About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Wednesday, June 6, 2012

The SeaWorld OSHA Decision And The Dangers Of Captive Animals: A Reasoned Response To Media Distortion


Last week, Administrative Law Judge Ken S. Welch in Orlando issued the long awaited opinion in Secretary of Labor v. SeaWorld of Florida, LLC, more commonly known as the Dawn Brancheau case.  As most of you probably know, on February 24, 2010, Dawn Brancheau, a seasoned and respected trainer at SeaWorld, was killed by a killer whale that dragged her into the water, fatally injuring her.  Following Ms. Brancheau’s tragic death, OSHA investigated and assessed a $75,000 fine and issued two citations.  OSHA also ordered that SeaWorld abate the hazard by not allowing trainers to have contact with killer whales during shows unless they are protected by a physical barrier or a minimum safe distance of dry land.  SeaWorld appealed the violations to the OSHA Review Commission, which largely, but not totally, affirmed the OSHA investigator’s findings. 

Now I’m not going to try to pick apart Judge Welch’s decision – I don’t know the evidence, I wasn’t there for the testimony, and I don’t have significant experience with OSHA regulations and law.  The decision is quite long and very detailed and, absent greater familiarity with the underlying facts and arguments, I would not purport to challenge Judge Welch’s factual and legal determinations intelligently.  However, what does warrant comment is the treatment the decision has received in the days following its issuance and, in particular, a recent piece I read in the Huffington Post authored by David Kirby entitled “Labor Department Fires Warning Shot At Animal Entertainment Industry.”  Mr. Kirby’s piece omits key facts of the case, wrongly implies that Judge Welch found SeaWorld to be irresponsible and unconcerned with employee safety, and relies on inaccurate and misleading “statistics” and information sources to unfairly depict the frequency and severity of incidents involving animals held in captivity.


So what specifically am I talking about here?  Let’s start with this statement, which appears near the top of Mr. Kirby’s piece:  “...the Labor Department's Occupational Safety and Health Administration (OSHA) slapped SeaWorld with a damning ‘willful’ violation and demanded a raft of intensive new measures to protect the life and limb of employees.”  In and of itself, that’s true – OSHA initially cited SeaWorld for a “willful violation” of OSHA regulations – essentially finding that SeaWorld violated OSHA regulations “with intentional, knowing or voluntary disregard for the requirements of [OSHA law], or with plain indifference to employee safety.”  Such a violation contemplates “an employer’s heightened awareness of the illegality of the conduct or conditions and by a state of mind, i.e. conscious disregard or plain indifference for the safety and health of employees.”   But what Mr. Kirby fails to mention anywhere in his article is that Judge Welch specifically reversed that portion of OSHA’s initial findings.  In reality, Judge Welch found that

The Secretary failed to establish SeaWorld disregarded the requirements of the Act.  OSHA has no specific standard that regulates employees working in close contact with killer whales.  The original SeaWorld in San Diego predates the Act.  No evidence was adduced that shows SeaWorld had a heightened awareness of the illegality of its conduct.

and

The Secretary has also failed to establish SeaWorld manifested plain indifference to employee safety.  On the contrary, the record demonstrates SeaWorld constantly emphasized safety training and was continuously refining its safety program.

This is an important part of Judge Welch’s recent decision and one Mr. Kirby has totally ignored.  Indeed, his piece reasonably implies that the Judge agreed with OSHA’s initial determination.  Mr. Kirby quotes an OSHA official who stated that “The decision should send a strong message to SeaWorld that the health and safety of its workers must always be a top priority” and that “workers who interact with large and unpredictable animals deserve no less protection than anyone else.”  Such dramatic rhetoric certainly implies that Judge Welch, in fact, found that SeaWorld had not made its employees’ safety a “top priority.”  But that’s just not what he said, this is:

SeaWorld requires its trainers to participate in an intensive multi-year program under close supervision before they are allowed close contact with the killer whales.  SeaWorld requires its trainers to maintain peak physical condition.  It administers physical fitness tests four times a year.  SeaWorld installed underwater video cameras in every back area to monitor the killer whales’ activity.  The company has implemented emergency response protocols (ERPs).  SeaWorld’s trainers practice the ERPs during monthly drills.  SeaWorld’s safety training is highly detailed and thorough.  It is a safety-conscious employer.

