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More sanctions against chemical company in nitrogen leak that killed 6 at Foundation Food Group
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Six people were killed following a liquid nitrogen leak at Foundation Food Group in Gainesville in January 2021, authorities said. Five were found dead and another died at Northeast Georgia Medical Center. - photo by Scott Rogers

Two Gwinnett County judges issued sanctions against a gas company stemming from the January 2021 liquid nitrogen leak at the Foundation Food Group poultry plant in Gainesville, according to court documents.

Six people were killed and more were injured after the Jan. 28 nitrogen leak at the Memorial Park Drive plant, which is now owned by Gold Creek Foods.

The lawsuits have focused on Messer Gas, the company that installed the liquid nitrogen system at the poultry plant.

Multiple parties in the case have pointed to the “bubbler tube,” a component that senses liquid nitrogen levels to prevent overflows. The bubbler tube was damaged when inspected roughly five weeks after the nitrogen leak.

Gwinnett County State Court Judge Emily Brantley previously ordered sanctions against Messer because a second damaged bubbler tube from another facility serviced by Messer was discarded.

The plaintiffs’ attorneys did not find out about this second bubbler tube until roughly six months after the lawsuits were filed.

“Accordingly, the jury is charged that if the second bent bubbler tube was available for testing, the results would have been favorable to (the) plaintiffs and unfavorable to Messer,” according to Brantley’s order.

The court will also exclude Messer from presenting expert testimony related to these bubbler tubes “as well as any evidence related to the condition of both bubbler tubes,” according to the order.

Gwinnett County Judge Veronica Cope issued similar sanctions Nov. 30 in the case of Ximena Sophia Vera, a young girl who lost her parents: Nelly Perez-Rafael, 28, of Gainesville, and Edgar Vera-Garcia, 28, of Gainesville.

Cope ordered that Messer “shall be totally barred from introducing any evidence or argument regarding the bubbler tube at issue here, how the tube became bent and the extent to which the tube did or did not contribute to the liquid nitrogen overflow disaster.”

“Defendants shall be permitted to introduce evidence about the alleged shortcomings of other safety equipment and workplace safety culture at the poultry plant, but are categorically barred from attempting to rebut or refute any evidence offered by plaintiffs specifically as it related to the bubbler tube,” Cope wrote.

Brantley issued additional sanctions Dec. 20 in another injury case involving Jason Adams, Cristian Faur and Ryan Cook, three men who tried to rescue people from the leak.

Brantley wrote that Messer has “withheld hundreds of documents under unsupported claims of attorney-client privilege and work product protection.”

The plaintiffs believed that they had received everything in discovery until a deposition of a former Foundation Food Group employee, who said he had given a recorded statement to Messer’s attorneys under oath.

“Defendants never put plaintiffs on notice of the recorded statements in its answers to plaintiffs’ discovery and further defendants never put plaintiffs on notice of the recorded statements and failed to identify the statement on the privilege log for approximately one year,” according to Brantley’s order.

The privilege log describes documents being withheld as privileged materials.

Brantley ordered that Messer will have until Jan. 23 to fix its privilege log issues.

The judge also awarded $33,000 in attorney’s fees and expenses to the plaintiffs’ counsel.

Messer sent a statement concerning the two sanctions ordered by the judges.

"Although Messer disagrees with the Court orders from Judge Cope and Judge Brantley, we respect the Court and are evaluating how we will respond,” Messer spokeswoman Amy Ficon wrote in an email. “Regardless, Messer will comply with the ruling, just as we have cooperated – and continue to cooperate – fully with all investigators, including (the Occupational Safety and Health Administration) and (the U.S. Chemical Safety and Hazard Investigation Board).  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.”

Ficon said the company has always recommended customers “take numerous specific precautions to control nitrogen hazards and ensure its safe use.”

“Messer welcomes the opportunity at trial to present all evidence, as allowed by the Court, that will help the jury to seek the truth and determine what led to the FFG tragedy,” Ficon said. “Messer regrets that plaintiffs’ Motion for Sanctions distracts from pending cases and the actions Messer has taken to provide information to the lawyers representing the victims of the Foundation Food Group incident.”