Death at SeaWorld: Shamu and the Dark Side of Killer Whales in Captivity

by David Kirby

  First, trainers were exposed to “struck-by and drowning hazards in that they were allowed unprotected contact with Tilikum while conducting ‘drywork’ performances on pool ledges, slideouts, and platforms.” The agency noted that a willful violation was “one committed with plain indifference to or intentional disregard for employee safety and health.”

  One “feasible and acceptable” means of abatement for this violation, OSHA wrote, “would be to not allow animal trainers to have any contact with Tilikum unless they are protected by a physical barrier.”

  The second reason cited by OSHA concerned the other whales at Shamu Stadium, who placed trainers at risk for “struck-by and drowning hazards” because they were allowed to “engage in other work and dry work performances without adequate protection.”

  Feasible means of abatement on this count would include a ban on water work and dry work with the whales, unless trainers were protected by physical barriers, decking systems, oxygen supply systems, or other forms of control.

  The fine for the violation was $70,000, a pittance to SeaWorld Parks & Entertainment but nonetheless the maximum that OSHA could impose under federal law.

  OSHA also issued a “serious” violation and fine for $5,000 for the lack of a stairway railing on one side of a ten-foot-high bridge at the “Believe” stage in Shamu Stadium. OSHA issues a serious citation when “death or serious physical harm is likely to result from a hazard about which the employer knew or should have known,” the news release said. A third “other-than-serious” violation was issued for failing to equip electrical outlets at Shamu Stadium with weatherproof enclosures.

  Under federal law, SeaWorld had fifteen business days to comply with the citation by paying the fines and enacting the means of abatement. Alternatively, it could request an informal conference with OSHA’s area director or “contest the citations and penalties before the independent Occupational Safety and Health Review Commission.”

  Lara Padgett personally delivered the citation papers to SeaWorld Orlando. By the time she had driven back to Tampa, the company was already proclaiming its innocence—and declaring plans to fight the citations.

  “SeaWorld disagrees with the unfounded allegations made by OSHA today and we have already informed the agency that we will contest this citation,” the company announced.7 “OSHA’s allegations in this citation are unsupported by any evidence or precedent and reflect a fundamental lack of understanding of the safety requirements associated with marine mammal care.”

  This same tactic had been employed by Thad Lacinak and other industry insiders: Accuse the accusers. As for SeaWorld’s contention of no evidence to support the citation, that fight would have to be taken up later, by a federal judge. To the average person, however, a severed arm, a torn-away scalp, and two previous deaths in Tilikum’s pool likely qualified as evidence enough.

  But SeaWorld insisted it was innocent and would be vindicated. The company noted that an independent review conducted by “some of the world’s most respected marine mammal experts” had arrived at conclusions “in stark contrast to OSHA’s.” (In other words, why was the government persecuting SeaWorld when it had already been cleared by its own industry?)

  “The safety of SeaWorld’s killer whale program was already a model for marine zoological facilities around the world,” the statement said. “The changes we are now undertaking in personal safety, facility design and communication will make the display of killer whales at SeaWorld parks safer still.”

  Trainers would remain out of the water until those new safety measures were put in place.

  “SeaWorld trainers are among the most skilled, trained and committed zoological professionals in the world today,” the statement continued. “The fact that there have been so few incidents over more than two million separate interactions with killer whales is evidence not just of SeaWorld’s commitment to safety, but to the success of that training and the skill and professionalism of our staff.

  “We look forward to challenging OSHA’s unfounded allegations,” it concluded, “and are confident that we will prevail.”

  Naomi Rose and HSUS had a decidedly different take on the citations. Naomi was presenting a talk at a zoological conference in China, but before she left, she and the PR department had drafted two press releases—one to address a “bad” outcome at OSHA, and one for a “good” outcome. This was a good outcome.

  HSUS was “guardedly optimistic” about the citation, Naomi’s statement said, adding that if orcas decide to act dangerously, “there is nothing anyone—including SeaWorld—can do about it. Trainers should never be in a vulnerable position around the water,” she said, “and they certainly shouldn’t get in the water for the show.”

