BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 1
No.
Time
Stamp
Description
Misleading and/or Inaccurate
1.
:01-- 1:13
Opening Sequence: Under
soundtrack consisting of actual
911 calls, five separate pieces
of footage combined to depict
(1) trainer (presumably Dawn
Brancheau) swimming in a tank
with a whale (presumably
Tilikum); (2) various
interactions between the trainer
and the whale in the water,
including the whale circling
trainer; and (3) the whale
making aggressive move
towards the trainer.
The Opening Sequence is false and misleading. It consists of separate pieces of
innocuous training and show footage taken by SeaWorld’s underwater cameras cobbled
together (under actual 911 calls regarding Dawn Brancheau) to mislead the audience
into believing it is viewing footage of the fatal incident between Ms. Brancheau and
Tilikum on February 24, 2010. However, the Opening Sequence does not contain
footage of an attack, and neither Ms. Brancheau nor Tilikum are depicted in the
Opening Sequence.
In addition, the Opening Sequence casts SeaWorld in a false light, misleading the
audience into believing that SeaWorld trainers, including Ms. Brancheau, swam with
Tilikum, which never occurred. From the date that Tilikum arrived at SeaWorld in
1993, SeaWorld had special safety protocols for the care and handling of Tilikum which
prohibited any employee from conducting waterwork with Tilikum at any time.
Evidence:
1. 1/6/93 Memorandum from Brad Andrews (See BF Index #1)
2. Shamu Stadium Orientation Checklist (See BF Index #27)
3. SeaWorld Animal Training SOP Section XI – Tilikum Protocol (See BF Index #32)
4. References in OSHA Trial Record to Tilikum and his protocols (Testimony of
Schaber, Grove & Mairot) (See BF Index #25, 10, 14)
2.)
1:40
Introduction to cast member
John Hargrove, who throughout
Film speaks about Tilikum.
Mr. Hargrove worked at SeaWorld San Diego from 1995 until 2001 and SeaWorld
Texas from 2008 through August, 2012. Hargrove never worked at SeaWorld Florida,
and never worked with Tilikum.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 2
No.
Time
Stamp
Description
Misleading and/or Inaccurate
3.
1:54
Introduction to cast member
Samantha Berg, who
throughout Film speaks about
Tilikum.
Ms. Berg has not worked at SeaWorld in over 20 years. Ms. Berg worked at SeaWorld
Florida from February 1990 until August 1993. She worked primarily with dolphins,
beluga whales and sea lions, and had very limited experience with killer whales. Ms.
Berg was not assigned to Tilikum’s team and did not work with Tilikum.
Ms. Berg has conceded her lack of expertise in the context of offering opinions in the
zoological area. In an email dated September 7, 2011 to John Black, OSHA’s Lead
Trial Lawyer in the Department of Labor’s case against SeaWorld, Ms. Berg offers to
critique the expert report of Jeff Andrews, Sea World’s Zoological expert in the trial,
but conceded: “Mainly, I am concerned that because I only worked at SWF for 3 ½
years – and one year at Shamu Stadium that my testimony may not be credible
compared to a guy with 25 years of zoological experience.” She also admits: My direct
knowledge of SeaWorld’s Procedures for training their staff only extends to what was in
place up until August of ’93 – I question whether this qualifies me to speak to
SeaWorld’s current safety or training procedures.” Although Counsel for OSHA
rejected Ms. Berg as a witness at trial, Ms. Berg repeatedly opines on these topics
throughout the Film.
Evidence:
1. Email chain from Samantha Berg dated September 7, 2011 (See BF Index #39)
4.
2:10
Introduction to cast member
Kim Ashdown, who throughout
the Film speaks about Tilikum.
Ms. Ashdown worked at SeaWorld Florida primarily with dolphins, beluga whales and
sea lions, and with killer whales for only approximately 4 months. Ms. Ashdown was
not assigned to Tilikum’s team and did not work with Tilikum. Ms. Ashdown never
performed waterwork with killer whales.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 3
No.
Time
Stamp
Description
Misleading and/or Inaccurate
5.
2:12
Introduction to cast member
John Jett, who throughout the
Film speaks about killer whales
and Tilikum.
Mr. Jett has not worked at SeaWorld in over 17 years. Mr. Jett worked at SeaWorld
Florida from 1992-1996, and had limited interaction with killer whales. Mr. Jett
worked for a short period of time with Tilikum under the supervision of a senior trainer.
Mr. Jett was never the trainer in charge of any session with Tilikum, and had no
decision on how or when Tilikum would be worked.
6.
2:43
Introduction to cast member
Dean Gomersall, who
throughout Film speaks about
killer whales and Tilikum.
Mr. Gomersall worked at SeaWorld Florida with sea lions, beluga whales and dolphins,
and never worked with killer whales. He never worked with Tilikum.
7.
2:54-3:12
Using Ms. Ashdown, Film
suggests that the only
qualifications to become a killer
whale trainer is to be a good
swimmer and have a good
personality.
This is false and highly misleading. The path to becoming a killer whale trainer is
lengthy and demanding, and the Film ignores the ladder of employment -- the many
beginning and intermediate steps necessary to be promoted through the ranks to attain
the level of killer whale interaction trainer. For example, Mr. Gomsersall never attained
the position of killer whale trainer, and was not permitted to interact with any killer
whales. Ms. Berg, Ms. Ashdown and Mr. Hargrove did work with killer whales but did
not interact with Tilikum.
Evidence:
1. OSHA Hearing Testimony of Kelly Flaherty Clark Tr. 87-92 (See BF Index #8)
2. OSHA Hearing Testimony of Jenny Mairot Tr. 1271-1295 (See BF Index #14)
3. OSHA Hearing Testimony of Lynn Schaber Tr. 292-306 (See BF Index #25)
8.
2:08
Introduction of Jeff Ventre
Ventre has not worked for SeaWorld for over 18 years. Mr. Ventre was employed by
SeaWorld from November 1987 through December 1995. Mr. Ventre worked with
killer whales for approximately three years, and while he excelled physically at in-water
interaction, he was not a decision maker, did not plan the day, and was considered a
junior level trainer.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 4
No.
Time
Stamp
Description
Misleading and/or Inaccurate
9.
4:48
Voice of Ms. Berg over Film
showing female trainer riding a
whale.
This sequence misleads the audience into believing that Ms. Berg is the trainer depicted
as riding the whale (i.e. engaging in “waterwork” with the whale) thereby making it
appear that Ms. Berg had relevant experience. In fact, the trainer is not Ms. Berg, it is
Holly Byrd, and is footage recorded at SeaWorld more than 10 years after Ms. Berg left
SeaWorld. SeaWorld has no record of Ms. Berg doing waterwork with killer whales;
even if she did, it was very limited.
10.
8:24
Interview of George Tobin,
who states that Tilikum ate Ms.
Brancheau’s arm.
This is false. Tilikum did not eat Ms. Brancheau’s arm; The Coroner’s Report is clear
that Ms. Brancheau’s entire body, including her arm was recovered.
