The Atlanta Journal-Constitution
Judge: Company being sued threw away evidence
Victims’ families allege Messer Gas could have prevented the Jan. 28 disaster at Gainesville plant.
A judge on Thursday said a company being sued over deaths in a 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 in Gainesville 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 leak 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. 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.
But in Gainesville and Stillmore, the Messer machines had one bracket, Cook said, making this a 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.”
Whitefield said he and others have been working long days on the Gainesville case without time off. 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 didn’t immediately respond to questions about whether investigators considered manufacturer error in the probe into the Gainesville tragedy. OSHA has already 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.
Foundation Food Group isn’t named in the families’ lawsuits. Georgia law makes it difficult for survivors to sue over workplace deaths.
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.
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.”