Highway guardrail manufacturer Trinity Industries Inc. won the latest round in a long-running legal fight, when a federal appeals court overturned an earlier $682.4-million judgment against the Dallas-based company.
The decision, issued on Sept. 29 by a three-judge panel of the 5th U.S. Circuit Court of Appeals, is a defeat for Joshua Harman, a former Trinity customer and competitor, who alleged that Trinity violated the False Claims Act by not disclosing to the Federal Highway Administration changes in a newer version of the firm’s guardrail end-terminal. An attorney for Harman did not return ENR’s call seeking comment.
In 2000, the Federal Highway Administration, which determines which guardrails and other roadside safety equipment qualify for federal funding, accepted Trinity’s ET-Plus end-terminal, designed for 27¼-in.-high guardrails. In 2005, FHWA also approved Trinity’s newer, 31-in. model, which had a 4-in.-wide center channel—one inch narrower than the earlier model’s.
Harman collected information on accidents involving guardrails. He found several changes from the earlier ET-Plus and contended they made it a new product. He also said he couldn’t find records that FHWA had approved it. In 2012, Harman sued, arguing Trinity didn’t disclose the ET-Plus modifications, except for the wider channel.
In June 2014, FHWA released a memo stating it had crash-tested the newer ET-Plus and the product had remained eligible for federal funding since 2005.
In June 2015, a federal district court jury sided with Harman, finding that Trinity had defrauded the government and hit the company with a $682.4-million judgment. Trinity appealed to the fifth-circuit court.
Writing for the appellate panel, Judge Patrick Higginbotham said that, in this case, “the federal government has never been persuaded that it has been defrauded.”