Evidence:
1. Sheriff’s Investigative Report at pg. 28 (Witness Valerie Greene). (See BF Index
#20)
11.
8:56
John Jett: OSHA’s conclusion
to halt waterwork with killer
whales “will have a ripple
effect through the whole
industry,” and various clips are
used to imply that SeaWorld
only suspended waterwork after
being cited by OSHA and as a
result of public outrage.
Film incorrectly states that OSHA stopped the waterwork at SeaWorld. In fact,
SeaWorld voluntarily suspended waterwork with killer whales at each of its three parks
on February 24, 2010, the day of the incident with Ms. Brancheau, over six months
before SeaWorld was cited by OSHA, and over two years before trial commenced on
the OSHA citation.
Evidence:
1. OSHA Hearing Testimony of Kelly Flaherty Clark Tr. 78-80. (See BF Index #8)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
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No.
Time
Stamp
Description
Misleading and/or Inaccurate
12.
10:12 –
14:02
Film implies, through David
Duffus (“it’s not a singular
event”) and Howard Garrett
(“Without missing a beat they
went from Washington to
Iceland and began capturing
there”), that SeaWorld
continues to capture whales in
the wild.
This implication is false. SeaWorld has not captured whales in nearly 34 years. The
last such collection by SeaWorld took place in 1979.
Evidence:
1. NMFS Data Sheet for Permit #240 (Kasatka) (See BF Index #16)
2. NMFS Data Sheet for Permit #268 (Katina) (See BF Index #17)
13.
13:40
Garrett states: “They
[SeaWorld] were finally ejected
from the state of Washington by
a court order in 1976.”
This is false. There is no court order ejecting or banning SeaWorld from the State of
Washington. To the contrary, the court dismissed the case because of a stipulated
settlement between the parties in which SeaWorld voluntarily agreed not to exercise its
rights under the valid permit issued to SeaWorld by the State of Washington to capture
whales.
Evidence:
1. State of Washington v. Sea World, Inc. Stipulation of Dismissal (See BF Index #28)
2. State of Washington v. Sea World, Inc. Motion for Order of Dismissal (See BF Index
#29)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 6
No.
Time
Stamp
Description
Misleading and/or Inaccurate
14.
15:39
Discusses training technique of
punishing whales by food
deprivation. The Film implies
that all institutions with captive
whales, including SeaWorld,
use this technique. For
example, later in the Film,
when discussing the incident
involving Dawn Brancheau, the
issue of food is brought up
(1:08:47. 1:09:13) (the sound of
ice at the bottom of the bucket
means that food is running out)
with the misleading implication
that SeaWorld deprived
Tilikum of food or otherwise
used a deprivation type of
training technique.
This implication is false. Tilikum arrived at SeaWorld weighing 7,700 pounds, and
currently weighs 12,000 pounds. SeaWorld has never deprived Tilikum of food for any
reason, training or otherwise. Prior to Tilikum’s arrival at SeaWorld and continuing to
this day, SeaWorld has only utilized operant conditioning, a scientific method that
professional animal trainers have used for decades. Through rigorous efforts, trainers
gradually increase the frequency of desired animal behavior, and minimize the
occurrence of undesirable behavior, by encouraging the former with “positive
reinforcement” and ignoring (and thereby discouraging) the latter. Punishment is never
part of operant conditioning, and punishment is never employed at SeaWorld.
SeaWorld pioneered and is the recognized world’s leader in the use of operant
conditioning principles for the training of killer whales.
15.
17:22
Further discussion of food
deprivation at Sealand of the
Pacific.
See Box 14 above.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
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No.
Time
Stamp
Description
Misleading and/or Inaccurate
16.
8:53
David Duffus is identified as
“OSHA Expert Witness, Whale
Researcher.”
Duffus lacks requisite expertise to opine about the behavior of whales in captivity.
Duffus’ experience is limited to the observation of wild whales to predict their seasonal
movements and to understand whether whale-watching “disturbs” the whales. He has
not conducted “any studies” on captive whales, and has no experience related to the
interaction of any animals in a zoo or aquarium setting nor any expertise related to the
safety of those employees who work with such animals. In addition, Duffus has
admitted that he does not know whether being in captivity alters a killer whale’s
behavior, and he also has no experience training whales.
When questioned by Sea World’s lawyer at the OSHA proceeding, Duffus testified that
Sea World is the expert and he suggested SeaWorld “go to work” and think about how
they can “balance stuff”. He further testified “I’ve got no particular bone to pick with
the citation and Sea World and the corporate behavior and the governance of these
operations…” “I’ve got no particular issue with SeaWorld, their shows. I guess my
main concern is the bar - - is the height of the bar for safety”.
SeaWorld challenged Duffus’ qualifications at the OSHA hearing, and Duffus’ lack of
relevant expertise is an issue currently pending before the appellate court. In an Order
dated August 6, 2013, OSHA Administrative Judge Kenneth Welsch clarified that
Duffus “is an expert in the behavior of killer whales in the wild, but he has no expertise
in the training of captive killer whales.”
Evidence:
1. David A. Duffus Deposition taken August 30, 2011, Pgs. 38-42; Pgs. 128-130. (See
BF Index #7)
2. August 6, 2013 Decision and Order Granting Petition for Modification of Abatement
Date (See BF Index 18)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 8
17.
18:47-
21:58
Interview of Corrine Cowelle
and Nadine Kallen,
interspersed with interview of
David Duffus.
Cowelle/Kallen purport to
provide eyewitness account of
Keltie Byrne incident, stating
unequivocally (22:08) that
Tilikum went after Byrne
while the other two whales
“kind of circled around”
Film misleadingly fails to disclose that David Duffus was the foreman of the five
person jury at the 1991 Coroner’s Inquest into the death of Keltie Byrne. The Film
also fails to disclose the official Verdict of the Inquest. The Verdict reached by Duffus
and his fellow jurors, after considering the testimony of nineteen witnesses, was that
Ms. Byrne’s cause of death was “drowning DUE TO or as a consequence of forced
submersion by Orca (killer) whales, falling into the whale pool.” Duffus and his
fellow jurors found that Ms. Byrne “fell into the whale pool . . and while attempting
to get out the whales intervened,” and that “rescue attempts . . . were thwarted by the
whales.” (Emphasis added.) Contrary to the account of Cowelle/Kallen in the film,
Duffus and his fellow jurors did not find that Ms. Byrne was pulled into the pool by a
whale, that Tilikum was the instigator, or that Tilikum was otherwise more to blame
than the other two whales for the death of Keltie Byrne. Consistent therewith, Duffus
testified at his deposition in the OSHA hearing that Ms. Byrne “slipped into the water,”
“the whales didn’t pull her into the pool. She slipped and fell . . . She did attempt to
get out of the water. That’s when the whales pulled her back in.” (Emphasis added).
These critical omissions from the Film are highly misleading because the account of
Cowelle/Kallen is flatly inconsistent with the official Verdict of the Coroner’s Jury, for
which Duffus served as the foreman of the jury. Presenting the true facts concerning
Duffus, the Coroner’s Jury and the Verdict would either undercut the veracity of
Cowelle and Kallen or undercuts the competence and veracity of Duffus.
