SeaWorld Vs OSHA, trial on Nov 12, 2013 whether trainers can be in water with killer whales

[Beringia]

CNN) -- The stakes in a court hearing Tuesday were as big as the star performers at the heart of the matter.

SeaWorld appealed to a federal three-judge panel Tuesday, asking it to overturn Occupational Safety and Health Administration safety citations and a ban restricting how humans interact with killer whales during performances.

http://www.cnn.com/2013/11/12/us/seaworld-court-challenge/



(I excerpted a portion of the SeaWorld brief, the portion where they describe how David Duffus, the expert witness on killer whales, was not a reliable expert on captive killer whales.)

David Duffus is the whale researcher at University of Victoria, Canada, you can see him in the Blackfish trailer. He says "It didn't just happen. It is not a singular event. You have to go back to understand this."

at 0:45

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C. The Administrative Law Judge Erred By Crediting OSHA’s Expert Witness [/font size]

The Administrative Law Judge’s decision was based on unreliable expert testimony. This Court will overturn an Administrative Law Judge’s decision to credit expert testimony if it is “patently unsupportable.” Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077, 1082 (D.C. Cir. 2007). Here, Dr. David A. Duffus was decidedly unqualified to testify about the level of “unpredictability” remaining after the implementation of SeaWorld’s precautions, or—more importantly—the extent of any hazard presented by such unpredictability, and the Administrative Law Judge should have exercised his “gatekeeper” role to exclude Duffus’s testimony.

Although initially questioning the “weight” he would afford to Dr. Duffus’s testimony, JA 1452-53, the Administrative Law Judge cautiously “qualified Dr. Duffus as an expert in determining the predictability of behavior in killer whales.” Id. at 18.9 As demonstrated at trial, Dr. Duffus lacks the expertise to make any such determination.10 Dr. Duffus observes wild whales to predict their seasonal movements and to understand whether whale-watching “disturb[s]” them. Id. at 1432-35. He has not conducted “any studies” on captive whales, and “do[es not] know” whether “being in captivity alter[s] a [killer whale’s] behavior,”. He also has no “experience” training whales. To the contrary, he actively avoids close interactions, testifying that he “tr[ies] to maintain” a distance of “100 meters” during his work, and never comes within “five meters” of a whale.

Having studied operant conditioning “in a tangential way” at best—namely, by observing that whales “may become used to [boats]”—Dr. Duffus “do[es not] challenge that [whales] can be trained.” JA 1442, 1445. He offered the following concessions at trial:

• Operant conditioning is a “scientific method,”;
• “Operant conditioning does work in many, many cases,” ;
• SeaWorld’s “training procedures do provide predictable outcomes,”;
• SeaWorld has “many, many successful encounters” with whales, and “can diminish [their] day-to-day predatory activity,”; and
• “[T]he frequency of contact with the killer whale [will] reduce the risk to the trainers because the predictability [of whales’ behavior] rises with more contact,”.

Thus, rather than impugn the effectiveness of SeaWorld’s precautions, Dr. Duffus simply asserted that no precautions could eliminate the “element of unpredictability” in whales’ behavior. He reached this conclusion based on a visit to SeaWorld—during which he observed two shows—and a review of incident reports, which suggested to him that trained whales exhibit the “same [aggressive] behaviors” that he has seen in the wild, JA 1447, and “continually befuddl[e]” him due to the “uncertainty” of their behavior.

Importantly, although Dr. Duffus testified that he believed the “uncertainty element” of whale behavior “create[d] a hazard,” JA 1474, he did not purport to specify the level of this “uncertainty” or the extent of the alleged, resultant “hazard.” To the contrary, Duffus admitted that he “do[es] not know” the “level of certainty with which [whales] can be trained.” He likewise “do[es] not know” the “likelihood of [a captive] killer whale attempting to attack a person,” or whether a trained whale that is “satiated” with food (as SeaWorld’s whales invariably are) would still engage in “aggressive behavior.” In fact, he expressed “a high degree of uncertainty” as to whether the “risks” of working with trained killer whales even “apply” to “other whales” besides Tilikum. (emphasis added).

