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Settlements reached in all but one lawsuit involving nitrogen leak that killed 6
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Employees gather outside of the Foundation Food Group site at Memorial Drive and Centennial Drive in Gainesville following a liquid nitrogen leak that killed six people. School buses were brought in to take employees away from the site. - photo by Scott Rogers

All but one lawsuit stemming from the January 2021 Foundation Food Group liquid nitrogen leak has been settled, according to court documents and attorneys on the case.

Six people were killed and roughly a dozen were hospitalized after the Jan. 28, 2021 leak at the poultry processing plant on Memorial Park Drive. 

Gold Creek Foods acquired the site from Foundation Food Group in October 2021. 

Gold Creek’s Director of Human Resources Rachel Moynihan said in a statement that the company offered employment to all eligible Foundation Food Group employees, with 90% coming onboard.

Since the acquisition, Gold Creek said it has invested more than $40 million at the facility.

“The investment includes upgrades in safety systems, as well as equipment and technology that makes the facility more efficient and lessens its environmental impact,” Gold Creek President Michael Sheets said in a statement.

Since the fatal leak, the surviving workers and their families filed lawsuits in Gwinnett County State Court against Messer Gas, the company that installed the liquid nitrogen system at the plant before the leak.

Attorney Matt Cook said all of the cases have settled except the case of Ximena Vera, a young child who lost both of her parents, Nelly Perez-Rafael, 28, and Edgar Vera-Garcia, 28, both of Gainesville.

Neither side has disclosed the terms of the settlements publicly.

Through the lawsuits, attorneys discovered that the bubbler tube, a device intended to detect when the liquid nitrogen might overflow, was bent. They also discovered that a similar system in another Georgia plant had the same problem, though it was later discarded.

Judges previously issued sanctions against the defendants in the cases that have settled regarding the discarded evidence.

Cook filed motions Feb. 23 to compel production of documents “related to crimes and frauds” as well as to revoke Messer’s attorneys ability to represent them in the case.

The motion asked the court to order the defendants to produce all communications and documents related to the discarded bubbler tube for the judge’s review.

A court can grant an attorney who is not licensed to the bar in that area to be admitted under what is known as pro hac vice.

Cook wrote in his motion that Messer’s attorney “have been dishonest with this court and (the) plaintiffs.”

“Each of them violated his duty to avoid concealing documents from plaintiffs, and each was complicit in the knowing misrepresentation made before this court,” according to the motion. “It is likewise clear that the dishonest representations were made with the deliberate intention of concealing their prior misconduct and that these gentlemen have no regard for their duty of candor to the court or plaintiffs.”

The morning after the motion was filed, Messer’s attorneys filed notice to withdraw as counsel.

Cook filed an objection, claiming it is “nothing but an attempt to escape the consequences of their actions.”

“The notice of withdrawal should not be permitted until the court has applied appropriate discipline for the misconduct of those lawyers and memorialized the discipline in a written order,” according to the objection.

When asked for comment regarding these motions, Messer spokeswoman Amy Ficon said the company has cooperated and complied with the court’s orders.

“The timing of the latest motion, and its release to media from Mr. Cook’s office, raises some concern, since this issue has already been considered and ruled upon by the Court,” Ficon said in a statement. “In fact, the subject matter is not new and relates to events that allegedly occurred nearly 2 years ago, in 2021. These allegations have been briefed extensively and were known to counsel before the case involving Ximena was settled at mediation more than 15 months ago.  Given that a separate motion to enforce the settlement is pending and is under consideration by the Court, we do not feel it is appropriate to comment beyond what we have already said.”

Ficon said Messer negotiated and settled the case with a mediator before Cook was hired in the case.

Cook said the hearing was set for Friday, March 24.