  The media ran with the story. SeaWorld’s publicity department was flooded with calls from reporters as company officials braced themselves for yet another bruising storm of controversy. For some, it must have felt like late February all over again.

  * * *

  This was turning out to be the worst year ever for SeaWorld. In early 2010, park officials were still dealing with the fatal attack by Keto on Alexis Martinez when their own employee was killed by Tilikum. That triggered an avalanche of negative media; investigations by the local sheriff’s office and the not-so-friendly OSHA; condemnation by celebrities and animal protection groups; calls for Tilikum’s extermination; a stinging investigative exposé in a popular magazine; heavy media coverage of Taima’s death; and now, a citation for a willful violation and high-profile fines from OSHA that could, if not overturned, herald the end of water work during orca shows.

  But now things were about to get really ugly: The lawyers had arrived. Lawsuits—and threats of lawsuits—quickly began circulating.

  In the wake of Dawn’s death, a number of current and former SeaWorld employees stepped forward—some privately, some quite publicly—to launch a startling array of extremely serious accusations against the company. If even one of the claims was proven true, it would be devastating for SeaWorld. But the mere airing of some of the allegations, whether fair or not, further tarnished the company’s already dented and scratched reputation.

  Early on the morning of August 23, a few hours before the OSHA citation was released to SeaWorld and the media, a matronly woman and her attorney appeared on ABC’s Good Morning America to unleash a firestorm of accusations against SeaWorld and its handling of the OSHA investigation.8

  The whistle-blower’s name was Linda Simons. Just one week before Dawn died, Simons was hired as the health and safety director for SeaWorld Orlando, Discovery Cove, and Aquatica park, responsible for safety, health services, risk management, and related issues. Two months after the disaster, she was abruptly terminated by the company.

  Linda Simons, backed by more than twenty years in the safety and security business, was now “speaking out on what she calls questionable or even dangerous safety practices at the Florida park that could result in another tragedy,” ABC News reported. Simons, accompanied by her attorney, Maurice Arcadier, told Good Morning America that she was speaking out so that the safety of “the team members that remain is not jeopardized. If they’re put into that close proximity, it could easily happen again.”

  According to Simons, everyone at SeaWorld was fully aware of the damage that Tilikum could do: “They talk to you about going into the water with Tilly. That if you go into the water with Tilly, you would come out as a corpse.”

  Many of Simons’s allegations were described on the website of her attorney’s law firm, Arcadier and Associates in Melbourne, Florida. “From the very beginning of OSHA’s investigation, the SeaWorld executives involved were not cooperating,” Maurice Arcadier wrote. Company brass, he alleged, “wanted to block them [OSHA] from coming onsite” and “obstructed the disclosure of relevant documents, videos, and/or information that was damaging to SeaWorld.”

  According to Arcadier, Simons tried to explain to her superiors that “OSHA’s goal is to investigate the incident so th
at no other team members will be killed,” and that cooperating with an OSHA investigation was mandated by law. “However as the investigation continued Mrs. Simons began to doubt that safety was SeaWorld’s first priority. When OSHA requested specific trainers to be interviewed, SeaWorld changed them to different trainers for fear that the requested trainers may provide damaging information to OSHA; if necessary, schedules would be altered, claiming they were on vacation, or unavailable for other reasons. Mrs. Simons opposed this unscrupulous practice.”

  Arcadier added, “SeaWorld instructed Mrs. Simons to change and withhold documents from OSHA, which she refused to do.”

  When she was fired on April 20 for what she claimed was “attempting to cooperate with the OSHA investigation,” Simons was told that she wasn’t “a good fit” for the corporation. But she had never received any negative feedback “verbal or written,” she said in the statement. In fact, she claimed to have received “repeated praise” from many executives at the park.

  Simons filed a whistle-blower protection claim with OSHA and was also pursuing a wrongful-termination claim against SeaWorld, and “other claims available under law,” Arcadier said. “SeaWorld aggressively threatened to pursue legal action against Mrs. Simons if she went public with her information. Mrs. Simons would not be bullyied [sic] and has been brave to bring forward the reprehensible conduct of SeaWorld.”

