Feds Demand New Crash Tests for Controversial Guardrail After $175M Verdict

Sen. disturbed by "effectiveness of device," but also by feds’ handling of case.

ByABC News
October 21, 2014, 11:39 AM

— -- Federal officials today demanded that a leading guardrail maker perform new crash tests on guardrails that already line American roads coast to coast, a day after a Texas jury found the company duped the U.S. government during a safety approval process nearly a decade ago.

In a letter to the President of Trinity Highway Products, FHWA Acting Administrator Gregory Nadeau said the company has until the end of the month to provide a crash testing plan or the eligibility of the guardrail, called the ET-Plus system, could be suspended or revoked.

Monday Trinity Industries, parent company to Trinity Highway Products, was ordered to pay $175 million in damages – a figure that is expected to triple by statutory mandate – after jurors decided the company had defrauded the government years ago by altering an approved guardrail end terminal design in 2005 and then failing to tell the federal government or state transportation departments about the changes until questions were raised in 2012.

In an internal company email obtained in the course of an ABC News “20/20” investigation last month, a Trinity official estimated that making one of the modifications -– reducing a piece of metal from five inches to four -- would save the company $2 per guardrail end terminal, or $50,000 per year.

Beyond continuing to sell a different product than what states believed they were buying, critics say Trinity’s modifications made the guardrails more dangerous to motorists because they can “lock up” when struck from the front and, rather than absorb the car’s impact, spear straight through the car and its occupants.

Following the verdict, the FHWA also came under fire from Sen. Richard Blumenthal, D-Conn., who sent his own letter to Nadeau asking for answers to several questions about the approval of the ET-Plus system and the FHWA's decision to keep the devices on the approved list after questions were raised in 2012.

“I am gravely concerned about the effectiveness of this device and the conduct of Trinity in failing to disclose what could be a material change to a critical safety product. I am also very concerned that the Federal Highway Administration (FHWA) failed to protect against potentially fatal defects in this product and that it continued… to assume and represent to state transportation agencies that the product was safe,” Blumenthal wrote. “States and motorists must be able to rest assured the product is safe or take additional action should the product fail to meet safety standards.”

During ABC News’ investigation, Trinity maintained that the changes were made to improve the end terminal and only “inadvertently omitted” documentation about the change in papers to the government back in 2005. Trinity said then it has a “high degree of confidence in the performance and integrity” of the ET-Plus system and noted the FHWA’s post-2012 approvals.

After the verdict Monday, attorneys for Josh Harman, a competitor of Trinity’s who had sued Trinity over the changes, said they were “pleased” that the jury “after hearing evidence for just four days and deliberating for just three hours… saw the plain truth that the FHWA has clearly been defrauded and that fraud has exacted the ultimate toll in claiming lives of those unnecessarily endangered by Trinity’s secretly-modified guardrail end terminals.”

In recent months four states – Virginia, Massachusetts, Missouri and Nevada – have said they are suspending the installation of the ET-Plus system as they investigate further.

Trinity said it is working with the states and will appeal Monday’s decision, saying it “will not withstand legal scrutiny.”

In response to the FHWA’s letter, Trinity released a statement to ABC News saying the company “look[s] forward to working with the Federal Highway Administration and having further conversations about additional testing of the ET-Plus System.”

“It is important to us that our nation’s roads are safe for drivers across our country,” the company said. “We have the highest degree of confidence in our company, our employees, and the performance and integrity of our products.”