Sea World lawyers tore into Cal/OSHA Compliance Safety and Health Officer (COSHO) Darcy Murphine in an effort to impeach her testimony in an injury case that it largely won in the end. The employer used inconsistencies between her testimony in deposition and in the hearing.
Sea World said her bias against it was grounds to dismiss a violation of the Injury and Illness Prevention Program standard. The ALJ ultimately upheld the general violation, but he ruled there was indeed bias and Murphine was “obstinate and evasive.”
Here are some examples:
Reviewing Sea World’s IIPP
The central issue in the IIPP violation was whether Murphine issued the citation even after she realized she had an incomplete version. During deposition, she agreed that she had reviewed Sea World’s IIPP “on any number of occasions” in this case and in previous cases.
Here’s her testimony during cross examination during the hearing:
Q: During the inspection you reviewed a part of the IIPP for Sea World Aquatica; true?
A: I reviewed what I was given. True.
Q: Now, this wasn’t the first time that you reviewed Sea World’s written IIPP; isn’t that true?
Q: As we discussed yesterday, you reviewed it in 2006, in 2007 as part of your investigation into the incident between the trainer and the whale at Sea World; true?
Q: And you had reviewed it prior to the 2006 investigation; isn’t that true?
Q: And you reviewed it on any number of occasions subsequent to the 2006 investigation; true?
A: Before or after?
Q: After. Subsequent.
A: After, once. Once – one other time insofar as I recall.
The company also claims that it was able to impeach her testimony about whether certain boxes in Sea World’s written IIPP were required to be filled out.
Q: Isn’t it true that … nowhere in the statute does it say that these boxes even have to be there, much less filled out. Isn’t that true?
A: No, that’s not true.
In the deposition, Murphine agreed that the statute doesn’t say that the boxes in question have to be filled out or even be there.
The firm also says she gave different answers from deposition to hearing when asked if the burn injury in question was the first of its kind she had investigated. At the deposition, she said “correct” when asked, “In your entire career, you’ve never seen this kind of accident, right? Her hearing testimony was different:
Q: And in your entire career, you’ve never seen this kind of accident, right?
Q: Right? You’ve never seen this, correct?
Sea World also says she had different answers on the question of whether the injured worker was inattentive at the time of the incident. At deposition, she said “yes” when asked if she believed that at the time of the incident, the employee was “actually looking away, perhaps at her colleague?”
But at the hearing, when asked the same question, she replied, “possibly.”
Murphine also testified under oath that she disagreed that her tweets were aimed at Sea World, and that there were negative toward the company. She also denied that she was re-tweeting other activists’ tweets, but was forced to concede later that she had, in fact, re-tweeted others.
Examples of Murphine’s tweets are below.