Judge: Evidence thrown away in Gainesville nitrogen deaths lawsuits

Flowers, candles, notes and stuffed animals are displayed at a makeshift vigil outside of the Foundation Food Group in Gainesville, Georgia, on February 2, 2021. Six people were killed while working at the plant on January 28 when a liquid nitrogen line ruptured. Five people died at the scene, and 12 others were taken to the emergency room at Northeast Georgia Medical Center, officials said. One of those patients died at the hospital. (Alyssa Pointer / Alyssa.Pointer@ajc.com)

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

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Flowers, candles, notes and stuffed animals are displayed at a makeshift vigil outside of the Foundation Food Group in Gainesville, Georgia, on February 2, 2021. Six people were killed while working at the plant on January 28 when a liquid nitrogen line ruptured. Five people died at the scene, and 12 others were taken to the emergency room at Northeast Georgia Medical Center, officials said. One of those patients died at the hospital. (Alyssa Pointer / Alyssa.Pointer@ajc.com)

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

A judge on Thursday said a company being sued over deaths in a Gainesville, Georgia, poultry plant had thrown away potentially critical evidence for the lawsuits.

Victims’ families have sued Messer Gas, which manufactures industrial freezer units for meatpacking, alleging the company could have prevented the Jan. 28 disaster involving one of its machines. Nitrogen — which is frigid and can displace oxygen from the air around it — overflowed from one of the units, court records show. Six workers were apparently trying to stop or investigate the leaking machine before they died of asphyxiation.

One of the causes of the disaster at Foundation Food Group’s factory, court documents suggest, was a bent tube. It was supposed to monitor the level of liquid nitrogen in the freezer unit, but the bend meant it sat too high to work properly.

During Thursday’s hearing, attorneys for the victims’ families asked the judge to sanction Messer over its alleged concealment of evidence that could’ve hurt them in the lawsuits. Messer attorneys denied a cover-up. A decision is expected in the coming days and weeks.

The missing evidence was something a Messer worker had found: a similarly bent tube on a unit at Crider Foods in Stillmore, Georgia. The discovery was in the weeks after the Gainesville deaths. The tube had been designed to have two brackets protecting it from bends, said Matt Cook, attorney for relatives of victims Victor Vellez and Corey Murphy.

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Lawyers for relatives killed in a nitrogen leak disaster this year in Gainesville say the company that manufactured an industrial flash-freezer left off a critical part when making the machine that ended up in use at Foundation Food Group. A tube intended to monitor the level of nitrogen in the unit had been bent somehow and didn't sit low enough to work properly. At left, a tube is shown in what the families' attorneys says is its proper formation, with two brackets holding it in place. On the right, is the tube on the Gainesville machine, which had one bracket. (Photo from court filing by plaintiffs' attorney)

Lawyers for relatives killed in a nitrogen leak disaster this year in Gainesville say the company that manufactured an industrial flash-freezer left off a critical part when making the machine that ended up in use at Foundation Food Group. A tube intended to monitor the level of nitrogen in the unit had been bent somehow and didn't sit low enough to work properly. At left, a tube is shown in what the families' attorneys says is its proper formation, with two brackets holding it in place. On the right, is the tube on the Gainesville machine, which had one bracket. (Photo from court filing by plaintiffs' attorney)

Combined ShapeCaption
Lawyers for relatives killed in a nitrogen leak disaster this year in Gainesville say the company that manufactured an industrial flash-freezer left off a critical part when making the machine that ended up in use at Foundation Food Group. A tube intended to monitor the level of nitrogen in the unit had been bent somehow and didn't sit low enough to work properly. At left, a tube is shown in what the families' attorneys says is its proper formation, with two brackets holding it in place. On the right, is the tube on the Gainesville machine, which had one bracket. (Photo from court filing by plaintiffs' attorney)

But in Gainesville and Stillmore, the Messer machines had one bracket, Cook said, making this a classic case of manufacturer error. In such cases, evidence of similar errors is prized because it allows for testing to find patterns of malfunctions and helps plaintiffs prove their case.

“They wanted to deprive women and children and victims a fair trial,” Cook said.

Attorneys for Messer denied that accusation and described the situation as an unfortunate series of miscommunications in the midst of an intense investigation involving state, local and federal agencies and various lawyers.

“Neither myself nor my client has attempted to hide evidence,” said Messer attorney Derek Whitefield. “We’ve made mistakes.”

