TxDOT suspends use of Trinity guardrail device after qui tam lawsuit

Marilyn Tennissen Nov. 10, 2014, 1:12pm

The Texas Department of Transportation has suspended the use of highway guardrails following a $175 million lawsuit against the manufacturer.

As previously reported, on Oct. 21, a whistleblower won a suit against Trinity Industries, the maker of the ET-Plus guardrail end caps, which were used throughout Texas and other states across the country. 

The ET-Plus was designed by Texas A&M engineers at the Texas Transportation Institute and has been in use since 2000.

A guardrail installer named Josh Harman brought a qui tam suit against Trinity, claiming it redesigned the end caps in a way that made them unsafe.

The cap is placed on the ends of highway guardrail segments and is intended to absorb the crash impact and cause the rail to collapse away from the vehicle.

According to the lawsuit, Trinity allegedly changed the design of the caps that go on the end of the guardrails without notifying the Federal Highway Administration, as they would have been required to do.

By changing the side of each end cap from 5 inches to 4 inches, the company saved $2 per guardrail endcap, $50,000 per year, and $250,000 over five years, according to a press release from the Texas Department of Transportation.

However, Harman claimed that because of the shrunken internal dimensions of the feeder chute, the guardrail often gets stuck inside the ET-Plus guide chute. Several personal injury lawsuits have claimed the guardrail actually pierces the vehicle like a spear and can impale passengers.

Harman sued Trinity in 2012 on behalf of the government under the qui tam provisions of the False Claims Act, which allows whistleblowers to sue companies over allegedly fraudulent acts that are harmful to the government.

Because most interstate highway construction is paid for by federal funds, the departments get reimbursement from the Federal Highway Administration for purchases of the ET-Plus.

He also claimed Trinity used to market its end terminals to the government as being re-usable, but after shrinking the dimensions, it is not likely a terminal can be salvaged after a crash, giving Trinity an opportunity to sell a new end cap terminal, according to court papers.

A federal jury in Marshall agreed with Harman, and ordered Trinity Industries to pay $175 million.

Texas has now joined more than 30 other states across the country suspending the installation of the systems.

"Safety remains our top priority," TxDOT said in a statement.

"As the Federal Highway Administration continues seeking more information on the ET-Plus, TxDOT also will begin collecting data on future vehicle collisions with any guardrail terminal end treatments."

It's not known how many of the affected guardrail systems are on the nearly 80,000 miles of Texas roads.

Nick Wade, a public information officer for the Beaumont District of TxDOT, said at this time he does not know if the agency will remove any existing ET-Plus guardrails, but said, as the press release states, that the current use is suspended.

The Federal Highway Administration is now requiring Trinity Industries to conduct further collision testing, or risk losing federal reimbursements.

Trinity has denied wrongdoing in the cases and previously said it has a “high degree of confidence in the performance and integrity” of its ET-Plus guardrail ends.











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