Moreover, it appears Ms. Cowelle and Ms. Kallen first came forward with their story
20 years after the incident, on the eve of the 2011 OSHA hearing against SeaWorld, at
which time they contacted David Kirby, a known anti-captivity activist and adversary
of SeaWorld. They informed Mr. Kirby they were six feet away from the attack when
it occurred and that Tilikum was primarily responsible for the incident, which is
directly contrary to the evidence elicited during the 1991 Coroner’s Inquest. Mr. Kirby
passed this story along to Jeff Ventre, one of the former trainers featured in the Film.
Mr. Ventre passed the information on to Lara Padgett, the OSHA Investigator assigned
to the SeaWorld case, and John Black, the Department of Labor Senior Trial Lawyer
who tried the case at the 2011 hearing. Significantly, neither Ms. Cowelle nor Ms.
Kallen were called to testify under oath at the 1991 Coroner’s Inquest or the 2011
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 9
OSHA hearing, however the Film presents their contradictory story as fact.
Evidence:
1. 6/5/91 Verdict of Coroner’s Inquest (See BF Index #26)
2. Duffus Deposition at 55, 58 (It should be noted that after being hired by OSHA as
an expert witness, Duffus changed his testimony to suggest that Tilikum was primarily
responsible for the death of Ms. Byrne, which testimony is flatly contradicted by
Duffus’ work and conclusions as foreman of the Coroner’s jury twenty years earlier.)
3. Email from Lara Padgett dated August 1, 2011 (See BF Index #41)
18.
21:28
Cowelle/Kallen: “No one ever
contacted us. There was an
inquest. No one ever asked
us to say what happened.”
See Note 17.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 10
19.
21:49
Cowelle/Kallen: “So, in the
newspaper articles the cause
of death was that she
accidently drowned, but she
was pulled under by the
whale.”
See 17. This account, which implies both a cover-up and that one whale (Tilikum) was
to blame, is inconsistent with the official Verdict of the Coroner’s Jury, of which
Duffus was the foreman, which found that Ms. Byrne drowned as the result of “forced
submersion by killer whales.” (Emphasis added.) The Cowelle/Kallen account is also
inconsistent with the account of Sealand of the Pacific trainer Eric Walters in the
article “The Killer in the Pool” by Tim Zimmerman, published 7-30-10 in Outside
Magazine. Mr. Walters, who also appears in the Film (15:06, 15:32) stated in the
article that the female Nootka, not Tilikum was the aggressive of the three whales:
“Each whale had a distinctive personality. Tilikum was youthful, energetic, and eager
to learn. ‘Tilikum was our favorite,’ says Eric Walters. ‘He was the one we all really
liked to work with. Nootka, with her health issues, was the most unpredictable.’” Prior
to the incident involving Ms. Byrne, “according to Walters, Nootka pulled a trainer
into the water. (He quickly yanked her out.) Twice she tried to bite down on Walters's
hands. Not even the audience was safe. A blind woman was once brought onto the
stage to pat Nootka's tongue. Nootka bit her, too.” The Film misleadingly omits this
account by Mr. Walters.
20.
21:59
Duffus: You know there’s a
bit of smoke and mirrors
going on. One of the
fundamental facts is that none
of the witnesses were clear
about which whale pulled
Keltie in.”
See 17. Again, neither Duffus nor the Film disclose that Duffus was the foreman of
the Coroner’s Jury. Duffus implies here that a particular “whale pulled Keltie in”
however, Duffus’ own verdict as foreman in the Coroner’s Inquest was that Ms. Byrne
fell into the pool, and was not “pulled in,” and that her forced submersion thereafter
was by the “whales,” not by one whale.
21.
22:08
“Yes, yeah it was the large
whale, Tilikum, the male is
the one that went after her and
the other two just kind of
circled around, but he was
definitely the instigator.”
See 17-20. In the 1991 interview of the sister that recently played on Nightline, she
says that a whale “pulled her under.” She did not identify which whale. She did not
state that it was the “large whale Tilikum,” or state that it was the “male.”
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 11
22.
22:51
Huxter: “My understanding of
the situation is that Tilikum
and others would not be used
in shows, they would not be
performance animals.”
This is not accurate, and appears to a mis-statement concerning the permits issued to
bring Tilikum and the other Sealand of the Pacific whales into the United States.
Tilikum was initially brought into the United States on an Emergency Permit based on
the fact that the two female Sealand whales were pregnant and would not allow
Tilikum to leave their tank. Pending the official permitting process, Tilikum was given
an emergency permit which allowed him to be moved to SeaWorld, but which did not
permit public display. The final permit ultimately obtained for Tilikum and the other
Sealand whales was for the public display of all three animals.
Evidence: Export Permit. (See BF Index #31)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 12
23.
24:35
“And to this day, there’s no
record of an orca doing any
harm to any human in the
wild.”
This is false. There are documented instances of killer whales attacking humans in the
wild.
• In the 1910s, the Terra Nova Expedition recorded that killer whales had
attempted to tip ice floes on which an expedition photographer and a sled dog
team were standing.
• On June 15, 1972, 43-foot-long (13 m) wooden schooner Lucette (Lucy) was
holed by a pod of killer whales and sank approximately 200 miles west of the
Galapagos Islands. The group of six people aboard escaped to an inflatable life
raft and a solid-hull dinghy.
• On September 9, 1972, a Californian surfer named Hans Kretschmer reported
being bitten by a killer whale at Point Sur. His wounds required 100 stitches.
• In August 2005, while swimming in four feet of water in Helm Bay, near
Ketchikan, Alaska, a 12-year-old boy named Ellis Miller was "bumped" in the
shoulder by a 25-foot transient killer whale. The boy was not injured.
• During the filming of the third episode of the BBC documentary "Frozen
Planet" (2011), a group of orcas were filmed trying to "wave wash" the Film
crew's 18-foot zodiac boat as they were filming. The crew had earlier taped the
group hunting seals in the same fashion. It was not mentioned if any of the
crew were hurt in the encounter.
24.
24:35
“[t]he adult offspring never
leave their mother’s side.”
The Film offers no scientific basis for this statement, SeaWorld is aware of none, and
the statement defies logic. If no adult offspring ever leave their mother, there would be
no genetic diversity necessary for survival or separate pods of killer whales. It is
estimated that there currently exists thousands of pods of killer whales in the wild.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 13
25.
24:35
Garret: “they have lifespans
very similar to human life
spans. The females can live
to about 100, maybe more –
males to about 50 or 60.”
There is no scientific support for this assertion. The most recent study on life
expectancy of southern resident killer whales is that females live between 30 and 46
years and males 19 to 31 years.
Garret stated in an interview for the film Lolita: Slave to Entertainment that “in the
wild female [killer whales] average 50 years of age,” which is consistent with the
scientific evidence upon which SeaWorld bases its numbers.
