A company manufacturing guardrails lining highways in California and across the country defrauded the federal government, according to a jury verdict out of a federal whistleblower case in Texas.
Trinity Industries, a highway manufacturing heavyweight based in Texas, has been accused in lawsuits and complaints across the country for making a change to a widely used version of its guardrail end terminals, the ET-Plus.
The changes cause the guardrail to perform improperly, according to the lawsuits.
On Tuesday, in a letter to the company, the federal government is asking Trinity to perform additional crash testing of the ET-Plus guardrail. According to the letter, the company must submit a crash test plan to the U.S. Department of Transportation's Federal Highway Administration (FHWA) by October 31.
“Should Trinity not comply with this request, FHWA may suspend and/or revoke the eligibility of the ET-Plus,” according to the letter.
In a statement, Trinity said “it looks forward to working with the Federal Highway Administration and having further conversations about additional testing of the ET-Plus® System. It is important to us that our nation’s roads are safe for drivers across our country. We have the highest degree of confidence in our company, our employees, and the performance and integrity of our products.”
The jury awarded $175 million Monday in favor of Josh Harman, the whistleblower in the federal case brought under the False Claims Act. Harman is a competitor of Trinity who alerted the FHWA to changes made to the ET-Plus.
“Hopefully, their verdict and the voices of victims across the country will be heard by Congress,” Steven Lawrence, an attorney for Harman, said in an email statement to NBC 7 Investigates.
In a statement, Trinity suggests it may appeal the verdict:
“The Company respects the jury's decision. However, Trinity believes the decision cannot and will not withstand legal scrutiny. The Company strongly believes the courts will affirm its position.”
Lawrence and other lawyers are representing victims across the country in cases against Trinity for injuries incurred after coming in contact with Trinity guardrails in crashes.
According to the lawsuits, instead of passing through the terminal chute and pigtailing out the side, away from the vehicle, the metal railing of the guardrail jams up inside the chute. The metal then sometimes pierces through a vehicle like a spear, cutting through cars and sometimes the people inside.
Trinity has said in statements the company stands behind its product and has called Harman’s allegations “false and misleading.”
This recent verdict is just the beginning Lawrence said, “Joshua Harman's demand from the beginning was a recall, and that's still what he's asking for.”
This year, four states have removed the Trinity ET-Plus guardrails from state-approved product lists, banning future use of the end terminals on roadways. Nevada prohibited them in January because Trinity failed to disclose the change in the product to the state. Missouri, Massachusetts and Virginia has cited safety concerns.
The FHWA is the federal agency responsible for approving which highway safety materials are eligible for federal reimbursement and states look to for which products are approved for use on their highways.
In previous statements the department has said the ET-Plus remains eligible for federal reimbursement.
After the verdict Monday, Brian Farber, an FHWA spokesperson said in a statement, the department “will evaluate the findings of the Trinity case and consider whether it affects the continued eligibility of the ET-Plus. Separately, the FHWA continues to review the Trinity guardrail service record. We have asked all states to immediately share any crash information involving the Trinity ET-Plus guardrail end terminal. To be clear, our number one priority is safety and we will take a data-driven approach to ensure safety on our highways.”
In a recent study, researchers at the University of Alabama Birmingham looked at almost a decade of crashes in Missouri and Ohio.
According to the study, the ET-Plus guardrail end terminal is 1.36 times more likely to produce a severe injury and 2.86 times more likely to produce death than an older model manufactured by Trinity, the ET-2000.
The study was funded by The Safety Institute and the Missouri Highways and Transportation Commission and published Sept. 11 by the University of Alabama School of Engineering. In 2012, the FHWA was notified of the changes made to the ET-Plus by Harman.
When asked about the changes, the company admitted to making them in 2005 and apologized for omitting the details of the changes to the federal government. Trinity provided crash tests which it said showed no safety issues with the modified ET-Plus. The tests were certified by the Federal Highway Administration.
Last March, a committee with a national traffic safety non-profit, the American Association of State Highway and Transportation Officials (AASHTO), approved an in-service review of guardrail terminals.
It’s being led by the Transportation Research Board’s National Cooperative Highway Research Program.
It hopes to determine whether or not guardrail end terminals currently on our roadways, which have performed acceptably in crash tests, are actually performing the way they are designed to perform in real-world accidents.
The review was initiated after the committee surveyed state transportation officials across the country, Tony Dorsey, AASHTO's Manager of Media Relations said. The survey asked state officials if they had been having problems with any guardrail end terminals.