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A tube meant to monitor the nitrogen level in Messer Gas' flash freezer is bent at Crider Foods in Stillmore, Georgia. The tube was bent similarly to one at a plant in Gainesville, Georgia, where it may have contributed to a deadly leak. (Photo courtesy of plaintiffs' attorney filing)

A tube meant to monitor the nitrogen level in Messer Gas' flash freezer is bent at Crider Foods in Stillmore, Georgia. The tube was bent similarly to one at a plant in Gainesville, Georgia, where it may have contributed to a deadly leak. (Photo courtesy of plaintiffs' attorney filing)

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A tube meant to monitor the nitrogen level in Messer Gas' flash freezer is bent at Crider Foods in Stillmore, Georgia. The tube was bent similarly to one at a plant in Gainesville, Georgia, where it may have contributed to a deadly leak. (Photo courtesy of plaintiffs' attorney filing)

Whitefield said he and others have been working long days without time off on the Gainesville case. Whitefield said the slog contributed to what the judge called potentially misleading statements Whitefield had made in court records related to the issue at the other plant.

The judge said her problem was with Messer, not their lawyer, because the company should have seen to it that the tube was saved.

“It makes your client look like they’re not very honest and forthright,” Gwinnett County State Court Judge Emily Brantley told the Messer attorney. “(The supervisor) intentionally took no action to preserve it. He had a duty to tell him, ‘Don’t destroy that. Preserve it.’”

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. Asked if investigators considered manufacturer error, an OSHA spokeswoman said she couldn’t comment because OSHA’s findings at the plant are being contested by some of the companies. Messer settled with OSHA.

Foundation Food Group isn’t named in the families’ lawsuits. Georgia law makes it difficult for survivors to sue over workplace deaths.

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Five of the six Gainesville, Georgia, poultry plant victims. (From left) Jose DeJesus Elias-Cabrera, Nelly Gisel Perez Rafael, Saulo Suarez-Bernal, Corey Alan Murphy and Edgar Uriel Vera-Garcia. (Photos from Memorial Park Funeral Homes, except for Corey Alan Murphy from Norris-New Funeral Home, and Jose DeJesus Elias-Cabrera from family)

Five of the six Gainesville, Georgia, poultry plant victims. (From left) Jose DeJesus Elias-Cabrera, Nelly Gisel Perez Rafael, Saulo Suarez-Bernal, Corey Alan Murphy and Edgar Uriel Vera-Garcia. (Photos from Memorial Park Funeral Homes, except for Corey Alan Murphy from Norris-New Funeral Home, and Jose DeJesus Elias-Cabrera from family)

Combined ShapeCaption
Five of the six Gainesville, Georgia, poultry plant victims. (From left) Jose DeJesus Elias-Cabrera, Nelly Gisel Perez Rafael, Saulo Suarez-Bernal, Corey Alan Murphy and Edgar Uriel Vera-Garcia. (Photos from Memorial Park Funeral Homes, except for Corey Alan Murphy from Norris-New Funeral Home, and Jose DeJesus Elias-Cabrera from family)

After finding the bent tube in Stillmore, the Messer worker photographed it, told his supervisor and then threw the bent tube away. A new tube — along with a second bracket — was added.

Messer didn’t disclose the finding of the bent tube or its destruction for weeks until it came out in depositions.

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Gainesville, Georgia, poultry plant victim Victor Vellez. (Photo from GoFundMe)

Credit: GoFundMe

Gainesville, Georgia, poultry plant victim Victor Vellez. (Photo from GoFundMe)

Credit: GoFundMe

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Gainesville, Georgia, poultry plant victim Victor Vellez. (Photo from GoFundMe)

Credit: GoFundMe

Credit: GoFundMe

The supervisor had said in his deposition under oath that he told Whitefield the tube had been thrown away, though Whitefield said that wasn’t accurate.

The Messer employee who had found the bent tube at the other facility asked around to see what caused the bend. A worker told him that the tube 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 supervisor was a longtime Messer employee whose credentials made the judge incredulous that he’d forgotten to see to it that the bent tube not be thrown away.

One theory Messer has floated for how the Gainesville tube was bent is that someone intentionally sabotaged the machine with a screwdriver that was found nearby.

Cook and other Gainesville plaintiffs’ attorneys scoffed at Messer for the sabotage theory, leading Whitefield to stress that it was only one possibility and that it’s still too early to make conclusions about what happened.

“We still don’t know how the bubbler tube got bent,” Whitefield said. “It could’ve been bent by sanitation. It could’ve been sabotage. It doesn’t matter to Messer.”

In a statement after the hearing, Messer reaffirmed its commitment to the investigations: “Messer is committed to the shared goal of finding the causes of this incident and doing its part to prevent such an incident from ever happening again.”