Evidence:
1. Paper from the Canadian Science Advisory Secretariat; (See BF Index #4)
2. orcahome.de/lifeexpectancy.htm: “Researchers have determined an average life
expectancy for wild killer whales of about 30 years for males and 50 years for
females.”
3. Lolita Slave to Entertainment DVD Copyright 2003.
26.
25:38
Marino: “The orca brain just
screams out intelligence
awareness. We took this
tremendous brain and put it in
a magnetic resonance scanner.
What we found is just
astounding. . .”
This is misleading. The most recent scientific research demonstrates that cetacean
behaviors used to argue for high levels of intelligence are found commonly across
mammals and vertebrates, and that cetacean intelligence is qualitatively no different
than other vertebrates.
Evidence:
1. P.R. Manger, Questioning the interpretations of behavioural observations of
cetaceans: is there really support for a special intelligence status for this mammalian
order?, Neuroscience (2013)
27.
26:29
Photo of mass stranding.
The whales depicted in the photograph are pilot whales, not killer whales.
28.
27:42
Duffus: “I’ve spent a lot of
time with killer whales and
they’re always in charge, I
never get out of the boat and I
never mess with them.”
Contradicted by Garrett (24:09): “What we learned is that they are amazingly friendly
and understanding and intuitively want to be your companion.”
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 14
29.
28:52
Ventre: He arrived I think in
1992. I was at Whale and
Dolphin Stadium when he
arrived and he was twice as
large as the next animal in the
facility.”
This misleadingly suggests that Ventre was present at Tilikum’s arrival at SeaWorld in
1992. However, killer whales are housed at Shamu Stadium, not at Whale and
Dolphin Stadium. By his own admission, when Tilikum arrived in 1992, Ventre did
not work at Shamu Stadium and he had no firsthand knowledge of Tilikum’s arrival.
30.
29:08
Jett: Tilikum was raked upon
arrival at SeaWorld, with
implication that killer whales
are not raked in the wild.
The assertion regarding Tilikum is misleading, and the implication is false. Tilikum
was not immediately introduced to the other whales upon his arrival at SeaWorld.
When he was introduced, he did not receive rakes right away. As social hierarchy was
established, in order to establish dominance, the females did on occasion give Tilikum
superficial rake marks, none of which affected his health. The raking stopped within a
few weeks. Ultimately, the females bred with Tilikum. There is scientific evidence
that raking occurs in the wild (see nos. 43 and 44, infra), and that because whales
generally travel in pods, whales do not “run away” from their pod to escape raking.
Evidence: Ingrid Visser Paper (1998) (See BF Index #38)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 15
31.
31:21
Ventre: “we weren’t given the
full details of Keltie’s
situation.”
This is false. Ventre joined SeaWorld in 1987, four years before Tilikum’s arrival. All
new trainers, including Ventre when he was transferred to work with killer whales
years after Tilikum’s arrival, received the “Tili Talk,” which included Tilikum’s
history. New trainers must complete the Shamu Stadium Orientation Checklist that
tests their mastery of necessary skills. They must also demonstrate an understanding
of SeaWorld’s Animal Training SOP (standard operating procedures), including a
dedicated chapter on Tilikum-specific protocols. Eventually, new trainers sign a form
stating their understanding of the SOP. Each year, they must review and re-sign the
SOP. In no case may a trainer with fewer than eighteen months’ experience have close
contact with a whale, nor may a trainer with fewer than three years’ experience work
without the supervision of a senior trainer. Once a trainer is assigned to a whale’s
“team,” he must familiarize himself with its “profile” and “incident reports” and may
only progress from non-tactile to tactile work depending on senior trainers’ approval.
Because Mr. Ventre was permitted to work with Tilikum, he was responsible for
complete knowledge of Tilikum’s history, including the incident at Sealand of the
Pacific.
Evidence:
1. Shamu Stadium Orientation Checklist (See BF Index #27)
2. Tilikum Animal Profile (See BF Index #30)
3. SeaWorld Animal Training SOP Section XI – Tilikum Protocol (See BF Index #32)
4. References in OSHA Trial Record to Tilikum and his protocols (Testimony of
Schaber, Grove & Mairot) (See BF Index #25, #10 and #14)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 16
32.
31:35
Berg : “I was under the
impression that Tilikum had
nothing to do with [Keltie
Byrne’s] death.
This is false. At the time of Tilikum’s arrival, all trainers and zoological personnel
(which included Ms. Berg) received a memo discussing the circumstances of Keltie
Byrne’s death: “Haida, Nootka and Tilikum were involved in an incident at Sealand of
the Pacific, Ltd. in which a trainer fell into the pool with the animals, could not be
rescued because of the animals’ activity and drowned.” In addition, Ms. Berg was a
named plaintiff in a 2011 federal court lawsuit, along with PETA, on behalf of Tilikum
and four other killer whales. Ms. Berg’s Complaint in that action (paragraph 92)
directly contradicts her statement in the Film: “As an associate orca trainer . . .Ms.
Berg was not permitted to conduct direct training with Plaintiff Tilikum due to his
known aggression towards humans.”
Evidence:
1. 1/6/93 Memorandum from Brad Andrews (See BF Index #1)
2. Complaint in Tilikum et al v. SeaWorld Parks & Entertainment, U.S. District Court
for the Southern District of California, Case No. 11-CV-2476 JM WMC (October 25,
2011) (See BF Index #22)
33.
31:35
Berg’s account of a trainer
being yelled at for walking
near Tilikum’s pool with wet
suit unzipped.
It has always been SeaWorld’s “area safety protocol” that a trainer walking around or
near any of the whale pools must have a zipped up wet suit; this was not a policy
instituted solely with respect to Tilikum. The screen shot at 31:55 depicts two trainers
whose wetsuits are completely zipped up. Berg’s account demonstrates that
supervisors had a heightened awareness around Tilikum. The incident with the wetsuit
demonstrates that the supervisors made this awareness very clear to all personnel
present.
Evidence:
1. Shamu Stadium Orientation Checklist (“wetsuits zipped poolside”) (See BF Index
#27)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 17
34.
32:47
Trainer in red wetsuit in the
water, then cuts to segment
showing a large whale
jumping. The whale is
Tilikum in the show pool, and
gives the impression that the
trainer is in the water with
Tilikum.
By splicing together two disparate pieces of film, the viewer is misled into thinking
that the trainer in the red wetsuit was in the water with Tilikum. This casts SeaWorld
in a false light, misleading the audience into believing that SeaWorld trainers swam
with Tilikum, which never occurred. From the date that Tilikum arrived at SeaWorld
in 1993, SeaWorld had special safety protocols for the care and handling of Tilikum
which prohibited any employee from swimming with Tilikum at any time. No water
work (except for the desensitization safety training conducted with Tilikum in a
controlled environment prior to February 24, 2010 in pools equipped with a lift floor)
was ever done with Tilikum.
35.
33:04
Berg: Tilikum lunged at
trainer Liz Morris (now
Thomas).
