November 11, 2014, PLLR E-Newsletter | The American Association For Justice Archive

November 11, 2014, PLLR E-Newsletter

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States ban ET-Plus guardrails after fraud verdict against manufacturer

Alyssa E. Lambert

At least 35 states have placed a moratorium on installing ET-Plus guardrails manufactured by Trinity Industries, Inc., after a Transportation Safety Institute (TSI) study concluded the ET-Plus was nearly three times more likely to cause a fatality than its predecessor and after a federal jury found Trinity liable for fraud concerning undisclosed design changes that are potentially fatal. The Federal Highway Administration (FHWA) has ordered new crash safety tests on the guardrails, and Trinity has stopped selling the ET-Plus. About a dozen personal injury and wrongful death lawsuits have already been filed, and plaintiff attorneys say this is only the tip of the iceberg.

In 2011, Joshua Harman, the owner of a small guardrail manufacturer, was embroiled in a patent dispute with Trinity when he uncovered a significant design change to the ET guardrail system. In 2005, Trinity had shortened the guardrail end terminal’s head or feeder channel—a steel cap on the end of the guardrail—from 5 inches to 4 inches. But it failed to report the “cosmetic change” to the FHWA or to federal and state transportation departments that must approve the guardrail for use. Although end terminals are designed to absorb energy during a crash to bring the vehicle safely to a stop without deflecting it back onto the roadway, these changes made the guardrail prone to locking up and becoming a spear that can impale vehicles on impact. The change saved Trinity $2 per unit, for a total savings of $50,000 per year.

Harman filed a qui tam lawsuit on the federal government’s behalf detailing the modifications. On Oct. 20, the jury awarded $175 million in damages, finding Trinity had committed fraud under the federal False Claims Act. Under federal law, the award would be tripled to $525 million. Trinity initially said it would appeal the verdict, but Judge Rodney Gilstrap has ordered the parties to mediation. (Harman v. Trinity Indus., Inc., No. 2:12-cv-00089 (E.D. Tex. Oct. 20, 2014).)

In late September, the TSI study was released, which examined severe injury and death data for crashes that occurred in Missouri between 2005 and 2014 and in Ohio between 2005 and 2013 involving five different guardrail end terminal designs. Researchers concluded the ET-Plus was 2.86 times more likely to produce a fatality than the ET-2000 and 1.36 times more likely to cause a severe injury, as Trial News previously reported.

The study and the qui tam verdict opened the flood gates. The FHWA threatened to ban the guardrails entirely if Trinity did not submit a plan to retest them by Oct. 31. Trinity barely made the deadline, but neither the FHWA nor the manufacturer has disclosed the plan’s details publicly, and there is no timetable for agency action. The FHWA has prohibited Trinity from involving the Texas A&M Transportation Institute—which conducted the original crash safety tests in 2005 and 2010—in the new round of testing. And whatever organization is ultimately chosen cannot have ever tested the ET-Plus and must disclose any financial interests it has in roadside safety hardware.

Philadelphia attorney David Kwass, who represents some of the plaintiffs against Trinity, said having an independent, neutral third party assessing the guardrails’ safety is crucial, noting that the National Highway Traffic Safety Administration is now getting involved. “The battle is, among other things, how are these end terminals going to be tested to make sure we are getting real world predictions about how they really perform in the field, and with ET-Plus, that has been one of the problems,” Kwass said.

At press time, 35 state transportation departments have banned installation of ET-Plus guardrails. But Virginia is the only state planning to remove the existing guardrails completely, as the rest are waiting for FHWA guidance. Kwass said this is problematic. Two weeks ago, a woman was killed in Bensalem, Pa., when her car crashed into an ET-Plus guardrail. The state’s transportation department replaced the damaged end terminal with another defective ET-Plus. Last week, Pennsylvania announced it is suspending all ET-Plus installations.

“How much does it take to get through to state bureaucrats? This was two weeks ago, and that was after the study and the verdict,” Kwass said. “The state departments of transportation are without a captain and without a rudder. And they are not doing what state tax dollars are supposed to be doing, which is building infrastructures that are safe.”

Another fatal accident occurred in Delaware just two days after the state’s ban. A car was punctured when it crashed into an ET-Plus guardrail, and the 22-year-old passenger was ejected through the rear windshield. Delaware is reviewing its 2,000-plus guardrails to see how many are ET-Plus. At least 12 lawsuits have already been filed, and Kwass expects the litigation to grow.

“It’s a safety device that is supposed to be energy-absorbing, and instead, we are seeing all sorts of horrible crashes where the guardrail didn’t do its job,” he said.