“It would be a disservice to our system of justice for these families to believe that their opportunity for a fair trial in these cases was compromised by Defendant Messer’s abuse of the discovery process,” Brantley wrote in her Friday order. “The conduct of Defendant Messer demonstrated throughout the discovery process is shockingly unacceptable and at best is grossly negligent.”
The sanctions include the judge’s intention to explain to the jury at any eventual trials that Messer destroyed evidence of manufacturer error that would’ve have hurt Messer’s case and that Messer then lied about it.
A spokeswoman for Messer said the company had not intentionally destroyed evidence and remains “committed to the shared goal of finding the causes of this incident and to doing its part to prevent such an incident from happening again.”
One of the causes of the tragedy at Foundation Food Group’s factory was, court records suggest, a bent tube. It was supposed to monitor the level of liquid nitrogen in the freezer unit and prevent overflow, but the bend meant it sat too high to work properly. In the days after the Gainesville leak, Messer found a bent tube on one of its machines at another factory in Stillmore, in rural Georgia. The tubes at both facilities shared a problem: they were secured by just one bracket, as opposed to the two that Messer’s design called for.
The Messer employee who found the bent tube at in Stillmore was told that it was often bent during maintenance, according to a text message the Messer worker sent his supervisor.
“Probably what happened at FFG,” the Messer worker wrote, referring to Foundation Food Group in Gainesville.
The judge said the tossed tube “may be the single most important piece of evidence” in the lawsuits.
After the company’s technician found the tube in Stillmore, the Messer employee replaced the tube, added a second bracket and threw the bent tube away. Messer then failed to tell the plaintiffs about finding the second tube, which could’ve been tested and helped answer what happened in Gainesville — and who’s at fault.
The Messer spokeswoman, Amy Ficon, said the technician who found the tube didn’t think it “was of any significance and discarded it.”
“No one at Messer directed or told the technician to throw out the (second) bubbler tube,” Ficon added.
The judge has said the technician’s supervisor should’ve told him to preserve it.
Messer has frequently put the blame on Foundation Food Group for failing to have acceptable safety plans and protocols in place, as well as not following the manufacturer’s recommendations. Foundation Food Group has blamed Messer for the disaster, saying Messer failed to address issues with the freezer.
The U.S. Occupational Safety and Health Administration has found that Foundation Food Group and Messer could have prevented the disaster by putting safety measures in place. OSHA hit them — as well as two partner companies — with a total of 59 violations and nearly $1 million in fines. The Gainesville plant faced the majority of violations and fines. Messer settled with OSHA.
Foundation Food Groups isn’t named in the lawsuits against. Georgia law makes it difficult for survivors to sue over workplace deaths.
Matt Cook, attorney for relatives of victims Victor Vellez and Corey Murphy, said the judge’s sanctions “level the playing field.” in the Messer cases.
“She imposed a very harsh sanction, but what do you do if somebody doesn’t play by the rules,” Cook said Monday morning.
The sanctions apply to suits brought against Messer by survivors of victims Saulo Suarez-Bernal, 41, of Dawsonville; Victor Vellez, 38, of Gainesville; and Edgar Vera-Garcia, 28, of Gainesville. Another judge is over the cases related to Jose DeJesus Elias-Cabrera, 45, of Gainesville; Corey Alan Murphy, 35, of Clermont; and Nelly Perez-Rafael, 28, of Gainesville. Cook, who represents families before both judges, said a similar motion for sanctions will be filed in the other cases soon.