ATLANTA – A Gwinnett County judge sanctioned a company that was sued for deaths at a Gainesville poultry factory for destroying critical evidence.
The victims’ families sued Messer Gas, which makes industrial freezers for meat packaging, alleging that the company could have prevented the January 28 disaster with one of its machines. Nitrogen – which is freezing and can displace oxygen from the surrounding air – has overflowed from one of the units, court records show.
A Messer employee threw away a machine part that should have been kept for test purposes, said the judge and described the destroyed evidence as critical for the plaintiff’s case. State County Judge Emily Brantley also blamed Messer for hiding the incident, saying the company’s behavior threatened the victims ‘families’ ability to find fair ways.
“It would be a disservice to these families to believe that their chance of a fair trial in these cases has been compromised by the defendant Messer’s abuse of the preliminary investigation,” Brantley wrote in her order on Friday. “The behavior of the accused Messer, which was demonstrated during the investigation, is shockingly unacceptable and at best grossly negligent.”
The sanctions include the judge’s intention to explain to the jury at any trial that Messer destroyed evidence of manufacturing errors that would have harmed Messer’s case and that Messer subsequently lied.
A spokeswoman for Messer said the company had not deliberately destroyed evidence and was “committed to the common goal of finding the causes of this incident and doing its part to ensure that such an incident does not repeat itself”.
One of the reasons for the tragedy at the Foundation Food Group factory was a bent pipe, according to court records. It was supposed to monitor the level of liquid nitrogen in the freezer and prevent it from overflowing, but the bend meant it was sitting too high to function properly. In the days following the Gainesville leak, Messer found a bent pipe on one of his machines at another factory in Stillmore, rural Georgia. The pipes of both systems had one problem in common: They were fastened with only one bracket, in contrast to the two that Messer provided for.
The Messer employee who found the bent pipe in Stillmore was told, according to a text message that the Messer employee sent his supervisor, that it was often bent during maintenance work.
“That probably happened at the FFG,” wrote the Messer employee, referring to the Foundation Food Group in Gainesville.
The judge said the thrown tube was “possibly the most important piece of evidence” in the court case.
After the company’s technician found the pipe in Stillmore, the Messer operator replaced the pipe, added a second bracket, and discarded the bent pipe. Messer then failed to inform plaintiffs that the second tube was found, which could have been tested and helped answer the events in Gainesville – and who is to blame.
Messer spokeswoman Amy Ficon said the technician who found the tube thought it was irrelevant and discarded it.
“Nobody at Messer instructed or instructed the technician to throw away the (second) bubbler tube,” added Ficon.
The judge said the technician’s manager should have told him to keep it.
Messer has often blamed the Foundation Food Group for the fact that there are no acceptable safety plans and protocols and that the manufacturer’s recommendations are not followed. The Foundation Food Group blames Messer for the disaster and says Messer failed to solve problems with the freezer.
The US agency for occupational health and safety has determined that the Foundation Food Group and Messer could have prevented the disaster through safety measures. OSHA hit them – as well as two partner companies – with a total of 59 violations and fines of nearly $ 1 million. The Gainesville facility faced the most violations and fines. Messer reached an agreement with OSHA.
Foundation Food Groups is not named in the lawsuits. Georgian law makes it difficult for survivors to sue for workplace deaths.
Matt Cook, attorney for the relatives of victims Victor Vellez and Corey Murphy, said the judge’s sanctions “level the playing field”. in the knife cases.
“It has imposed a very harsh sanction, but what to do if someone does not obey the rules,” said Cook on Monday morning.
The sanctions apply to lawsuits against knives by survivors of the victims Saulo Suarez-Bernal, 41, of Dawsonville; Victor Vellez, 38, of Gainesville; and Edgar Vera-Garcia, 28, of Gainesville. Another judge is dealing with the cases of 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 sanction motion would be filed shortly in the other cases.
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