As Safety Concerns Grow, More States Ban Use of a Guardrail Unit

Submitted by Personal Injury Attorney, Jeffrey Hark

Originally posted here by the New York Times.

Concern over the safety of guardrails manufactured by Trinity Industries spread further on Wednesday as two more states said they would ban the use of the company’s ET-Plus rail head, which is thought to have a dangerous defect.

A day after the Federal Highway Administration demanded that the ET-Plus be retested for safety, Oregon and Mississippi became the sixth and seventh states to prohibit further installation of the system. The federal agency had defended the product for more than two years, even after it learned that Trinity had changed the design in 2005 without notifying the government, as required.

After mounting concerns raised by state transportation officials, and by a whistle-blower lawsuit that ended last week, Gregory G. Nadeau, the acting administrator of the highway administration, wrote to Trinity on Tuesday directing that new tests be done.

The company has until the end of October to submit plans for new crash tests or the agency “may suspend and/or revoke the eligibility of the ET-Plus.” Trinity declined to comment.

Brian Farber, a spokesman for the Transportation Department, said in a statement, “As we have previously stated, we are going to leave no stone unturned in getting to the bottom of this issue.”

The jury in the whistle-blower trial returned with a verdict for $175 million on Monday, finding that the company had defrauded the federal agency by keeping changes to the ET-Plus secret for seven years. By statute, that will be tripled to $525 million, and Trinity will also be responsible for statutory fines and lawyers’ fees that could make its total costs approach $1 billion. The company has indicated it will appeal.

The ET-Plus units have been installed in almost every state. While states are responsible for their equipment, the Federal Highway Administration plays a crucial role, providing guidance on what is eligible for federal reimbursement.

A number of states, including Maine, New Jersey, Tennessee and Vermont, are assessing the systems. Other states have said they are awaiting guidance from the Federal Highway Administration. Delaware said it was considering a ban.

Mississippi said it would not remove guardrails until the completion of the additional crash testing.

“Safety for the traveling public is our No. 1 priority,” said Jarrod Ravencraft, a Mississippi Department of Transportation spokesman.

Bob Pappe, state traffic engineer at the Oregon Department of Transportation, said in a statement that the state wanted to see more tests. But it also thought a ban on further use was warranted. He added that officials were reviewing accident data to see if the ET-Plus had “been involved in any crashes on state highways in Oregon and if they performed safely.”

On Tuesday, the day after the jury ruled against Trinity, New Hampshire suspended the installation of the ET-Plus, pending determination of adequate performance.

Before the verdict, three other states, Missouri, Massachusetts and, most recently, Virginia, had banned further purchase of the ET-Plus, citing safety concerns. A fourth, Nevada, prohibited them in January, citing Trinity’s failure to disclose the change.

Bill Boynton, spokesman for the New Hampshire Department of Transportation, said there were about 1,300 Trinity units throughout the state and that the agency had not yet decided whether to remove them from roadsides.

The American Association of State Highway and Transportation Officials, a nonprofit group, said it was in favor of further testing.

“We support F.H.W.A.’s actions to have the manufacturer reverify, through appropriate crash-testing procedures, whether the ET-Plus guardrail end treatment meets the requirements to remain eligible for use on federal-aid projects,” said Bud Wright, the association’s executive director.

The Federal Highway Administration has prohibited Trinity from using the Texas A&M Transportation Institute, which conducted the original crash safety tests in 2005 and 2010, from participating in the new round of crash tests. The institute owns the patent on ET-Plus, which it licenses to Trinity. In a statement on Wednesday, the institute said it “stands behind the integrity of its research and the safety of the products that have been successfully tested at TTI facilities.”

Related Posts on the Trinity Guardrail issue:

Guardrail Maker Liable for Fraud in Texas

Highway Guardrail May Be Deadly, States Say