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

by David Kirby

  As lawyers, spectators, and OSHA expert witness Dave Duffus filed into the courtroom, Naomi reflected on what had brought everyone here today: a whale named Tilikum and his fateful encounter with a trainer named Dawn. Dawn’s husband, Scott, walked in, the toll of personal pain carved deeply on his face. His world had been shattered.

  Now, lawyers would battle over SeaWorld’s culpability in what was perhaps the most notorious killing by a captive animal in human history.

  Would there be justice in the Brancheau case? Naomi was not one to predict the outcome of a trial. But, she wondered, what about justice for Tilikum? What was the verdict for him?

  Colleen Gorman had been sending e-mails to the orca group lately about animal advocates in Canada and Iceland who were actively pursuing a plan to get Tilikum out of Florida. According to Colleen’s sources, the prime minister of Iceland had taken a personal interest in restoring the whale to his native waters. Some $50,000 had reportedly been secured to build an enclosure for Tilikum.

  Naomi was skeptical. Talk of releasing Tilikum, especially at this late date, seemed far-fetched. Even if Iceland did want him back, he was still the property of SeaWorld.

  She didn’t think the PETA case had much chance, either. The likelihood of Tilikum’s returning to Iceland seemed as remote as the fjord from which he was taken.

  But what if the capture of the young calf had never occurred? Tilikum might still be swimming free in the frigid waters of the North Atlantic, chasing his cherished herring, perhaps alongside his mother. He might be surrounded by siblings, nieces, and nephews, and his grandmother might still be leading the pod.

  An oceanic Tilikum would be gliding through his boundless home with fearless power and majestic grace, his fin erect, his teeth intact, his interactions with humans minimal and nonlethal. There would be no need for gelatin or Tagamet, antibiotics or isolation.

  And of course, if Tilikum had never been wrenched away from his family and friends, entirely for the amusement of humans, the family and friends of Keltie Byrne, Daniel Dukes, and Dawn Brancheau might not be grieving to this day.

  Tilikum was trying to tell us something. It was time to listen.

  Epilogue

  As federal administrative law hearings go, Secretary of Labor v. SeaWorld of Florida, LLC, turned out to be a fairly engrossing tribunal. The mahogany-paneled courtroom was full, but not packed, as Judge Kenneth S. Welsch called the proceedings to order. Welsch, a sixty-something man with a soft, slightly gravelly voice, maintained a respectful and pleasant demeanor that could best be described as avuncular.

  The conventions of an OSHA hearing are curious: Often, when Judge Welsch directed a procedural question to one of the government attorneys, he would refer to “the secretary,” as if US labor secretary Hilda Solis were physically present in the room. However unintentionally, the formality served as a not-so-subtle reminder that SeaWorld was not just taking on some faceless agency lost amid the federal bureaucracy—it was challenging a member of Barack Obama’s cabinet.

  Secretary Solis’s lead counsel was John Black, a seasoned litigator from the Labor Department’s Atlanta office. Intense and combative, but adept at laying on charm at strategic moments to great effect, the tall, reedy lawyer with dark hair proved to be a nimble adversary. Black was assisted by a younger partner, Tremelle Howard-Fishburne, whose more reserved demeanor and generally softer lines of questioning complemented the fiery Black. Also sitting on the secretary’s side were Lara Padgett and OSHA’s expert witness, Dr. David Duffus.

  SeaWorld’s counsel, Carla Gunnin, was once a Labor Department attorney herself and appeared sociable with John Black—they knew each other from earlier days spent on the same side of the fence. Tall and attractive, with a gentle southern accent, Gunnin could also switch gears in court, from aggressive to magnetic, depending on her strategy that day. Usually her long blond hair was pulled back tightly, but some days she let it tumble lightly over her shoulders, softening her appearance remarkably. Also at the SeaWorld table were Kelly Flaherty Clark, curator of animal training at Orlando, and the company’s chosen expert witness, Jeff Andrews, associate curator of mammals for the San Diego Zoo.

