GAINESVILLE - After the discovery of destroyed evidence in the Foundation Food Group fatal nitrogen leak, a judge called the defendant’s conduct in a wrongful death lawsuit “shockingly unacceptable and at best is grossly negligent.”

Gwinnett County State Court Judge Emily Brantley ordered sanctions against Messer Gas LLC, an industrial gas company, in the lawsuits filed after six people were killed Jan. 28 at the Gainesville poultry processing facility.

According to court documents, the plaintiffs said a “bubbler tube,” which senses the level of liquid nitrogen to prevent overflows, was “damaged and displaced from its original orientation” during a March 6 inspection.

Attorneys for the families filed a motion for sanctions earlier this year after the discovery of a second damaged bubbler tube at a different facility serviced by Messer that was not preserved. This information was not disclosed to the plaintiffs’ attorneys until Aug. 23, more than six months after the lawsuits were filed in Gwinnett County State Court, according to court documents.

“We have families whose lives are forever changed and who have suffered a tragic and incomprehensible loss,” the judge wrote in an order granting sanctions. “It would be a disservice to our system of justice for these families to believe that their opportunity for a fair trial in these cases was compromised by defendant Messer’s abuse of the discovery process. A party cannot destroy evidence for which it maintains possession and complete control and then use the lack of that evidence to its advantage. Nor can a party avoid its duty to disclose the truth by inaction or silence.”

The attorneys said they could be ready for a trial in the spring. Ronny Hulsey, one of the attorneys representing the families, said he and his co-counsel made a commitment to their clients to figure out what happened and make sure that “a tragedy like this never happens again.”

“When you do something to the level of what Messer did … you have forever precluded anybody from ever knowing exactly what happened, and so that’s why we moved swiftly for some severe penalties that the law allows,” Hulsey said.

Referencing the teams of attorneys representing Messer and its standing as one of the largest gas companies in the world, Hulsey’s co-counsel, Jeff Talley, called it a “true modern-day David and Goliath.”

The head project executive at Messer arranged a conference call April 17 because of his “particular concerns about the immersion freezer at the Crider Food Plant” in Stillmore, which was manufactured and installed around the same time as the Foundation Food Group freezer, according to the judge’s order.

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The executive advised Messer’s counsel about his requested inspection at the Crider plant and the subsequent discovery of the bent bubbler tube, according to the judge’s order.

In both freezers, the bubbler tubes were missing a support bracket.

But Messer “denied knowledge of any other bent bubble tubes in its written discovery responses” while producing roughly 28,000 documents, according to the judge’s order.

The judge wrote that she would give information to the jury regarding the other defective freezer and Messer’s duty to preserve the bent bubbler tube.

“Instead, Messer falsely denied the existence of the second bent bubbler tube and destroyed it,” the judge’s charges to the jury reads. “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.”

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.

“This defendant cannot spoliate evidence and then present expert testimony to opine about same,” the judge wrote.

Messer spokeswoman Amy Ficon said the company “remains committed to the shared goal of finding the causes of this incident and to doing its part to prevent such an incident from happening again.”

Ficon referenced the citations against Foundation Food Group filed by the Occupational Safety and Health Administration, which included a failure to train employees on safety hazards with nitrogen.

The bubbler tube in the Crider plant was photographed and replaced by the Messer technician, Ficon said.

“He did not think the slightly bent tube, which was still functional, was of any significance and discarded it,” Ficon wrote in an email. “... No one at Messer directed or told the technician to throw out the Crider bubbler tube. Messer acted in good faith, and its employees did not intend to destroy evidence.”

 Story originally published in the Gainesville Times, sister paper of the FCN.