This is false. Tilikum never lunged at trainer Liz Morris. In the late 1980’s, before
Tilikum arrived at SeaWorld a male killer whale named Kanduke lunged at Ms.
Morris.
36.
34:19
Ventre: Tilikum lunged at Liz
Morris, and he was instructed
to destroy his tape of the
incident.
This is false. Kanduke incident occurred before Ventre worked at Shamu Stadium.
Tilikum never lunged at trainer Liz Morris. SeaWorld management never told Ventre
(and would never tell any trainer) to destroy a tape.
37.
33:42
Kelly Clark “rape” testimony.
This is misleading. Ms. Clark testified for three days at the OSHA hearing. Film uses
this one sentence of testimony to evoke emotional bias, and omits all of Ms. Clark’s
testimony regarding the lack of whale aggression.
38.
36:39-
39:26
Separating calf from mother
Kalina was disruptive to her mother and the other whales, and at the age of 4 ½ was
moved to another park. The Film misleadingly depicts a calf that is only days old, not
4 ½ years old.
39.
38:05
Separating Kasatka (mother)
and Takara (daughter).
Separation occurred at SeaWorld San Diego in April of 2004 when daughter Takara
was 12 years old.
Takara, at the time of the move, had her own calf, Kohana, who went with her to
Orlando. At the time of the move, John Hargrove was not even working for any
SeaWorld park, much less Sea World San Diego. By that point, he had not worked for
SeaWorld in 3 years.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 18
40.
38:05
Hargrove: SeaWorld brought
in a scientist to analyze the
vocals. “They were long-
ranged vocals . . .looking for
Takara.”
This is false. SeaWorld did not call in a scientist to analyze Kasatka’s vocals. There is
no evidence, scientific or otherwise, that these were “long ranged vocals . . .looking for
Takara.”
During this narration, the Film shows footage of a killer whale, leaving the viewer with
the impression that the whale is Kasatka. The whale is at what appears to be
underwater viewing glass and is opening and closing its mouth, which leaves the
impression that the whale is “vocalizing” and otherwise “calling for Takara”.
However, this footage is not Kasatka, nor was this even taken at SeaWorld San Diego,
which is where Kasatka lives. In fact, whales do not vocalize through their mouths.
Rather, they vocalize through their blowholes.
John Hargrove was not working for SeaWorld at the time of Takara’s move, and would
not have known what behavioral reaction, if any, Kasatka had to Takara’s move.
41.
41:05
Garrett: We knew by 1980,
after half a dozen years of the
research, that they live the
equivalent to human life
spans.
This is false. There is no scientific evidence to support Garrett’s assertion. The most
recent study on life expectancy of southern resident killer whales is that females live
on average between 30 and 46 years and males 19 to 31 years.
Evidence:
1. Paper from the Canadian Science Advisory Secretariat; (See BF Index# 4)
2. orcahome.de/lifeexpectancy.htm: “Researchers have determined an average life
expectancy for wild killer whales of about 30 years for males and 50 years for
females.”
42.
41:31
Ventre: “Dorsal collapse
happens in less than 1 percent
of wild killer whales. We
know this.”
This is false. There is no scientific evidence to support this claim of less than 1
percent. To the contrary, there is scientific evidence that nearly one-quarter of adult
male southern resident killer whales in the wild have collapsing, collapsed or bent
dorsal fins.
Evidence:
1. Ingrid Visser Paper (1998) (See BF Index #38)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 19
43.
42:19
Marino: “A lot of violence
that you don’t ever see in the
wild.”
This is false. There is scientific evidence (including photographs) of orca-on-orca
raking in the wild.
Evidence:
1. Ingrid Visser Paper (1998) (See BF Index #38)
2. Balcomb III, et al Technical Report: Killer Whales of Southern Alaska photos (See
BF Index #3)
44.
43:29-
43:56
Single example of a whale
dying in captivity from
whale-on-whale aggression
with implication that this does
not occur in the wild.
This implication is false. There is scientific documentation of whale-on-whale orca
aggression in the wild.
Evidence:
1. Ingrid Visser Paper (1998) (“Scarring on cetaceans has been recorded for a wide
range of species with many of these scars attributed to inter-male aggression [citation
omitted], but prolific scarring has also been reported on females of some species.
[citations omitted]. The extensive scarring of the two adult male killer whales reported
here cannot be positively attributed to one sex or the other, but it is highly probable
that conspecifics [the same species] caused the parallel tooth rakes, due to the spacing
of the rake marks. Scheffer (1969) reports a killer whale marked with regular lines
suggesting scars made by the teeth of another killer whale. . . It is likely that any other
killer whale involved in a mutually aggressive interaction would also show some
scarring. . .Rake marks from killer whales are not uncommon on other species of
cetaceans, e.g., . . . humpback whales, . . . gray whales, . . .bowhead whales. These
scars all resemble those reported on the two adult male killer whales in this paper.”
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 20
45.
43:57 –
47:29
Video footage of John Sillick
whale incident in 1987 (26
years ago).
Jett: “I saw that there was just
a lot of things that weren’t
right and there was a lot of
misinformation.”
Berg: “John Sillick was the
guy who in 1987 was crushed
between two whales at
SeaWorld of San Diego . ..
and the SeaWorld party line
was that was a trainer error.”
Gomersall: It was John’s fault
and he was supposed to get
off that whale. And for years
I believed that and I told
people that.”
Ventre: “We weren’t told
much about it. Other than it
was trainer error. . .”
Gomersall: “Years later you
look at the footage and you
go, you know what, he didn’t
do anything wrong.”
None of the trainers critiquing this incident worked at SeaWorld San Diego or were
present for this incident. The rehearsed routine called for the trainer to ride once
around the perimeter of the pool on the back of the whale. Making a poor judgment
call based on the routine, Mr. Sillick decided to ride a second perimeter –facing
backward -- and took the whale around a second time. This act threw off the timing of
the send signal given to the other whale, which performed the behavior exactly as
requested, resulting in the accident, not an act of aggression.
The footage is misleading because it does not show what occurred in the stadium prior
to the incident, it does not explain the rehearsed routine for the behavior, and it fails to
disclose that the trainer failed to get off the whale after the first perimeter. These
omissions enable the cast to falsely claim that SeaWorld is guilty of “misinformation,”
that Mr. Sillick “didn’t do anything wrong,” and that the incident was an act of
aggression.
Jeff Ventre admitted in a November 16, 2011 email directed to OSHA Trial Lawyers
John Black and Tremelle Howard-Fishburne and OSHA Investigator Lara Padgett, that
the Sillick accident was “not even an act of whale aggression”. He goes on to say that
“It was a trainer being in the wrong place and getting smashed while riding a whale.”
Nevertheless, the Film portrays the incident as an act of aggression.
Following this 1987 incident, and throughout the 26 years since, SeaWorld has
developed and incorporated formal protocols for all waterwork interactions to
minimize trainer discretion with respect to rehearsed routines.
Evidence: Jeff Ventre November 16, 2011 email. (See BF Index #40)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 21
46.
47:26
Home video footage of
incident between trainer
Tamarie Tollison and Orkid.
