Controversial Guardrails Doing More Harm Than Good to Motorists

Guardrails are designed to help reduce the severity of accidents or help prevent them altogether but a controversial guardrail in use on highways all over the U. S. is doing more harm than good to motorists who unfortunately collide with it, according to a whistleblower lawsuit filed on behalf of the United States.

The guardrail in question is the ET-Plus guardrail system made by Trinity Industries of Texas and the key metal piece is the ET-Plus guardrail end terminal, a square end piece that when hit head-on, should ribbon out and slide along the guardrail to help absorb the collision impact.

A whistleblower lawsuit brought by Josh Harman on behalf of the federal government under the False Claims Act alleges Trinity defrauded the federal government by reducing the size of the ET-Plus guardrail end terminal thereby rendering the guardrails dangerously defective. The False Claims Act allows everyday citizens to file suit on behalf of the federal government against government contractors where fraud is alleged. Any award of damages is tripled to provide a disincentive to government contractors not to defraud the government.

Harman outlines that in 2005, the Federal Highway Administration (FHWA) approved states’ use of the ET-Plus guardrail system thereby allowing states’ purchasing agents to receive federal highway reimbursement funds. Harman alleges after federal approval that Trinity changed the ET-Plus guardrail systems from a 5” to a 4” end terminal for all systems made after September 2, 2005. Harman claims this minimal change had huge impact rendering the guardrails dangerously defective because the 1” reduction in the end terminal caused the guardrail to lock up rather than absorb the crash impact spearing through vehicles making them hazardous to the drivers they were designed to protect.

Why was the end terminal reduced in size from 5” to 4” after the federal contract was approved? Harman thinks it was a money decision saving $2 per end terminal, and $50,000 annually.

Harman further contends that because Trinity failed to notify the government of the design change in the end terminal, as it should have under the terms of the contract, it defrauded the government in a years-long cover-up. Harman seeks a recall and replacement of all defective guardrails throughout the country containing the 4” to the 5” end terminal.

Trinity counters:

  • It did nothing wrong
  • The change from 4” to 5” is merely cosmetic and does not affect the function and safety of the end terminal
  • Plaintiff Harman is a disgruntled competitor with a competing design and his whistleblower claim has no validity
  • 4” end terminals still meet federal safety standards
  • Failure to notify the Federal Highway Administration was an inadvertent omission, not a purposeful fraud

A Texas jury in October 2014 didn’t buy Trinity’s argument and awarded $175 million in damages. It found Trinity defrauded the government under the False Claims Act with unauthorized changes in the end terminal of the ET-Plus guardrail and created a dangerously defective product with a deadly flaw. The jury also found that the reduction in the end terminal size without prior notice and approval by the federal government constituted fraud. Damages will be tripled to $525 million pursuant to federal law.

Trinity has indicated it will appeal the verdict, although it did halt sales of its ET-Plus guardrail systems after newly-order FHWA crash testing was ordered. Many states are also launching their own safety investigations and will await FHWA safety testing before installing any more ET-Plus guardrail systems.

Kentucky transportation officials do not know how many of the defective guardrail end terminals are currently in use on roads in the Commonwealth but they have notified road contractors not to use the ET-Plus guardrail systems. At least 30 other states have also suspended use of the ET-Plus system. Kentucky lawmakers have also asked for an increase in the transportation budget to replace guardrails in Kentucky that may have defective end terminals.

Fortunately, there are no reports of spearing injuries or deaths yet involving guardrails in Kentucky, but this case demonstrates the importance of a strong justice system that preserves our legal rights to be able to hold corporations accountable when they sell defective products that injure and kill people and engage in fraudulent business practices choosing profits over people. “Tort reform” and caps on damages eliminate one of the few checks consumers have against corporations that produce dangerously defective products and will serve only to deny innocent victims of defective products the compensation they need to deal with the life-changing and permanent injuries they suffer. It will also provide a monetary disincentive for corporations to ensure the safety and effectiveness of their products.