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Attorneys claim evidence destroyed in nitrogen leak lawsuit
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This photo from court documents shows a “bubbler tube,” a key component that senses the level of liquid nitrogen to prevent overflows. A damaged tube is alleged to be partially to blame in the Foundation Food Group incident.

Attorneys in the wrongful death lawsuits stemming from the Jan. 28 fatal liquid nitrogen leak are seeking sanctions against a chemical company for allegedly destroying a piece of evidence and providing false information, according to court documents.

The attorneys are representing the estate administrators and surviving families of the six people killed in the Foundation Food Group poultry plant leak. The lawsuits against Messer Gas, the company that installed the liquid nitrogen system at the plant, were filed in Gwinnett County State Court in February.

Weeks after the fatal leak, it was discovered that the “bubbler tube,” a key component that senses the level of liquid nitrogen to prevent overflows, was “damaged and displaced from its original orientation,” according to court documents.

While the specification drawings show that the bubbler tube should have two support brackets, only one was installed in the Foundation Food Group freezer, according to court documents.

According to the motion for sanctions, the plaintiffs did not know until Aug. 23 that Messer “found a second bubbler tube that was also damaged and partially displaced at another customer location in Stillmore, Georgia.”

A Messer employee sent a photo of the damaged bubbler tube along with other texts to his superior, who in turn forwarded these messages to Messer’s defense counsel and chief safety officer in April, according to the sanctions motion.

The employee noted in his April text message to his superior that this other bent bubbler tube was “probably what happened at (Foundation Food Group),” according to the court documents.

“Despite knowing about the other bent bubbler tube, in response to direct discovery requests about other bent bubbler tubes, Messer falsely denied knowledge of any other bent bubbler tubes in its written discovery responses,” according to the sanctions motion. “And despite producing approximately 27,000 pages of documents, Messer did not produce the photographs or text messages about the other bent bubbler tube.”

The plaintiffs also found out that the second bent bubbler tube has since been destroyed.

The motion for sanctions was filed Aug. 30, and a hearing was held Thursday, Oct. 7.

“The court indicated that Messer had been untruthful,” said attorney Matt Cook, who is part of the team representing the plaintiffs.

In the motions sanction, the plaintiffs want the jury to be informed of these details including that “if the second bent bubbler tube was available for testing, the results would have been favorable to plaintiffs and unfavorable to Messer.” They also want to preclude Messer “from any apportionment of fault to non-parties, and order that Messer shall not blame any other party or individual for the claims” in these lawsuits.

The Times reached out to Messer’s attorney, Derek Whitefield, for comment, but that message was not returned. Instead, Messer’s spokeswoman Amy Ficon sent a statement to The Times:

“Messer has cooperated and continues to cooperate in full transparency with all investigators, including OSHA, (the U.S. Chemical Safety and Hazard Investigation Board) and local authorities. 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 did not immediately respond to follow-up questions concerning the more specific allegations in the sanctions motion.

Cook said an order from the judge on the motion will likely come in the following weeks.


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