A judge has called the conduct of a Messer employee ’shockingly unacceptable and at best is grossly negligent’ in relation to a fatal liquid nitrogen leak at the Foundation Food Group in Georgia, US, earlier this year.

Six people were killed at the Foundation Food Group poultry plant in Gainesville in January when, according to investigators, nitrogen overflowed from the cryogenic freezer, which utilises liquid nitrogen. The nitrogen freezers and related nitrogen equipment installed on Line 4 of the facility were designed in the US by a company that Messer acquired in 2019, years after the freezers and equipment were designed and manufactured, Messer told gasworld. The freezer was manufactured by a sub-contractor, according to Messer.

Gwinnett County State Court Judge Emily Brantley has now ordered sanctions against Messer for hiding and destroying evidence in a lawsuit over the six deaths. Judge Brantley’s order applies to three of the six lawsuits that were filed.

A metal tube, called a bubbler and which acts as a safety device to keep the nitrogen from overflowing, was bent and was not working, according to a court document. A damaged tube is alleged to be partially to blame in the Foundation Food Group incident.

According to Brantley in a court document, a Messer technician found a bent tube on another of its freezers at a food processing factory in Stillmore, Georgia, after the fatal incident in Gainesville. The technician then replaced the tube, added a second bracket and threw the bent tube away, according to court documents.

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

“The conduct of Defendant Messer demonstrated throughout the discovery process is shockingly unacceptable and at best is grossly negligent,” Brantley writes in the court document.

Brantley added, ”It is difficult for this Court to understand and believe that none of the Messer employees recognised the importance of preserving the Crider [Stillmore, Georgia] bubbler tube… the jury is charged that if the second bent bubbler tube was available for testing, the results would have been favourable to Plaintiffs and unfavourable to Messer.”

Messer is now barred from providing any expert testimony regarding the bubbler tubes during trial.

Messer spokesperson Amy Ficon said the company is studying Judge Brantley’s ruling and believes the court should not have imposed sanctions because the bubbler tube that was discarded is not the bubbler tube at issue in the cases.

Ficon told gasworld this week, “We are fully dedicated to the common goal of determining the causes of this incident and have made every effort to assure that our equipment is used properly. The bubbler tube at Crider Foods was replaced by a technician who had inspected it as part of Messer’s ongoing efforts to ensure the safety of equipment in operation at other customer locations. The technician was at Crider Foods for a service call and did not know the bubbler tube, or anything else at Crider Foods, might be considered evidence in the FFG [Foundation Food Group] litigation. There was no ill intent by Messer to hide anything. The technician photographed the bubbler tube before replacing it, and the photo is available and has been produced to the plaintiffs and the Court.”

Relatives of the six victims sued Messer, Foundation Food Group and others in February, for allegedly installing a faulty cryogenic freezing system at the plant in December and then failing to properly inspect, repair and maintain the equipment or warn about its risks.

The Occupational Safety and Health Administration (OSHA) and the US Chemical Safety and Hazard Investigation Board inspected the Gainesville site on March 6, and the OHSA fined Messer and Foundation Food Group almost $1m in July.

The OSHA found that Foundation Food Group and Messer failed to implement any of the safety procedures necessary to prevent the nitrogen leak, or to equip workers responding to it with the knowledge and equipment that could have saved their lives.

OSHA cited Foundation Food Group, Messer, Packers Sanitation Services and FS Group Inc. responsible for operations at the Gainesville facility for a total of 59 violations and proposed $998,637 in penalties. The agency found Messer exposed workers to injuries and suffocation from the uncontrolled release of liquid nitrogen; failed to ensure an egress path was unobstructed; and did not develop, document and use lockout procedures, nor ensure lockout procedures were shared between the host employer and contractors. Messer faces $74,118 in penalties.