The most definitive statement Dr. Duffus could manage was that SeaWorld’s operant training program “d[id] not work all the time” and could not “absolutely protect every trainer in every situation.” JA 1444-45, 1490. Nevertheless, the Administrative Law Judge relied on this testimony to find that SeaWorld’s precautions had not “reduced” the hazard of close contact “to a significant degree” and were therefore “inadequate.”

This reliance on Duffus’s testimony was erroneous. Expert testimony is admissible only if “the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the expert has reliably applied th[ose] principles and methods to the facts of the case.” Fed. R. Evid. 702. Judges must ensure that an expert’s testimony “both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). It was undisputed below that the same standard was to be applied by the Administrative Law Judge here. JA 1450.

Daubert suggests four factors to evaluate the reliability of an expert’s methods:

(1) whether the theory or technique can be and has been tested;
(2) whether [it] has been subjected to peer review and publication;
(3) USCA Case #12-1375 Document #1462144 Filed: 10/21/2013 Page 56 of 73 47 [its] known or potential rate of error; and
(4) whether [it] finds general acceptance in the relevant scientific community. United States v. Law, 528 F.3d 888, 912 (D.C. Cir. 2008) (per curiam).

Dr. Duffus’s testimony meets none of these criteria.

Duffus’s research on wild whales has not involved any analysis of captivity and training, which are specifically at issue in this case. JA 1448, 1439-42. Standing alone, his review of incident reports and only two shows could not provide “sufficient facts” for his sweeping conclusion that the “uncertainty element” of whale behavior still “creates a hazard” after SeaWorld’s application of admittedly
effective safety precautions.

In reaching his conclusion, Dr. Duffus did not define “reliable principles” or “appl[y]” them “reliably . . . to the facts of th[is] case.” Fed. R. Evid. 702. His only apparent “principle” was that trained whales exhibited the “same behaviors” as wild whales, although admittedly he had no experience observing or training captive whales. JA 1447, 1456. And his application of this “principle” yielded only a generic observation that SeaWorld’s precautions “d[id] not work all the time” or “absolutely protect every trainer in every situation.” Id. at 1444-45, 1490. This does not suggest any “reliable” or reproducible means of addressing the alleged “hazard”—as noted, Dr. Duffus cannot even say with confidence that his conclusions extend to interactions not involving the single whale (Tilikum) whose actions gave rise to the Secretary’s citations.

Dr. Duffus does not purport to have tested his “theory” regarding the “uncertainty element” of trained whales’ behavior, and his conceded lack of knowledge regarding the effects of training suggests he would be unable to do so. Cf. Law, 528 F.3d at 913. Moreover, although it is impossible to speak of a “rate of error” because there are no “standards” governing the application of Duffus’s “theory,” his conceded uncertainty about “level[s] of risk” would seem to acknowledge the substantial likelihood of error.

Finally, far from gaining “general acceptance,” Dr. Duffus’s theory is directly contrary to that of the “relevant scientific community.” Experts with more than Duffus’s “tangential” knowledge of operant conditioning uniformly believe that it increases predictability to a safe and “readily accepted” level. JA 1635-36. Jeffrey Andrews, whom the Administrative Law Judge qualified “as an expert in operant conditioning”, testified that operant conditioning “very effectively modifies the frequency of
[whales’] behavior” to create “very predictable results.”

In short, Dr. Duffus’s opinions have no “valid connection” to a reliable “factual basis.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999). They provide no support for the Administrative Law Judge’s conclusion that SeaWorld’s precautions were “inadequate,” and they should have been excluded.

full PDF
http://www.clickorlando.com/blob/view/-/22910574/data/1/-/i6u5im/-/1-SeaWorld-brief-pdf.pdf

[OregonBlue]

1. I watched CNN's Blackfish and if their reporting was accurate, these are very dangerous animals who

should not be held in captivity. Not only is it dangerous for the trainers, it's hideous for the Orcas and shortens their livespans by 2/3.

