, we recognized the difficulty of

6

trying to train trainers to breath on this device.

7

with those challenges, we decided this was not a

8

feasible piece of equipment at that particular time.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

595

1

Q.

Turning to a different topic, Tilikum.

2

Housed at Sea World of Florida since you've been at Sea

3

World of Florida, correct?

4

A.

Yes, ma'am.

5

Q.

Were you there when Tilikum was brought to

6

Sea World of Florida?

7

A.

Yes, ma'am, I was.

8

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.

CARLIN ASSOCIATES

(216) 226-8157

596

1

We obviously knew his history coming from Sea

2

Land Park, and we recognized that potential.

3

we made the decision not to get into the water with him,

4

and that's why we made sure that only experienced people

5

worked with him.

6

That's why

We were very careful not to do water work in

7

the pool next to him.

Any time he was in the pool we

8

had a gate latch system where basically you could not

9

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.

CARLIN ASSOCIATES

(216) 226-8157

You know,

597

1

whenever making decisions by ourselves, we have spotters

2

and we have experienced people around us, so when we're

3

working an animal, if I'm missing something, somebody

4

else could be there to help me see those things around

5

me, the distance by which we worked them.

6

them dry, we were careful about where we were in

7

relationship to the depth, the type of footwear that we

8

wore, making sure that the decks were all slip

9

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?

CARLIN ASSOCIATES

(216) 226-8157

598

1

A.

Yes, we have.

2

Q.

And, what kind of close contact have you had?

3

A.

We've done all the same sort of interaction

4

drive that we have with our water work animals.

5

would rub him down, we would scratch his back, we would

6

rub his head, we would do husbandry behaviors where we

7

were working around his head.

8

everything you would do on dry land with him as we would

9

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

CARLIN ASSOCIATES

(216) 226-8157

599

1

especially his size, he was just exceptionally good.

2

was very calm, very gentle, he responded very well to

3

all of our interactions, he did all his husbandry

4

behaviors very willfully, never showing any problems or

5

reluctance to do those behaviors.

6

on-track positive animal all the times he interacted

7

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

CARLIN ASSOCIATES

(216) 226-8157

600

1

water, and with that speculation, we wanted to provide

2

more predictability of what might happen if somebody was

3

to get in the water, so this de-sense training was our

4

initial basic step to try to get to that point where we

5

could get him used to people being in deeper and deeper

6

water within a lift floor situation.

7
8

Q.

And, did you observe those water de-sense

sessions?

9

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 --

CARLIN ASSOCIATES

(216) 226-8157

The

601

1

THE WITNESS:

Yes, sir.

2

JUDGE WELSCH:

-- with Ms. Brancheau, I'm

3

assuming -- and you have seen the video, I'm sure, of

4

the incident -- nothing she did was contrary to

5

instructions by the company?

6

THE WITNESS:

No, sir.

7

JUDGE WELSCH:

Everything she did she was doing

8

in accordance with what the procedures were or practices

9

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?

CARLIN ASSOCIATES

What was she doing?

(216) 226-8157

602

1

THE WITNESS:

It wasn't a behavior she was

2

performing more than she was in a depth that was about

3

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.

8

JUDGE WELSCH:

How deep is that?

9

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

CARLIN ASSOCIATES

(216) 226-8157

603

1

actually got down.

2

was a different kind of behavior that she was trying to

3

deal with or a different kind of activity that she was

4

trying to elicit from Tilikum because what I was seeing

5

anyway was her head was very close to Tilikum's mouth.

6

Right.

It's not unusual for the

7

head to be close to his head.

To answer your question,

8

Your Honor, when she was doing the performance in that

9

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.

CARLIN ASSOCIATES

(216) 226-8157

604

1

BY MS. GUNNIN:

2

Q.

Just to follow up on the Judge's question,

3

would that have been any kind of unusual occurrence with

4

Tilikum for her to have engaged in that kind of session?

5

A.

No, it's not.