  Dawn’s family had counsel representing them at the trial as well, one or two attorneys whose sole purpose was to intervene against the showing of any video or still images from the attack and death scene, should the government try to enter them into evidence.

  Everyone was in court to argue two basic questions: Was OSHA justified in issuing a willful violation; and were the proposed abatements feasible? Could they be employed without harming SeaWorld’s ability to conduct business? SeaWorld would contend that the citation was unjustified, and the abatements—especially the end of physical contact with orcas without some sort of barrier—unfeasible in the extreme. What follows is a summary of highlights from the trial, which was scheduled to last five days, from the nineteenth to the twenty-third of September:1

  Day 1: Monday, September 19, 2011. “Let me just say this,” Judge Welsch began. “There is no issue before me regarding whether or not the whales should be held in captivity. Also, there is no issue before me as to whether or not SeaWorld was responsible for the death. The issues before me solely involve the OSHA citations that were issued.”

  Black launched into his opening statement: “Killer whales are large, powerful, and non-domesticated animals. They have the potential to cause serious physical harm or death to people who get near them. SeaWorld’s killer-whale training program doesn’t change the essential facts that harm or death to people is possible. Their program doesn’t eliminate what SeaWorld itself recognizes as a calculated risk.” Despite such a risk, SeaWorld was still allowing its trainers “during show performances to work in close and unprotected contact with its killer whales. This type of close, unprotected contact has been made off-limits with only one killer whale, and that’s Tilikum.”

  The evidence was going to demonstrate that “SeaWorld’s primary method for trying to keep trainers safe was to train their trainers, and SeaWorld trains its trainers how to recognize and how to avoid potential risks, and then, in effect, tells them, ‘Be careful.’” But relying “primarily on training the trainers to be careful leaves gaps,” Black said with barely concealed disdain, adding that new employees were obliged to sign a statement confirming that “their own skills are key to being safe.” New hires were being obliged to sign what essentially amounted to a company liability waiver, in which they acknowledged the “inherent risk” of working with captive orcas. It was a wholly inadequate line of defense, Black charged.

  “Training the trainer is not sufficient for providing protection against that risk.” First, the trainer might not even see the precursor “and thus miss the opportunity to avoid the dangerous behavior,” Black contended. Or the trainer might notice the precursor, but make a wrong decision and react in an incorrect and ineffective manner. Perhaps most critically of all—and most pertinent to the case at hand—a whale such as Tilikum might act out aggressively without “any previously identified precursor” at all.

  But attorney Carla Gunnin countered that Dawn’s death had been an isolated tragedy and certainly not the result of willful indifference. She argued that Tilikum had never shown any proclivity toward trying to pull people into the water. She said that SeaWorld had “lots of safety protocols and procedures in place. Training a killer whale trainer is a lengthy process, a lot of on-the-job training. You don’t start day one at Shamu Stadium and go train a killer whale the next day [and] all of those protocols ultimately equate to the safety of the trainers.”

  Gunnin claimed that an across-the-board ban on water work with all orcas at SeaWorld would impede proper medical care and other husbandry procedures with the animals. “The burden is on the secretary to prove a feasible means of abatement.” OSHA’s abatement was to no longer have close contact with orcas, but “because of the nature of caring for the killer whales, it would be impossible to not have close contact with the killer w
hales. So, that actually does open up the case to a bigger consideration.”

  Much of the day was spent arguing over the way trainers were trained, especially in terms of recognizing “precursors” to aggression. A tense-looking Kelly Flaherty Clark, subjected to more than four hours of intensive questioning, supported Gunnin’s claim by stating that Tilikum had “never given us any indication that he would pull somebody into the water with him.”

  But, Black countered, sometimes there were no precursors at all, and even where they had been present, the trainers were still at risk. “Harm could happen even if the trainer doesn’t make a behavioral judgment error, right?” he asked Flaherty Clark. She answered yes. It was a substantial victory for Black, Naomi thought: He had just forced the witness to admit that, sometimes, all the training in the world didn’t matter; unlike machines, the orcas had minds of their own. Naomi thought the only “feasible means of abatement” was to require only protected contact with the orcas, which, among other things, meant no water work.

