After several hours of deliberation, a federal jury decided that Trinity Highway Products LLC should pay $175 million for defrauding the U.S. government by selling dangerous guardrails.
The case was brought by whistleblower, Joshua Harman, Trinity competitor and guardrail installer in Virginia, who claimed that the changes made could cause guardrails to pierce crashing vehicles rather than absorb their impact, putting occupants at risk of serious injury or death.
The jury in Marshall, Texas found Trinity civilly liable for violating the False Claims Act. The damages award was based on the amount the federal government reimbursed states for thousands of Trinity’s energy-absorbing guard terminals and automatically triples to $525 million under the law, which would be split by the U.S. Treasury and Harman. Days later the company announced it would stop shipping its ET-Plus guardrail system.
Virginia said it plans to remove the company’s products after it failed to meet a state deadline to supply documentation for new crash testing. Virginia would be the first state to take such an action, going a step further than several other states that have now banned additional purchases of the guardrails.
The railheads are found at the end of the guardrail, and are suspected of having a dangerous defect that could lead them to jam, causing guardrails to pierce vehicles.
But the Federal Highway Administration, whose job it is to ensure the safety of the nation’s roads, continues stating that the guardrails on highways in almost every state, meet crash-test criteria. Not surprisingly, the manufacturer of these guardrails, Trinity Industries, who supplies many of the guardrails nationwide, also denies there is a safety problem.
At the crux of the issue is that Trinity implemented a change to the guardrail in 2005. The new design reduced the width of the steel channel (behind the railhead at the end of the guardrail), from five inches to four. Rather than sliding along the rail, which collapses similar to an accordion, helping it curl out of the way of an oncoming vehicle, the railhead can become jammed, some state officials say. In those cases, the long metal guardrail does not get pushed aside—instead, state officials say, it can become a bayonet that can pierce the vehicle and any person in its way.
Any design changes are supposed to be disclosed to the Federal Highway Administration, along with detailed diagrams. But when Trinity made its railhead narrower, it did not make any such disclosures.
Meanwhile, for more than seven years, tens of thousands of the modified ET-Plus railheads were installed nationwide. It was only after a patent case in Virginia in 2012, that the federal highway agency was alerted to the discovery of the change. Trinity sued Joshua Harman, the part owner of two companies that manufacture and install guardrails, for patent infringement in 2011. It was during that case that Mr. Harman learned of the Trinity design changes and reported them in 2012. That legal dispute led him to file a federal lawsuit against Trinity under the False Claims Act, and the October 20, 2014 trial, which found Trinity liable for failing to tell the highway agency about changes it made in 2005.
Questions are being raised regarding the close ties between federal safety agencies and the companies they oversee. Investigations continue as to why the National Highway Traffic Safety Administration (a federal agency separate from the Federal Highway Administration) failed to act on defective ignition switches in General Motors cars linked to at least 30 deaths. These government agencies are supposed to review products, check crash-test results and monitor the performance and integrity of products that affect our citizens.
In addition to individual states acting on their own regarding guardrail incidents, this safety issue captured media attention, including a segment on ABC’s “20/20.”
It is unclear just how much Trinity Industries will actually have to pay. Damages are usually tripled under the federal rules governing whistleblower cases and Harman’s legal team has asked Judge Rodney Gilstrap to issue additional penalties of more than $100 million.
If you or a loved one has been injured or killed as a result of a defective product you may be entitled to compensation for your damages. Contact one of our Gacovino Lake attorneys at 1-800-246-HURT (4878) for more information.