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Freezer maker hit for tossing evidence in suit over deaths

November 15, 2021 GMT

GAINESVILLE, Ga. (AP) — A state court judge in Georgia has sanctioned a German company for destroying evidence in a suit over six deaths at a chicken processing plant northeast of Atlanta.

Local news outlets report Gwinnett County State Court Judge Emily Brantley on Friday ordered sanctions against Messer, the company that made the freezer equipment that released a cloud of nitrogen gas in a deadly Jan. 28 incident in Gainesville. She said the conduct of company employees was “shockingly unacceptable and at best is grossly negligent.”

Investigators have said nitrogen overflowed the freezer at Foundation Food Group. Three workers were trying to repair the freezer when nitrogen filled the room, which is at a lower level than adjacent areas, making it unlikely the heavier-than-air gas would disperse. Those three died, as did three supervisors who tried to rescue them. Federal officials have said the deaths were preventable, proposing heavy fines.

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The freezer relied on a metal tube called a bubbler as a safety device to keep the nitrogen from overflowing, court papers have said. But the bubbler was bent, meaning its opening was too high for it to work correctly.

Brantley wrote that a Messer technician found a bent tube on another of its freezers at a food processing factory in Stillmore, Georgia, between Macon and Savannah, after the deadly incident in Gainesville.

Both tubes were held in place by only one bracket, not the two Messer designed for.

The Messer employee was told the tube in Stillmore 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 technician then replaced the tube, added a second bracket and threw the bent tube away,

Messer “denied knowledge of any other bent bubble tubes in its written discovery responses” while producing roughly 28,000 documents, according to the judge’s order. But records show a Messer executive told a lawyer about his requested inspection of the Stillmore plant and the discovery of the bent tube.

Brantley said the tossed tube “may be the single most important piece of evidence” in the lawsuits.

She said she would tell jurors at any trial that Messer destroyed evidence and then lied about it. The judge also said she would bar Messer from presenting expert testimony on bubbler tubes.

“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.

Messer spokesperson Amy Ficon said no one at the company directed the technician to throw out the tube and said employees “did not intend to destroy evidence.”

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“He did not think the slightly bent tube, which was still functional, was of any significance and discarded it,” Ficon wrote in an email.

Ficon said Messer 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.”

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 hearing cases related to Jose DeJesus Elias-Cabrera, 45, of Gainesville; Corey Alan Murphy, 35, of Clermont; and Nelly Perez-Rafael, 28, of Gainesville. Lawyers for the plaintiffs said a motion seeking sanctions will be filed in those cases.