  Flaherty Clark tried to gain the upper hand by insisting that all trainers at Shamu Stadium had to complete eighteen to twenty-four months of intensive training before being granted proximity (within five feet) to any killer whale. Yes, the risks were “inherent,” but errors were extremely rare. “The frequency of a trainer making a bad call or missing a behavioral cue is minimal,” she said. “In twenty-five years, I’ve reviewed one behavioral incident that did not show something that I would have done differently, that there weren’t behavioral cues.” That incident was Tilikum’s attack on Dawn.

  Flaherty Clark did testify, however, that trainers had to be perpetually cognizant of each whale’s mood, the proximity of other orcas, and even such things as weather conditions, which might affect animal behavior. She conceded that, sometimes, trainers failed in that task.

  In a blow to some people who had been publicly defending SeaWorld, supported by some SeaWorld staff, Flaherty Clark flatly rejected any suggestions that Dawn Brancheau was responsible for the incident. “Dawn did not break protocol on the day of the accident,” Flaherty Clark testified, in direct contradiction to what Thad Lacinak and some others were still saying about Dawn’s culpability.

  Another important detail covered on day one was whether the government’s abatements to protect trainers with physical barriers would be applied only during shows, or in all interactions with whales. SeaWorld argued that trainers had to be in the water with the orcas, at some point, to offer them proper care. This “hands-on” approach to the whales was the only way to accurately assess their health. Kelly Flaherty Clark even suggested that Kalina would not have died if trainers had been allowed into the pool. “We would have picked up on it if we’d been in the water with her,” she said, trembling with emotion as she spoke. “I think we might not have lost Kalina if we were able to be as close with her today as we were on February twenty-fourth.”

  John Black noted that SeaWorld, not OSHA, had removed trainers from the water. “It sounds like you want to pin the blame of this whale’s death on SeaWorld’s decision to take their trainers out of the water. Is that what I’m hearing?” he asked.

  “No,” Flaherty Clark replied icily.

  “Who are you blaming it on?”

  “I’m not blaming anybody.… I was answering the question somebody asked me.”

  Naomi looked over at Courtney Vail in frustration. Flaherty Clark was, essentially, blaming Kalina’s death on dry work. It was an utterly illogical argument, Naomi thought. What about all those dozens of whales who’d died young at SeaWorld, even when trainers had all the close contact they wanted? It did nothing to save them.

  As for Kalina, even if trainers had detected illness by swimming with her in the past, this time it might not have saved her. Kalina was eating normally and seemed fine the day before she died. The next afternoon she became sluggish, and early that evening she quickly died. Her septicemia set in rapidly. To even suggest that water work would have prevented Kalina’s death, especially in court, aggravated Naomi to no end. “It’s so irrational, she has absolutely no basis for it except her feelings,” Naomi whispered to the person next to her. “It’s just not a science-based argument.”

  Later, under questioning by the judge, Black clarified that OSHA’s citation applied only to work during shows, even though SeaWorld insisted it was “impossible to draw a line between show behaviors and other behaviors, because so much of the work overlaps,” as Jason Garcia reported in the Orlando Sentinel. “Flaherty Clark noted that trainers will often use performances to continue training whales on specific behaviors that are necessary for certain husbandry procedures, such as obtaining gastric samples.”

  It was a “crucial point,” Garcia reported, because SeaWorld could “better argue that OSHA’s recommendations are untenable if it can show that they would interfere with medical procedures or other husbandry work.”

  During the morning break, Naomi was interviewed by Orlando’s NBC affiliate, WESH-TV. “Dawn Brancheau was put into a position where she could easily be pulled into the water,” she noted. Even though SeaWorld had barred water work with Tilikum, the company had turned a blind eye toward trainers’ lying down in a shallow ledge next to him. “He chose to grab part of her and pull her in, and she couldn’t stop him,” Naomi added.