  Then Arcadier turned up the heat: “SeaWorld goes through great lengths to keep the public and media blinded. They use threats of lawsuits and their big time lawyers to keep the truth out.” SeaWorld required that all employment disputes “be privately arbitrated in a confidential manner.” Therefore, there was “so little information of all of SeaWorld’s improprieties.”

  Linda Simons, in a signed affidavit that Arcadier faxed to SeaWorld’s law firm, offered a day-by-day account of her recollections of what happened within the executive offices in Orlando between February 24 and April 20, 2010—the day of her firing. A copy was sent to Lara Padgett at OSHA’s Tampa office.

  Linda listed the many documents that Padgett had requested via e-mail on March 2, including any investigation report prepared by or for SeaWorld or the Blackstone Group; all witness statements; video recordings and still images; training records for Dawn, Jan Topoleski, and Lynne Schaber; all internal accident investigation reports regarding orcas in Orlando; and all “documents, permits and animal records for Tilikum,” such as “historical records received when purchased from SeaLand of the Pacific.”

  A week later, OSHA issued a second round of requested documents, according to Simons. This time, Lara Padgett wanted such items as technical information and blueprint drawings for Shamu Stadium; all Behavior Review Committee safety reviews for all SeaWorld killer whales; the past five performance reviews for Dawn, Jan, and Lynne; all “Animal Profiles and Aggression Incident Report Notebooks” on orcas in Orlando; and a copy of the company video used for training purposes “compiled from previous incidents involving killer whales.”

  Padgett was thorough, if anything. She was not a popular figure around the park.

  SeaWorld officials were indignant at the scope of the requests, Simons indicated. On March 16, for example, two executives in particular “were very vocal on not providing the documents and videos concerning any of the killer whales. They repeatedly said that the documents and videos would be released to the media/public.”

  Tilikum’s documents were a particular concern, Simons recalled. On March 31, park curator Bill Hughes pointed out that the whale’s vet records showed he was “on injections and was worried this would be viewed as a concern.” Other executives urged that Tilikum’s “meds list” be withheld from the feds.

  Kelly Flaherty Clark, meanwhile, was worried because, a bit more than three years earlier, Dawn had been “written up for a safety violation (diving into one of the pools without the gates being shut and locked),” Simons wrote. That information would be withheld, she alleged, because it was more than three years old and attorney Carla Gunnin said SeaWorld would only turn over trainer records covering the prior three years.

  The resistance to produce requested documents continued: “OSHA was told that they would have to subpoena Carla for any documents that they were not given [or] allowed to review.”

  When Simons went public, SeaWorld officials wasted no time fighting back; and they did so with full force. The company excoriated its former safety officer in a harsh statement brimming with denunciations:

  The safety of our staff, guests, and animals is SeaWorld’s highest priority. And we have cooperated fully in OSHA’s inspection of the February 24th accident. We’re not at all surprised to hear that Ms. Simons has reached out to the media with these unfounded charges. Since her termination several months ago, her representatives have used the threat of negative publicity to seek a sizable monetary payment from SeaWorld in exchange for her not going public with these false allegations. Linda Simons worked for SeaWorld for only a few weeks and was fired not for the reasons she cites, but rather for poor performance during the OSHA inspection of Dawn Brancheau’s death. During those critical weeks, Ms. Simons repeatedly demonstrated an inability to conduct herself to the acceptable standards of competence, transparency, integrity or professionalism demanded of an inspection of this magnitude. Any claim to the contrary is simply false.

  Privately, Mark A. Hanley, an attorney representing SeaWorld, had already written to Maurice Arcadier telling him to back off. He said that an investigation of Simons’s allegations found they were “without merit and apparently have been raised solely to deflect criticism of her own inadequate job performance.”