Video footage shows that Ms. Tollison broke SeaWorld’s safety protocols, including
interacting with a killer whale (Orkid) without a spotter, and repeatedly stepping on
Orkid’s rostrum. The Film misleadingly portrays this incident as an act of whale
aggression, when the incident could have been avoided entirely had the trainer
followed SeaWorld’s protocols.
47.
49:13
Footage of employee at
SeaWorld San Diego riding a
killer whale while wearing a
bikini.
This occurred in 1971 – 42 years ago – at a time when SeaWorld was owned by the
original owners (the first of three prior owners), and prior to the current safety
protocols that have long been in place. This employee was a secretary, not a trainer,
and the event was a publicity stunt/photo opportunity. No such incident could
possibly occur at SeaWorld today.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 22
48.
49:23
Berg: “I believe that it’s 70
plus maybe even more, just
killer whale/trainer
accidents.” Visual:
documents purporting to be
incident reports.
This is inaccurate and highly misleading. The Film makes it appear that the depicted
documents are incident reports relating solely to SeaWorld. However, the document
depicted in the visual is an index maintained by a third party (not SeaWorld), and it
refers to other parks in addition to SeaWorld. For example the very first entry says
“Windsor Safari Park, England” (not affiliated with SeaWorld) which closed in 1992.
Most of the entries on the list relate to the 1980’s.
Sea World Corporate Curator Charles Tompkins testified during the OSHA hearing
that SeaWorld had 98 documented incidents involving its parks and its killer whales
during the 21 year time period of 1988 to 2009. As Mr. Tompkins explained, the fact a
situation was called an “incident” does not mean that it involved whale contact with a
trainer or trainer injury for that matter. In fact, of those 98 incidents, only 12 incidents
in 21 years involved actual injury to a trainer.
Mr. Tompkins further testified that the number of incidents decreased over time as
SeaWorld’s safety program became more sophisticated: Sea World Orlando hadn’t
experienced any incident for 5 years before the tragic incident with Ms. Brancheau.
The Film misleadingly fails to disclose that evidence.
Evidence:
1. OSHA Hearing Testimony of Charles Tompkins Tr. 369-376; 487. (See BF Index
#33)
49.
50:30
Video of John Hargrove with
bloody face. Film implies
that Hargrove was injured by
a whale.
This footage is misleading because Hargrove’s injury had nothing whatsoever to do
with any whale. Hargrove was doing a footpush into a stage slide and when he slid
across the stage, he hit his head on the concrete slideover because he didn’t perform
the maneuver correctly. In the correct maneuver, the trainer would keep his head up as
he enters the slideover area. Hargrove basically dove into the concrete, injuring
himself.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 23
50.
51:09
Ken Peters incident. Duffus:
“The whale jumped over [the
net] and came right after
him.”
As can be seen in the video, Duffus’ statement is not accurate. The whale (Kasatka)
crossed over but did not jump over the net, and did not “come after” Peters once Peters
crossed the net. The whale did not even swim all the way to the slideout.
51.
55:12
Daniel Dukes incident.
Ventre: “Well, all I know is
the public relations version of
it. . . he climbed the barbed
wire fence around the
perimeter and stayed after
hours.”
Ventre was no longer employed at SeaWorld at the time of this incident in 1999, so he
has no personal knowledge of the facts. His assertion of a “public relations version” is
false and misleading. The official Sherriff’s report includes a detailed timeline of the
events: SeaWorld employees first noticed Dukes in the pool around 7:20 am. 911 was
called at 7:25 am and an officer was dispatched to SeaWorld at 7:26 am. When the
sheriff arrived the body was still in the pool on Tilikum’s back. There was no barbed
wire fence.
Evidence:
1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19)
52.
55:44
Daniel Dukes incident. Jett:
“Perfect storyline” suggesting
that SeaWorld concocted a
story. “A mentally disturbed
guy hides in the park after
hours and strips his clothes
off and decides he wants to
have a magical experience
with an orca and drowns
because he became
hypothermic.
Jett was no longer employed at SeaWorld at the time of this incident in 1999, so he has
no personal knowledge of the facts. The implication that SeaWorld concocted a story is
false and designed to cast SeaWorld in a negative light. In fact, as set forth in the
official sheriff’s investigative report, Dukes was mentally ill and had a criminal
history. He had just gotten out of jail two days before he came to SeaWorld. He had
undressed, and his clothes were found on the north side of the pool deck. He had put
on a swimsuit. The cause of death was determined by the Medical Examiner to be an
accidental drowning. Further demonstrating the falsity of the Film’s claim that Dukes’
death was a case of whale aggression, Naomi Rose, Ph.D. of the Humane Society of
the United States, an outspoken critic of SeaWorld, was quoted as saying “since the
body was found on Tilikum’s back, it’s unlikely the whale was behaving aggressively.
. .The whale was probably playing with the man and continued to play with the body
after the man died.”
Evidence:
1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19)
2. Orlando Sentinel Article dated July 7, 1999 (See BF Index #21)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 24
53.
56:00
Ventre: He was not detected
by the night watch trainers
who were presumably at that
station.
This is false. In 1999, there was no night trainer or watchperson stationed at Tilikum’s
pool. Rather, there was a night watchman responsible for walking the entire perimeter
of the stadium and pools.
Evidence:
1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19)
2. Orlando Sentinel Article dated July 7, 1999 (See BF Index #21)
54.
56:07
Jett: There were cameras all
over the back of Shamu’s
Stadium, pointing every
which way. . .I find it hard to
believe that nobody knew
until the morning that there
was a body in there.”
This is false. There were no cameras pointing to the back area at Shamu Stadium. In
the various still photographs used in the Film at 56:10, there is no photograph of the
back area of the stadium.
Evidence:
1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19)
2. Orlando Sentinel Article dated July 7, 1999 (See BF Index #21)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 25
55.
56:30
Ventre: “The public relations
spin on this was that he was
kind of a drifter and died of
hypothermia but the medical
examiner’s reports were more
graphic than that.”
This is false. There was no “public relations spin.” The official Orange County
Sheriff Investigator’s Report indicated that Dukes was a “transient” who was arrested
for retail theft and spent three days in jail in Vero Beach, Florida and was released two
days before arriving in Orlando where he was observed at SeaWorld (due to strange
clothing and lack of personal hygiene) the day before his death. The Report further
provided that at 7:20 am on July 6, 1999, SeaWorld employee Michael Dougherty
headed to the underwater viewing area where the fitness facility is located when he
noticed human legs in the tank with Tilikum. He knew this was a problem because of
SeaWorld’s safety protocol that no one is allowed in the water with Tilikum.
Dougherty alerted security. At the same time, Arturo Cordoba, another employee
charged with cleaning the pools and deck was on the deck and observed a white male
on the back of Tilikum. Orange County Sheriff was contacted immediately and arrived
on the scene while Dukes was still on the whale’s back. The cause of death was
determined by the County Medical Examiner to be drowning and the manner of death
to be an accident.