  That night, Carol Ray appeared on CNN’s AC-360 with Anderson Cooper (SeaWorld declined to send a representative). Carol insisted that Dawn was behaving in a way that many trainers had done with Tilikum over the years. “She was not in a position on that day that she hadn’t been in several times before,” Carol told Cooper. “If it had been brought to her attention that she shouldn’t be doing that, I’m sure she wouldn’t be doing that.”

  “Killer whales are so big in these tanks, which basically they just go around in circles,” Cooper said. “Should they be used in these kinds of shows?”

  Carol responded unequivocally, “One of the most important things we’ve learned from having these animals in captivity is that they’re not suitable to have in captivity.” She added, “I don’t think there’s a safe way to have humans interacting in close proximity with these whales.”

  Day 2: Tuesday, September 20. Much of this second day focused on the actual “takedown” of Dawn by Tilikum. For the past nineteen months SeaWorld had been saying—and the media had reported—that Dawn allowed her long ponytail to drift into the mouth of Tilikum, who simply viewed it as a novel plaything and did not act out of aggression. But Jeff Ventre, John Jett, members of The Orca Project, and others had been insisting that Tilikum had grabbed Dawn by her arm. They said the Connell video showed trainer and whale moving in unison in the water in the final seconds of footage, and that Tilikum already had Dawn’s arm in his mouth.

  Debunking the “ponytail theory” was important to the activists and ex-trainers—though not so to Naomi, who thought that Tilikum had acted deliberately no matter what body part he first grabbed. But many of the others thought the ponytail theory cloaked the purposeful nature of Tilikum’s actions. The main witness who first described the ponytail grab—trainer Jay Topoleski—was not looking at Dawn when she went under, at least according to eyewitness Suzanne Connell.

  Topoleski’s statement to the sheriff’s office was contradicted by another eyewitness at G Pool that day: security guard Fredy Herrera. The retired NYPD officer testified, “From my angle, I saw her left arm go underwater as the whale started descending.” He said Dawn’s arm was outstretched “like she was making a left-hand turn signal.” Gunnin got Herrera to concede, however, he was not 100 percent certain, though it certainly looked that way from his observation.

  The government then played the Connell video, which ended with Dawn on the shallow ledge next to Tilikum. Black asked if Herrera had seen trainers in the same position with Tilikum before. “I believe so,” Herrera said.

  Day 3: Wednesday, September 21. Early that morning, the Today show’s Kerry Sanders delivered a live report from Orlando to cohost Matt
Lauer at NBC studios in New York. Despite SeaWorld’s long insistence that Tilikum had been “attracted to the trainer’s bouncing ponytail,” testimony had now been heard in court that “seriously challenges that claim,” Sanders reported. “The answer to what happened may lie in the videotapes that Dawn’s family and SeaWorld argue should not be played in court.” The tapes “may be the only way to explain if he grabbed Dawn by the ponytail, or her arm.” NBC also interviewed TOP’s Colleen Gorman, in the courthouse foyer. “As you can see now with the evidence and the eyewitness coming forward, he already had her arm in his mouth,” she said of Tilikum, “and he took her down from there.” Sanders, in closing, said that because of “legal issues” SeaWorld would no longer comment “whether he grabbed her ponytail or her arm.”

  Day three saw the presentation of another video, never viewed before in public, of the 2006 attack by Kasatka on Ken Peters in San Diego. Without any audio, the gripping images of a wet-suited man being dragged underwater by his foot were even more surreal.

  But most of the day was spent on testimony from Chuck Tompkins, corporate curator of zoological operations, and SeaWorld’s record keeping of aggressive incidents among its killer whales. John Black alleged that the company had repeatedly failed to document such incidents and questioned the reliability of a corporate log that SeaWorld said included every single aggressive episode that had happened since it began keeping records in 1988. The log report contained around one hundred incidents, including two at Loro Parque. But Black cited several incidents listed in individual Animal Profiles that had never made it into the log, including an orca’s lunging into a trainer. Another whale, Kayla, had five incidents in her profile that failed to appear in the log.