6

MS. GUNNIN:

Judge, I have more questioning,

7

but we've been going for awhile and I thought we could

8

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

Mr. Tompkins, I'll remind you you're still under

15

Let's go back on the record.

oath.

16

Ms. Gunnin, your witness.

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?

CARLIN ASSOCIATES

(216) 226-8157

605

1

A.

Absolutely not.

2

Q.

Why is that?

3

A.

Well, we have strict protocol to who gets to

4

work with a killer whale and when.

5

if you're the most experienced trainer who comes from

6

another park, you're not familiar with that whale, you

7

don't have a relationship with that whale.

8

unfair to put you in front of that whale without you

9

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.

CARLIN ASSOCIATES

(216) 226-8157

606

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

4

you're not familiar with that whale, whether you come

5

from Sea World Texas, Sea World of California, even from

6

another park, if you're there, you need to go through

7

all the processes and procedures as starting to know and

8

get to work with that animal with an experienced person.

9

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

CARLIN ASSOCIATES

(216) 226-8157

607

1

person.

2

a relationship with those whales.

3

familiar with each whale in each situation.

4

would have to go through the same type of training if I

5

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.

I

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

CARLIN ASSOCIATES

(216) 226-8157

608

1
2

environment.
We recognize that unusual things can occur in

3

the environment that may be out of our control; a duck

4

flying in the water or a stranger come and jump in the

5

water, a plethora of things that can be a distraction to

6

the whale, and we know that could happen.

7

We train accordingly.

During our water

8

de-sense program, which this isn't just a program that

9

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

CARLIN ASSOCIATES

(216) 226-8157

609

1

can happen.

2

an emergency medical plan or ERP where basically we have

3

all the protocols on how to rescue a person.

4

equipment, we have processes, we have all those tools

5

and devices and SOP's to make sure that we know how to

6

react if we need to go rescue somebody.

7

We also -- the worst case scenario, we have

We have

So, we take into consideration even those

8

worst case scenarios.

We plan, we train for it.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

610

1

A.

The net is one of the tools that we can use

2

in the emergency rescue program.

3

net is a distraction.

4

water with our animals.

5

use all the time; it's very rare.

6

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

7

them is if there's a medical procedure, if the whale is

8

sick, and we need to support them and move them to a

9

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

CARLIN ASSOCIATES

(216) 226-8157

611

1

why the net was in the water.

2

the trainer, how he started to relax the animal.

3

Then, we again watched

I didn't look at it as, "Wow, look at all the

4

things that went wrong," I mean, we all can see that.

5

looked at what went right, where did our training

6

actually help us.

7

thing, you will recognize that the training we gave that

8

individual paid off.

9

knew what to do, he didn't panic, he calmed that animal

10

I

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?

CARLIN ASSOCIATES

(216) 226-8157

612

1

A.

We practice it all the time.

Pulling that

2

net is -- although it's rare for an animal, it's very

3

frequent for a human being.

4

pools in all situations and we time ourselves.

5

course, that piece of equipment is only one of many

6

pieces of equipment that we have.

7

around there, we have hooks and ropes and other support

8

equipment that we have around that need to be brought to

9

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.

CARLIN ASSOCIATES

(216) 226-8157

613

1

By the way, the tone and the slap mean the same thing.

2

It means stop what you're doing and come back.

3

an underwater sound, and the slap is an above-water

4

sound.

5

One is

When we look at that, the animal didn't

6

respond to it the first three or four times, but I'm

7

looking at time frame of 10 to 20 seconds, and after 20

8

seconds, the whale responded to the slap.

9

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.

CARLIN ASSOCIATES

From what you're

(216) 226-8157

614

1

saying, in the Rokeach incident, he was grabbed by the

2

foot and pulled under similar to what we saw in the

3

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,

7

but from what I understood Ms. Clark to say is that

8

sometimes you want to use the hand slap or the tones,

9

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

CARLIN ASSOCIATES

(216) 226-8157

615

1
2

that same distinction.
THE WITNESS:

Well, we're talking about a

3

different conceptual situation, and let me try to put it

4

into terms.

5

environment, her emotional state and what she was doing,

6

the trainer felt like they could give the slap.