Evidence:
1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19)
56.
57:22
Jett: So why keep Tilikum
there? This guy . . his proven
track record of killing people .
. .he is clearly a liability to the
institution.
The statement “proven track record of killing people” is false and highly misleading.
Regarding Keltie Byrne, the verdict of the Coroner’s Jury did not find that Tilikum
was the instigator or more responsible than the other whales. Regarding Dukes, there is
no evidence of what happened to Dukes other than the Medical Examiner’s finding
that Dukes accidentally drowned.
57.
58:21
“Family Tree” of breeding by
Tilikum.
There is no scientific or other evidence linking the few incidents of whale aggression at
SeaWorld to a whale’s genetic connection to Tilikum.
58.
59:31
Loro Parque sequence.
This emotional part of the Film falsely implies that SeaWorld was involved in a cover-
up to hide the circumstances surrounding the trainer’s death. SeaWorld leases whales
to Loro Parque for breeding and display purposes, and supplies a trainer to Loro
Parque to provide oversight of the training program for SeaWorld’s whales. SeaWorld
has nothing to do with the management of Loro Parque, and had no involvement with
the notification given to the trainer’s family immediately following the incident.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 26
59.
1:05:37
Loro Parque / Duffus: “For
somebody to get up and say in
a court of law that they had
no knowledge of the linkage
between SeaWorld and this
park in Tenerife is well either,
she doesn’t know when she is
telling the truth or it’s a bold
face lie.”
This statement is false. SeaWorld has never denied that it has a business relationship with
Loro Parque, however there is no formal affiliation between the two parks. Duffus misstates
the trial record; there was no question posed regarding “linkage.” Kelly Clark correctly
testified at the OSHA trial that four of the whales at Loro Parque belonged to SeaWorld. She
also made clear that Sea World had provided trainers to assist Loro Parque. When asked
whether Loro Parque was owned by SeaWorld, Ms. Clark correctly testified “no.” When
asked whether SeaWorld is “affiliated” with SeaWorld, Ms. Flaherty Clark correctly answered
“no.” When asked further questions about the relationship, Ms. Flaherty Clark made it clear
she was not the proper person to answer such questions. She testified: “I actually don’t know
that I’m the right person to answer this question. I can answer anything you want to know
about Sea World of Orlando and how I supervise my supervisors, but . . .I did not have direct
line reports at Loro Parque and have not.”
Moreover, the Film ignores the fact that the SeaWorld trainer on loan to Loro Parque at the
time of this incident, Brian Rokeach, testified extensively at the OSHA hearing concerning this
incident. In addition, Michael Scarpuzzi, the Vice President of Zoological Operations at Sea
World San Diego testified that he oversaw Brian Rokeach, participated in weekly calls with
Loro Parque related to the training process and Sea World’s whales, and actually made regular
visits to Loro Parque. He was informed of the incident by Mr. Rokeach, traveled to Loro
Parque himself, reviewed the video of the incident and actually went to each Sea World park
afterwards to discuss the incident with all Sea World curators. Rather than use this testimony,
the Film features the testimony of Kelly Clark, who, of the three trainers, knew the least about
SeaWorld’s relationship with Loro Parque in order to falsely and misleadingly portray Ms.
Clark as “lying” about the business relationship between SeaWorld and Loro Parque.
Evidence:
1. OSHA Hearing Testimony of Kelly Flaherty Clark Tr. 38-39; 133; 165-67 (See BF Index
#8)
2. OSHA Hearing Testimony of Brian Rokeach Tr. 1175-76; 1181-88; 1202-26 (See BF Index
#23)
3. OSHA Hearing Testimony of Michael Scarpuzzi Tr. 1109-36. (See BF Index #24)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 27
60.
1:00:25,
1:02:31
Suzanne Allie discussing
Loro Parque, its reputation,
facilities, training and the
quality of trainers, the whales,
and SeaWorld’s purported
responsibility for the incident.
Ms. Allie was a videographer with no knowledge or expertise in the training of killer
whales. She has no foundation or education whatsoever to offer her critiques or
conclusions. Ms. Allie, alongside Naomi A. Rose Ph.D. of the Humane Society of the
United States, has made similar claims to United States governmental agencies. All
such claims have been rejected.
61.
1:05:39
A whale comes out onto stage
while Ventre is talking into
the microphone.
This segment is highly misleading because it is placed in the Film immediately before
Jett states that he had been expecting somebody to be killed by Tilikum (1:06:26).
Therefore, the whale coming on stage is depicted as a dangerous moment/act of
aggression imperiling the trainer (Ventre). In fact, this is a scripted part of the show,
and was entirely expected by the trainer (Ventre), who was never in danger.
62.
1:06:54
Berg Interview re Brancheau
incident
Ms. Berg last worked at SeaWorld in 1993, seventeen years before the incident with
Dawn Brancheau. Ms. Berg never worked with Tilikum and only worked with killer
whales for a very brief period. Ms. Berg has no personal knowledge regarding the
incident.
63.
1:07:01
Ventre Interview re
Brancheau incident
Mr. Ventre last worked at SeaWorld in 1995, fifteen years before the incident with
Dawn Brancheau. Mr. Ventre has no personal knowledge regarding the incident.
Although Mr. Ventre purports to critique the incident, Mr. Ventre had at most, three
years’ experience working with killer whales at a very junior level, and never in the
role of trainer-in-charge of any encounter. By comparison, Dawn Brancheau, whom
Ventre purports to critique, had 16 years’ experience, was one of SeaWorld’s most
senior and experienced trainers, attained the title of Supervisor of Animal Training,
and was the senior trainer on Tilikum’s team.
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 28
64.
1:09:13
Jett: “There is no food left . . .
she kept asking him to
perform more behaviors . . .
he was not getting reinforced
for the behaviors that he was
doing correctly; he probably
was frustrated toward the end
. . .
Cast members purport to criticize Dawn Brancheau for her handling of Tilikum. None
of the cast members was present at the incident or had recent first-hand experience
with Tilikum and are engaged in pure speculation. During the OSHA hearing, there
was extensive eye-witness testimony from trainers who were present for the Dine with
Shamu show and Ms. Brancheau’s interactions with Tilikum both during and after the
show. Lynn Schaber, then a Senior Trainer approved to work on Tilikum’s team,
served as a spotter that day. She testified that she believed Tilikum performed correctly
during the Dine with Shamu show. Jan Joseph Topoleski was an additional spotter for
that show and the interaction that followed. He testified, referring to Dawn, “I
remember she said she was really proud of the interaction that we did; nothing really
out of the ordinary”.
Evidence:
OSHA Hearing Testimony of Lynne Schaber Tr. 277; 284-287; 320 (See BF Index
#25)
OSHA Hearing Testimony of Jan Topoleski Tr. 741-745 (See BF Index #35)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 29
65.
1:09:46
Jett: “Tilikum at some point
grabbed a hold of her left
forearm and started to drag
her and eventually did a
barrel roll and pulled her in.”
