4 States Have Suspended Use of Controversial Guardrail

Expert testifies if fraud found, $175M in damages may already be done in U.S.

October 16, 2014, 1:00 PM

— -- Virginia has become the fourth state to halt the use of a controversial guardrail system that it says was never approved for use on its roadways and is now at the center of a contentious safety lawsuit.

A letter from Virginia’s State Construction Engineer in the VDOT to its area engineers says that after a version of the guardrail system was approved for use in 2000, the guardrail maker, Trinity Industries, changed the design of the guardrail in 2005, including reducing the width of a piece in the guardrail’s end terminal from five inches to four, and “did not notify the Department of the modification.”

“Due to this modification, any Trinity ET-Plus terminals with 4” channels are not, and have never been, approved for use in Virginia,” says the letter, obtained by ABC News. “Effective immediately, on any contract that includes installing Alternate Breakaway Cable Terminal (GR-9), if the Contractor is planning to use Trinity’s ET-Plus that has 4” channels, that material is not approved for use and is not to be used.”

The letter follows another from the VDOT, this one from Oct. 10 and directed at the Texas-based Trinity Industries, that criticized the company for making “undisclosed modifications to the ET-Plus in 2005” and offering the company an ultimatum: Prove through crash tests that that modified system is safe by the end of next week, or the guardrails will not be used on Virginia roadways. The more recent letter to the Virginia contractors stipulates that those who have already purchased the ET-Plus system for new projects can wait until a “short time after” Oct. 24 to see if they end up approved for use by the VDOT.

The 2005 design change to the guardrail end terminal, which was not disclosed to the federal government at the time, was the subject of an ABC News “20/20” investigation in September following allegations from crash victims that the modifications made the safety devices more dangerous, contributing to severed limbs and deaths in auto accidents. Specifically, the victims allege that when a vehicle hits the front of the modified guardrail, rather than absorbing the impact and ribboning outwards, the guardrail “locks up” and spears right through the car and its occupants.

Prior to the Virginia order, Massachusetts, Missouri and Nevada each announced they were halting the use of ET-Plus while they investigate further.

The President of Trinity Highway Products Gregory Mitchell said today that the states' stances were "based on an administrative error."

Previously, Trinity admitted it “inadvertently omitted” the design documents that would have notified the government of the change in 2005. The company says it has a “high degree of confidence in the performance and integrity of the ET-Plus system.” The company also notes that the Federal Highway Administration has repeatedly accepted the ET-Plus system for eligibility on the nation’s highways.

Josh Harman, a competitor of Trinity’s, is currently suing the company in Texas, alleging that Trinity defrauded the government by not disclosing the design changes. A damage expert called by the plaintiff told the court Wednesday that should the jury decide it was fraud, the damages would be at least $175 million to the federal government, which reimburses states for installing the guardrails.

Mitchell, who testified in his company's defense today, declined to answer additional questions posed by ABC News outside the courtroom Wednesday.

Also Wednesday the court saw crash test video that showed a different configuration of the ET-Plus system, which the company said was “experimental,” repeatedly failing when hit by small passenger cars. The video was never shared with government safety officials.

Harman’s team argued that since the experimental configuration still used the four-inch end terminal, it showed the flaws in that piece, which is used on roads across the country. In a statement to ABC News late Wednesday, Trinity argued the version of the guardrail shown in the crash test video, which it described as a “flared ET,” was not the same as the ET-Plus system and never made it on the road.

“The experimental testing of the flared end terminal conducted by TTI was purely a research and development project and was never submitted to the Federal Highway Administration for acceptance. By introducing this research and development activity and suggesting that the testing was tied to the testing of the ET-Plus, Mr. Harman continues to try to establish a negative image of Trinity to the jury,” a representative for Trinity said in a statement to ABC News late Wednesday. “By presenting sensational videos of the flared end terminal testing, Mr. Harman is simply distorting the facts. The flared end terminal was never manufactured, sold or installed on the nation's highways.”

More recently, when questions were raised over the ET-Plus system in 2012, Trinity turned over to the federal government videos of other crash tests it had done on the ET-Plus system in 2005 and 2010, which the company says show the guardrails functioning properly.

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