7

Although she didn't respond to the first three or four,

8

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.

CARLIN ASSOCIATES

So, it's up to

It depends on

(216) 226-8157

616

1

So, in that particular situation we're talking

2

about, the trainer looked at that and said, "I feel

3

comfortable that this hand slap is not going to

4

interfere with what's going on.

5

to redirect the animal to me.

6

come back the first three or four times, if you look at

7

the time frame of 10 to 20 seconds, that's not a long

8

period of time.

9

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?

CARLIN ASSOCIATES

(216) 226-8157

617

1

A.

Well, when we were describing the incident,

2

there are certain behaviors that are a part of the

3

criteria that is in an incident.

4

And, when you use your mouth, we consider

5

that an incident.

6

around a body part, mouthing does not mean they grab

7

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

CARLIN ASSOCIATES

(216) 226-8157

618

1

are exploring their environment, and we know that.

2

you don't ignore it either.

3

document it to make sure that, "Joe-Blow whale right

4

here, if they mouth me, by the way, trainers that now

5

get in the water with him, be very aware that he may be

6

or she may be in an exploratory stage.

7

you watch carefully and if you see the mouth start to

8

open to explore, let's redirect."

9

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

CARLIN ASSOCIATES

(216) 226-8157

619

1

both of those documents.

2

working that whale, everything that occurred with Kayla

3

during her life, including the ones that were written on

4

the profile sheets.

5

So, they knew when they were

So, although it might have been missed in the

6

incident log over here, they got to see it over here,

7

and more than likely, those experienced trainers were

8

able to walk him through that.

9

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.

CARLIN ASSOCIATES

(216) 226-8157

So,

620

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

4

animal records and brought with her to Sea World of

5

Florida.

6

Q.

And, there's more than just the animal

7

profile and incident reports that would be in her

8

records, correct?

9

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.

CARLIN ASSOCIATES

(216) 226-8157

621

1

All of those data points are collected on there, and as

2

a trainer, if I was to come in from my day off or even

3

if I came in the next day and I wanted to work an

4

animal, I don't just grab a bucket and go, "I'm going to

5

work with Katine."

6

Because your job in the morning is go look at

7

the records.

It's your living bible, it's what you read

8

every single day, it's what you use as a way of

9

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

CARLIN ASSOCIATES

(216) 226-8157

622

1

I haven't done any husbandry sessions or you know what,

2

I haven't really played with this animal for a long,

3

long time.

4

So, it gives the animal training staff the

5

ability of being able to balance an animal's life which

6

we know is very important in creating a healthy life for

7

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?

CARLIN ASSOCIATES

(216) 226-8157

What other

623

1

A.

We'll put down any types of incidents that we

2

have, so it's not only the behavioral record of what

3

they have done right.

4

on that form too.

If they do have an incident, it's

5

So, when you really look at the

6

documentation, there are multiple places that we put

7

what the animals do, and if the trainers have access to

8

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

CARLIN ASSOCIATES

(216) 226-8157

624

1

basis.

2

Q.

And that would be for each animal?

3

A.

Absolutely.

4

Q.

So, there's a lot of redundancies of

5

information that you're collecting on an animal?

6

A.

Yes, ma'am.

7

Q.

When you have mentioned the number 1.6

8

million interactions, how are you estimating that

9

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

CARLIN ASSOCIATES

(216) 226-8157

625

1
2

gave.
Right at the very beginning when you started your

3

examination about the percent probability, he started

4

talking about 1.6 million interactions.

5

what the rule is, and I'm going to treat it as an

6

estimate.

7

going to give it much weight but just as something he

8

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

CARLIN ASSOCIATES

(216) 226-8157

626

1

session?

2

A.

Ten sessions -- any time we step up and

3

interact with a whale, that's considered a session.

4

you step up and separate an animal to the back pool,

5

that could be a session.

6

20-minute show with an animal, that's a session.

7

do one of the learning sessions or husbandry sessions or

8

exercise sessions or play sessions, all of those are

9

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