  Linda Simons had vehemently objected to working with outside counsel, Carla Gunnin, Hanley wrote, and her “subsequent job performance reflected her unreasonable resentment.” Simons had not been “privy to all the information that was provided to OSHA” because she had been “essentially cut out of the loop.”

  Hanley said, “It is SeaWorld’s very strong position that neither the law nor the facts support any claim under OSHA” or Florida whistle-blower laws. SeaWorld had offered Arcadier’s client a “generous severance package” and a neutral job reference, which she rejected and instead sought $300,000 in damages—a demand that SeaWorld had now “categorically rejected. Should Ms. Simons, nonetheless, choose to pursue legal action, we have been instructed to vigorously defend all claims and seek all appropriate relief upon behalf of SeaWorld.”

  Simons chose to pursue legal action.

  On the evening of August 23, Simons and Arcadier appeared on Larry King Live in a segment that included yet another on-air dustup between Ric O’Barry and Thad Lacinak, who attacked Linda Simons as well.9

  “I find it funny that we have someone that works for SeaWorld for—what did you say, a couple weeks or a week before the incident?—and then she gets fired. And then she’s all of a sudden a credible witness on TV,” Thad said. “I worked for SeaWorld for thirty-five years. I never saw any of the accusations that she said. SeaWorld cares about their animals. They aren’t going to do things to hurt their trainers. This thing from OSHA is wrong. They should never have put this statement out, recommending that they do not do anything with the killer whales.”

  Larry King asked Simons for her response.

  “I am a safety professional with over twenty years’ experience,” she said with full composure. “And my claim is that they were not cooperating with OSHA’s investigation. I am not claiming anything to do with how the whales were treated. He was a dangerous whale. And Thad knew about the Tilly talk. That is not my claim, though.… They blocked documents that were requested from a federal agency because they had damaging information in them. And because I wanted to cooperate, they terminated me.”

  “Maurice, is Linda planning a lawsuit?” King asked of Arcadier.

  “Right now we filed an OSHA retaliation complaint,” the lawyer said.

  “But no lawsuit? Will there be a lawsuit?”

  “We’ll see.
SeaWorld prevents employees from filing lawsuits because they have an arbitration clause,” Arcadier said. “We have to go through arbitration. And they have all these kinds of confidentialities to keep the media out.”

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  Superpod

  Samantha Berg, the sharp-witted New Yorker who worked at SeaWorld with Jeff, John, and Carol Ray, was the last of the ex-trainers to join the Orca Aware group. Carol and Sam had kept in contact, visiting each other in Seattle or Anchorage, where Sam had moved in 1994 and married her boyfriend, Kevin Meddleton. In 2003 Sam got her master’s in acupuncture from Tai Sophia Institute in Maryland and returned to Palmer, Alaska, to open an acupuncture clinic with Kevin.

  After Tim Zimmermann’s article “The Killer in the Pool” was published, Sam wrote to Carol to ask if she had read it. Many of the things he mentioned in Outside magazine surprised her. Sam had left SeaWorld with a mostly positive opinion of the place.

  Carol, who had been in contact with Jeff since Dawn died, knew about the article before it was published. She also told Sam about the Orca Aware group and how they had assisted Tim in his research. The group had been growing, Carol said. Members now included Howie’s wife, Susan Berta, the other half of the Orca Network, and Astrid van Ginneken, the Dutch doctor who still flew to Washington every summer to help with Ken Balcomb’s orca census. Yet another member, Wendy Cooke, was a blogger from Northern California who tracked the genealogy of captive orcas and ran a website, Without Me There Is No You, to raise awareness about whales. Its name came from the idea that “Without the patrons of the marine parks, there would be no show,” the site explained.

  The former trainers realized they were in a unique position to influence the captivity debate and the OSHA legal battle that was already taking shape. One “feasible” abatement OSHA had listed was an “oxygen supply system,” better known as “spare air.” A modified scuba system, it allowed trainers to carry compact amounts of air somewhere on their person as they worked in the water. Jeff learned that SeaWorld was vigorously exploring spare-air technologies as part of the safety review it had launched after Dawn died.