Virginia Sues Guardrail Maker For Fraud Amid Urgent Safety Tests

Guardrails retested after major court decision; so far "nothing remarkable".

ByABC News
December 11, 2014, 8:01 PM

SAN ANTONIO— -- In an unflinching, scathing complaint containing accusations of fraud and deceit surrounding what he calls a "defective" product, the Virginia Attorney General today filed a lawsuit against the maker of a widely-used guardrail system that has been blamed for severe injuries and deaths across the country.

Virginia AG Mark Herring said Texas-based Trinity Industries "sold the Commonwealth thousands of unapproved products that had not been properly tested to ensure they would keep motorists safe."

"It is shocking that a company would think they could secretly modify a safety device in a way that may actually pose a threat to Virginia motorists," Herring said in a statement.

Herring was referring to several modifications made to the end of Trinity’s guardrail system, at a piece called the end terminal, in 2005 -- changes that were not disclosed to federal or state transportation officials until years later. The modified version of the guardrail end terminal, called the ET-Plus, was the subject of an ABC News investigation in September that looked into gruesome injuries and deaths that critics blamed on the modified guardrail.

The critics, including accident survivors, allege that the modifications can cause the guardrails to "lock up" when hit from the front with a vehicle. Rather than ribboning out as designed, the guardrail instead spears straight through the vehicle, severing limbs or even killing the vehicle's occupants. ABC News obtained an internal Trinity email in which a Trinity official estimated that making one of the 2005 modifications -- reducing a piece of metal in the end terminal from five inches to four -- would save the company $2 per end terminal, or $50,000 a year.

"The undisclosed modifications to the old ET-PLUS were not harmless improvements or enhancements," the 18-page Virginia complaint reads. "Many accidents involving the modified ET-PLUS units have resulted in serious injuries and fatalities, when the ET-PLUS units malfunctioned. This loss of life and limb did not occur before Trinity made the undisclosed modifications."

Trinity ‘Made Millions… At the Expense of Virginia and Her Taxpayers’

Earlier this year a federal case against Trinity brought by a competitor of the guardrail company. In that case, Trinity was found by a jury to have defrauded the government on similar grounds as Herring’s, and was ordered to pay $175 million, a figure expected to triple by statutory mandate. Both sides have been ordered into mediation before the end of the year.

The Virginia complaint also slams the company for not disclosing five crash tests in 2005-2006 in which the ET-Plus fails each time, including spearing the vehicle or flipping it over. Video of the tests, played in the federal trial, were first shown on ABC News.