Guardrail company halts sales after lawsuit; states jump ship

By David Tanner, Land Line senior editor | Thursday, October 30, 2014

A manufacturer of highway guardrails has suspended sales after a Texas jury found the company liable for misleading the federal government about the specs and safety of its products. Thirteen states that bought a specific guardrail product made by Trinity Industries have now banned the “energy absorbing end terminal” known as the ET-Plus.

Lawsuit plaintiff Joshua Harman challenged that Trinity Industries and subsidiary Trinity Highway Products changed the design and reduced the size of the ET-Plus after the Federal Highway Administration signed off on use of the ET-Plus on U.S. highways and interstates. Harman claimed the redesigned product was less safe than the original and that selling it was a breach of the False Claims Act.

Part of Harman’s claim was that the reduced ET-Plus design could actually shear a vehicle instead of absorbing impact in a crash.

A jury for the U.S. District Court for the Eastern District of Texas in Marshall found Trinity Industries civilly liable on Monday, Oct. 20, and ordered the company to pay $525 million in damages.

The Texas Department of Transportation joined a growing list of states that have discontinued using the ET-Plus until more safety tests are done.

“In response to Trinity Highway Products, LLC, suspending shipment of the ET-Plus System, TxDOT is immediately suspending the specification of these systems as an alternative in contracts and is discontinuing the use of these systems for new installations until further notice,” a TxDOT media relations spokesperson stated in an email.

“Safety remains our top priority. As the FHWA continues seeking more information on the ET-Plus, TxDOT also will begin collecting data on future vehicle collisions with any guardrail terminal end treatments. This information will be shared with the FHWA.”

The Federal Highway Administration’s Office of Safety issued a request to states to collect data on crashes involving the system on Oct. 10, which was prior to the lawsuit verdict but after Missouri, Massachusetts and other states began suspending the ET-Plus system on their own.

“Please immediately contact your state DOTs and advise them of these recent developments, ask that they pay particular attention to all crashes involving these devices, and request that any findings from their investigations be shared with the FHWA Office of Safety,” Tony Furst, FHWA Associate Administrator for Safety, wrote to administration field directors.

In their testimony during the lawsuit, lawyers for Trinity argued the company did not falsify information it provided to the federal government. Trinity officials are quoted in The New York Times this week as saying their products are required to meet strict safety criteria and they plan to retest their products and submit results to the FHWA. Until then, they say they will not sell or deliver the current ET-Plus to any of their customers.

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