This is false. Jett had not worked at SeaWorld in 17 years and had limited interaction
with killer whales. His account is pure speculation. At the OSHA hearing, two
witnesses testified to the way in which Tilikum pulled Ms. Brancheau into the water.
The first was SeaWorld trainer Jan Topoleski, who was acting as Ms. Brancheau’s
spotter, who testified that Ms. Brancheau was pulled into the water by her ponytail.
The second was a SeaWorld security guard (Mr. Herrera) who testified that he saw
Tilikum grab Ms. Brancheau’s arm and pull her into the water (Tr. 247). However, on
the date of the incident, Mr. Herrera had told the Orange County detective that the
whale grabbed “either her hair or her arm.” On cross-examination during the OSHA
hearing, Mr. Herrera admitted that he could not see Ms. Brancheau clearly from his
vantage point and that “I’m not sure if he grabbed her arm or her hair, I don’t know.
“(Tr. 249) OSHA concluded from this testimony that the way in which Ms. Brancheau
entered the water “was not established as a fact at the hearing, and it is in dispute.” A
third witness, Valerie Green, reported to the Orange County Sheriff that she saw “a
woman’s ponytail in the whale’s mouth.” Ignoring the express OSHA finding and the
overwhelming evidence that Ms. Brancheau was pulled in by her hair, the Film falsely
states as “fact” that Tilikum grabbed Ms. Brancheau by the arm, for which there is no
competent evidence.
Evidence:
1. Jan JosephTopoleski handwritten statement – February 24, 2010; (See BF Index
#36)
2. Jan Joseph Topoleski: transcript of recorded statement – February 24, 2010; (See
BF Index #37)
3. Jan Joseph Topoleski: OSHA testimony; (See BF Index #35)
4. Fredy Herrera: Witness Statement; (See BF Index #13)
5. Fredy Herrera: OSHA testimony; (See BF Index #12)
6. Valerie Green: Witness Statement; and (See BF Index #19)
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 30
66.
1:11:48
Berg: “At first Sea World
reported that a trainer slipped
and fell into the water and
was drowned. So, that was
the first report.”
This is false. Ms. Berg has not worked at SeaWorld in over 20 years and has no
knowledge of the incident. As demonstrated in the Film immediately preceding this
statement, it was the Orange County Sheriff, not SeaWorld, that reported this
(1:11:38). This account of the incident by the Sheriff was clearly a mistake as it was
directly contradicted by the eyewitness statement given to the Sheriff’s office by
SeaWorld’s employee Jan Topoleski immediately following the incident (see below).
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 31
67.
1:11:55
Jett: “It wasn’t until eye
witness accounts disputed
that, that they had to go back
into their huddle and said wait
a minute, we’ve got to come
up with a new plan. . . The
new plan is that he grabbed
her ponytail. This is a subtle
way of placing the blame on
Dawn’s shoulders.”
This is false. There is no evidence whatsoever that the statements regarding Tilikum
grabbing Ms. Brancheau’s ponytail were concocted by SeaWorld. To the contrary, an
eyewitness to the incident, spotter Jan Topoleski, testified under oath at the OSHA
hearing that Ms. Brancheau was pulled into the water by her ponytail. He stated under
oath that he saw Ms. Brancheau get up on her knees and put her hands to her pony tail:
‘She could not break free. She had both hands on her pony tail being pulled toward the
water’ (Tr. 745-746). Significantly, Mr. Topoleski provided the identical report – that
Tilikum had Ms. Brancheau by the hair -- to the Orange County Sheriff’s office only
minutes after the incident. Mr. Topoleski’s written and audio statements under oath to
the Sheriff were part of the OSHA record. Less than 90 minutes following the
incident, Mr. Topoleski wrote in his Statement to the Sheriff that Tilikum had “bit
down on a piece of her hair. Within the span of 2 seconds she was pulled into the pool,
unable to get her hair released.” Within a few hours of the incident, Mr. Topoleski
gave a taped, oral statement in which he recounted: “All I saw was her grabbing her
hair and trying to pull it out of his mouth.” The Detective asked Mr. Topoleski: “so
you think the hair was the only reason he grabbed her?” Mr. Topoleski responded:
“Yes. Absolutely.” Mr. Topoleski has gone on to a distinguished career in animal
training, currently working with the Federal Bureau of Investigation training bomb-
sniffing dogs. Finally, the Film omits other evidence corroborating Mr. Topoleski’s
testimony, including the Coroner’s Report itself. When read in its entirety, the
Coroner’s Report disproves the Film’s claims that SeaWorld concocted the ponytail
theory and/or that SeaWorld had lied.
Evidence:
1. Jan Joseph Topoleski handwritten statement – February 24, 2010;
2. Jan Joseph Topoleski: transcript of recorded statement – February 24, 2010;
3. Jan Joseph Topoleski: OSHA testimony; and
4. Coroner’s Report.
5. Orange County Sheriff’s report pg. 26 of 43
BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content
10752.00002/208769.1 32
68.
1:14:32
Marino: “All whales in
captivity have a bad life.
They’re all emotionally
destroyed. They’re all
psychologically traumatized.
So, they are ticking time
bombs. It’s not just Tilikum.
The Film portrays Marino’s statement as if it is the opinion of the scientific
community, and as such is false and misleading. There is no scientific evidence to
support such a blanket statement. To the contrary, the Journal of Zoo and Aquarium
Research recently published a paper that discusses the history of this very issue. Killer
whales in captivity have an excellent standard of living and have access to food and
state of the art medical care.
Evidence:
Fay E. Clark: “Marine mammal cognition and captive care: A proposal for cognitive
enrichment in zoos and aquariums” July 24, 2013
69.
Scrolling Statement:
“SeaWorld repeatedly
declined to be interviewed for
this film.”
As is shown in the Film, the filmmakers had complete access to the transcript and other
materials from the OSHA hearing. SeaWorld’s trainers and veterinary staff provided
over 71 hours of recorded testimony under oath before OSHA, yet the Film
misleadingly incorporates only several sentences – each taken out of context – in a
transparent attempt to cast SeaWorld in a false and extremely negative light. In
addition, in the days, weeks and months following Ms. Brancheau’s death, SeaWorld
personnel and executives, including CEO Jim Atchison, COO Dan Brown and Chief
Zoological Officer Brad Andrews gave hundreds of media interviews. Chuck
Tompkins, Head of Animal Training, gave more than 50 interviews, most of which
were via satellite link, and Mr. Atchison gave a press conference, broadcast live via
satellite around the world, at which he took questions
from more than 30 media outlets.
Accordingly, had it been the purpose of the Film to fairly and legitimately present
SeaWorld’s position on the various issues and events portrayed in the Film, there was a
mountain of testimony and interview material from which to choose. However, as was
apparent from the filmmaker’s very first communication with SeaWorld, and as is
obvious from the Film and the comments of the filmmakers, the cast and third parties
such as PETA in the media, the purpose of the Film was not to present a balanced
treatment of the issues, but to pursue an anti-SeaWorld agenda. Under these
circumstances, SeaWorld correctly chose not to participate in the Film.