[Beringia]

2. Exactly

Here is a paper on it by Naomi Rose, mammal expert with the Humane Society


http://www.hsi.org/assets/pdfs/orca_white_paper.pdf

[Beringia]

3. Update - SeaWorld Fights to Get Trainers Back in Water With Killer Whales

A panel of judges will now decide the future of 'waterwork' at the popular amusement park.

November 13, 2013
David Kirby

FULL ARTICLE
http://www.takepart.com/article/2013/11/13/seaworld-trial-osha-trainers-in-tanks-with-orcas-tilikum-blackfish-dawn-brancheau



EXCERPTS


The three-year legal battle between SeaWorld and the U.S. Department of Labor took a dramatic, high-stakes turn Tuesday when attorneys representing the company tried to convince a federal appeals court to overturn a safety violation issued by the Occupational Safety and Health Administration and a ban limiting how the park’s trainers interact with killer whales during performances.

SeaWorld’s main arguments Tuesday pertained to legal limits on OSHA undermining the “intrinsic premise” of any company’s business model, and to the expert witness used by the government at trial.

OSHA issued its violation under what is called the “general duty clause” of the Occupational Safety and Health Act, which is typically used in citing industries without established safety standards (which includes wild animal parks). Such employers have a general obligation to keep their workplaces as free from safety hazards as possible. SeaWorld attorney Eugene Scalia argued that the company “believed its protocols controlled the hazard” and thus “satisfied the general duty clause.”

Scalia also argued that physical contact with killer whales is as critical to his client’s core business as blocking and tackling are to professional football. By banning trainer-to-orca contact at SeaWorld, he argued, the government was irreparably changing and undermining the “premise of its business model.” OSHA’s restrictions were akin to telling "the NFL that close contact would have to end,” Scalia said, adding that the NFL saw more player injuries on any given Sunday than had occurred at SeaWorld in the past 22 years.

SeaWorld’s other target was OSHA expert witness Dr. David Duffus of the University of Victoria, in Victoria, British Columbia. Duffus headed the inquiry into the 1991 death of Keltie Byrne, a trainer at the now-defunct SeaLand of the Pacific. As detailed in the new CNN documentary Blackfish, three orcas, including Tilikum, are alleged to have drowned Byrne after she slipped and fell into their tank.

Duffus has spent years studying whales in the ocean but has little experience with those in captivity, making him “manifestly unqualified,” Scalia charged. “How can he comment on marine park hazards or abatements?” Scalia said of Duffus. “It’s like a birdwatcher telling a zoo how to run its aviary program.” Scalia reminded the three-judge panel that expertise “is central” in general-duty cases, some of which were reversed by this same court because expert witnesses “lacked the proper expertise.”

Judge Judith Rogers didn’t seem to buy the argument. Scalia, she suggested, was essentially arguing that the only acceptable expert “would be a SeaWorld employee.” In general, she and Chief Judge Merrick Garland seemed less receptive to Scalia’s arguments than the third judge, Bret Cavanaugh.

“OSHA isn’t asking SeaWorld to prevent all activities. These are feasible reductions that we know SeaWorld can do because they're doing them now,” she said. “The acts that SeaWorld claims are inherent to their business model are, in fact, not inherent to their business model.”

Tryon also defended expert witness Duffus, arguing that his expertise and testimony were relevant because he discussed how predatory behaviors in wild orcas can also be seen in captive ones. Because of this, no amount of animal training could make this workplace safe. “SeaWorld training does not take the predatory instinct out of these animals," she said.

A decision could take months. SeaWorld has hinted it might go to the Supreme Court if defeated, citing constitutional “vagueness” of the general duty clause. If SeaWorld wins, it can return to business as usual, including, presumably, waterwork.

The company says it has “no plans” to put trainers back in the water during shows. But as everyone knows, plans can change.