While there can be no doubt after reading the decision that Judge Welch believed that SeaWorld’s safety procedures for interaction with killer whales were inadequate and that some of SeaWorld’s arguments at trial were not credible, there is nothing in the decision that even remotely indicates that SeaWorld did not make safety a top priority. 

I also take issue with Mr. Kirby’s use of blind statistics and highly questionable “sources” to support his argument that captive animal attacks on humans are a widespread and serious problem in the entertainment industry.  First, Mr. Kirby states that “At least 15% of the killer whales owned by SeaWorld have been involved in serious aggression against their trainers over the years, a dismal safety record that would never be tolerated in other industries.”  That’s a pretty serious sounding statistic, but where does it come from?  Mr. Kirby doesn’t say.  Its certainly not in Judge Welch’s recent opinion.  Moreover, what is “serious aggression?”  Is that equivalent to an attack?  Or merely displaying aggressive behavior that trainers may have appropriately recognized that injured no one?  What is the sample size we are talking about?  How many whales does SeaWorld own?  Why is this limited only to SeaWorld?  Wouldn’t a more appropriate statistic measure the injuries or deaths caused by killer whales in captivity worldwide?  I can safely say that 100% of the Hyundai automobiles I own (and I have 2) have never broken down – that doesn’t mean Hyundai automobiles are 100% reliable.  Nor does Mr. Kirby’s unattributed and unexplained statistic demonstrate that SeaWorld has “a dismal safety record.” 

But, believe it or not, that’s not the worst of it.  Mr. Kirby also states that “There have been many highly publicized attacks by other supposedly ‘well-trained’ animals on human trainers, and a simple Google search shows how prevalent these preventable tragedies are.”  The hyperlinks in my quote lead to the same place as in Mr. Kirby’s article.  Go ahead ... check them out. 

So what did you learn?  What about those “highly publicized attacks?”  First, while some of these are undoubtedly serious, and all are unfortunate, not all could fairly be characterized as “tragedies” as Mr. Kirby claims.  While I wouldn’t want to be a 7 year old that got bit while petting a dolphin, given that it resulted in a bruise that didn’t break the skin, I personally don’t view that as a tragedy.  Likewise, I think it is reasonable to assume that professional animal trainers, like veterinarians, accept the fact that animal bites may come with the job and therefore the fact that a sea lion bit a trainer during a performance, resulting in a bite wound, could hardly be called a “tragedy” either.  This is not to demean or minimize those animal incidents that were, indeed, tragic, but only to point out that Mr. Kirby’s blanket characterization of these incidents is needlessly overdramatized to make his point.

And what about the Google search?  Apparently to prove that captive animal attacks are “prevalent” and “preventable,” Mr. Kirby links to a Google search for the phrase “captive animal attacks” which results in approximately 1.79 million hits.  But the number of hits that a phrase turns up on Google says absolutely nothing about the seriousness, or lack thereof, of a problem.  Ever wonder how much of an issue “garden hose strangulation” is?  It must be significant, because Google has about 101,000 entries on the subject.  How about death due to hamburgers?  That’s a real problem according to Google ... 16.6 million entries on that.  And what are all those gun-control people afraid of?  According to 33.5 million entries on Google, “playing with guns is safe.”  Another 242 million entries apparently affirm that “its ok to eat poison.”  So what does a Google search showing 1.79 million hits on “captive animal attacks” prove or even suggest about the prevalence of such preventable tragedies?  Nothing.

In closing, I think it is worth noting that I don’t know Mr. Kirby at all.  We’ve never met and have never spoken.  Until yesterday, I had never read any of his work, and I’m relatively confident he has never read any of mine.  However, based on his biography, he appears to be an accomplished and capable journalist with nearly two decades of experience and impressive credentials.  Unfortunately, that’s what makes his recent piece about the SeaWorld case all the more disturbing – the public has a right to expect better from a professional like Mr. Kirby and Mr. Kirby should demand better from himself – regardless of his personal (and pretty clear) views on an issue.  I have no problem with taking a position and arguing it (its what I do everyday), just do it fairly - without resorting to false drama, made up evidence, or innuendo to do it.

    


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