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2 lawsuits in Foundation tragedy put blame on company servicing liquid nitrogen system
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A tank marked Liquid Nitrogen sits outside Foundation Food Group along Memorial Park Drive. Hall County Fire Services and Gainesville Fire were called out to the plant around 10:12 a.m. on Jan. 28, 2021, to a report of burns at the plant where they discovered a large number of employees who had evacuated the building. - photo by Scott Rogers

Two wrongful death lawsuits were filed this week against a chemical gas company, alleging the business did not properly inspect or repair the liquid nitrogen system that led to the deadly Jan. 28 Foundation Food Group leak, according to court documents.

Both lawsuits were filed in Gwinnett County State Court for Colleen Murphy, the wife of Corey Murphy, and Michael Smith, the administrator of Saulo Suarez-Bernal’s estate.

Murphy, 35, of Clermont, and Suarez-Bernal, 40, of Gainesville, were two of six workers killed following the Jan. 28 liquid nitrogen leak at the Gainesville poultry processing plant. Murphy was a production superintendent at the plant who had worked there for roughly two years, according to the family’s attorneys.

The lawsuit claims the plaintiff will bring these same claims on behalf of Corey Murphy’s estate when it is established.

“This is one of the worst tragedies that Gainesville has probably seen in a long time, particularly in the poultry industry,” Gainesville attorney Ronny Hulsey told The Times. “By all accounts, Mr. Murphy was a model father and husband.”

Hulsey and fellow attorney Matt Cook said Murphy served four years in the military with time in both Iraq and Afghanistan. He had two daughters, a 5-year-old and a 6-month-old.

Suarez-Bernal was a worker on the assembly line, who was not married and did not have children. He is survived by a sister and brother.

The defendants named in the case are Messer Gas LLC, various other Messer entities and a Braselton man who reportedly attempted to service the liquid nitrogen system days before the deadly leak. The lawsuits were filed in Gwinnett County because the employee lives in Gwinnett County, and Messer North America has a registered agent in Gwinnett as well.

According to the lawsuit, Messer installed the processing plant’s liquid nitrogen system in or around December.

“Since the initial installation of the liquid nitrogen system, Messer had received complaints about the system at the subject location,” according to the lawsuit. “Despite such complaints, Messer failed to properly inspect, test, repair and/or shut the system down until it could be properly repaired.”

The Times reached out to Messer, which expressed condolences for the six dead and the 12 total who were hospitalized following the leak.

“Messer has offered its support to the Foundation Food Group team, is cooperating fully with the investigating authorities examining this tragedy and is conducting its own investigation,” Messer North America’s head of external communications Amy Ficon wrote in an email. “The investigations are ongoing. We are aware of the wrongful death lawsuit that has been filed against Messer. We are reviewing the lawsuit and have no comment at this time.”

Either a day or two days before the leak, a Messer employee tried to service the line, according to the lawsuit.

The lawsuit claims the man was negligent on that service visit, allowing the system to run without properly repairing it or shutting it down.

“As a direct and proximate result of the breaches of duty by (the) defendants, Mr. Suarez-Bernal suffered immensely before dying of asphyxiation,” according to the lawsuit.

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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

Cook said they have hired people to assist in their investigation, which has been used to inform the lawsuit’s allegations, but there are still a lot of questions unanswered.

“The fundamental question is how and why this happened,” Cook said. “How does this happen with the world’s largest, privately owned gas company with unlimited resources?”

Cook said they have not been allowed to participate in the follow-up inspections and have not been able to sit down with investigators from the Occupational Safety and Health Administration.

“Ms. Murphy’s husband went to work one morning. She never talked to him again,” Cook said. “We have not had a meeting with OSHA, and Messer has been there and OSHA has been there. Why haven’t the families been allowed to come and inspect the scene?” 

Both lawsuits are seeking a trial by jury. The lawsuit for Murphy said it sought to recover all damages for “all losses compensable under Georgia law,” while the lawsuit for Suarez-Bernal wants to recover for the full value of Suarez-Bernal’s life, the pre-death pain and suffering, funeral expenses and punitive damages.

“The evidence will show that Messer was extremely careless and reckless with its work on this machine,” attorney Michael Goldberg said of the Suarez-Bernal lawsuit. “But we are also going to spend the next couple of months getting all the documents and looking through them to make sure all the possible entities that contributed to this tragedy are named as defendants in place of the John Does. We cannot wait for OSHA and the (U.S.) Chemical (Safety and Hazard Investigation) Board reports to point us in the right direction because those reports will not be out for months if not years. It is important to these workers and their families that everyone who has any culpability is brought to justice now.”

Cook and Hulsey are working on the case along with Alan Holcomb of Atlanta.

Goldberg is collaborating with Jorge Virguez and Keren Barrios.

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