Trinity Industries of Dallas, manufacturer of the controversial ET-Plus highway guardrail system, has been ordered to pay a $663 million judgment for defrauding the Federal Highway Administration. The ruling, issued on June 9 in U.S. District Court in Texas, is based on an October 2014 verdict of a False Claims Act whistleblower lawsuit that found Trinity modified components of the ET-Plus in 2005 without notifying the agency.
Numerous deaths and injuries have since been associated with alleged failures in the ET-Plus end terminal, despite tests that the FHWA says support the system’s safety and continued eligibility for federal reimbursement.
The suit was brought by Joshua Harman, owner of SPIG Industry, a Bristol, Va., guardrail manufacturer. Harman claims that the modification, which narrowed the W-beam end terminal’s exit gap from 5 in. to 4 in., increases the likelihood that the terminal will lock up in a head-on collision, causing the guardrail to severely buckle and spear into the vehicle’s passenger compartment.
“Looking at the way it’s designed, there’s no way it can physically work,” says Harman, who, having documented numerous collisions involving ET-Plus units across the country, says his objective is “a complete product recall.”
In a statement, Trinity insists that no fraud was committed, and that the ET-Plus is safe, noting that FHWA “has repeatedly confirmed that the ET Plus is fully compliant with all applicable federal safety regulations.”
The company also asserts that the trail court “made significant errors” in applying the federal False Claims Act to Harman’s allegations. Pending the outcome of post-judgment motions, Trinity plans to take the case with the U.S. Court of Appeals.
Harman has also criticized the FHWA-mandated post-trial testing of the ET-Plus, which was funded by Trinity and performed at the Southwest Research Institute (SWRI) in San Antonio, Texas. He points to one crash test where a folded guardrail drove the front drivers’ side door into the passenger compartment as far as the steering wheel. Post-crash measurements showed a 6.75 in deformation of the door, even though on-board video appears to show a potentially more severe impact.
According to National Cooperative Highway Research Program (NCHRP) Report 350 crash test evaluation criteria, “Deformations of, or intrusions into, the occupant compartment that could cause serious injuries should not be permitted.”
“There’s no way you can look at the video write that up as a pass,” says Harman.
FHWA counters that evaluation of the ET-Plus has been approached “in an engineering-based data-driven manner,” according to an agency statement. Dr. Clay Gabler of Virginia Tech’s Department of Biomedical Engineering and Mechanics, was selected by FHWA to review and analyze the crash test results. He concluded that passengers in the crash conditions of the test “would have been unlikely to have been at risk of serious injury from the folded rail impact to the driver door.”