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.
Trinity has said that those tests were performed on an "experimental" guardrail system, and therefore the results didn't require disclosure to the government. The company also has maintained that the modified guardrails on the roads are safe and said that ongoing safety tests, ordered by the federal government the Texas decision, will prove it.
The state is seeking damages to cover the cost of removing and replacing every modified ET-Plus currently installed on Virginia roads as well as penalties.
"Trinity ... made millions in revenue from this defective, unapproved and improperly tested product at the expense of Virginia and her taxpayers," the complaint reads. "[Virginia Department of Transportation] is preparing a contingency plan to identify and replace these products if necessary and appropriate testing and analysis shows them to be unsafe. If any replacements must occur, we're going to make sure that Trinity, not Virginia taxpayers, pay the bill."
Trinity flatly denied it had committed fraud against the state.
“We are surprised and deeply disappointed the Commonwealth of Virginia chose the lawsuit path,” a statement from Trinity said. “We are in the process of conducting the eight tests requested by the FHWA, which includes the two tests specifically requested by Virginia. We have given them all the data they have requested. We will continue to work with them. We will defend ourselves fully against these allegations.”
Virginia was the first state to announce it would be removing the ET-Plus from its roadways, contingent on new information about the guardrail system, and a spokesperson for VDOT today told ABC News it has called for contracting bids to potentially replace the devices. The bid process is expected to take through the end of January, with the intent of replacing end terminals found on the state's high-speed highways first.
Inside the New Guardrail Crash Tests
The Virginia action was announced the day after long-awaited crash tests got underway in San Antonio.
Eight crash tests of the modified, 4-inch ET-Plus, were requested by the Federal Highway Administration after the verdict in the federal whistleblower case and a growing number of states announcing they would no longer install the end terminal on highways. Currently, more than 40 states have halted use of the 4-inch ET-Plus, many waiting until results of the crash tests are released.
An ABC News reporter was one of two journalists allowed to observe the first test conducted on Wednesday. The test, in which a pickup truck hits the end of the guardrail at a fifteen degree angle at 62 miles per hour, was conducted with a group of observers from federal and state transportation departments. Observers were kept at a distance of about 150 yards from the test guardrail. Upon impact, the end of the guardrail folded to the side, allowing the truck to continue on, parallel to the guardrail, before coming to a stop at a tree nearby.
An FHWA observer briefing the media afterward said the ET-Plus appeared to have performed as expected, saying "nothing remarkable" occured and that it "looked like it passed and moved exactly as you expect it to."
"We will still have to wait for all of the results to come back in," said Tony Furst, Associate Administrator for Safety at the FHWA. "We're not going to make any conclusions or base any determinations just on the visual data itself."
Furst was also pressed about why the dimensions of the ET-Plus units being tested have not been disclosed to the public. An ABC News reporter was denied access to the end terminals in order to measure them and requests to see the units closely before testing were also turned down.
Although the crash tests have been shrouded in secrecy - amid high security and a requirement that the limited number of observers shed all cell phones or any recording devices - a local news helicopter still managed to capture the fifteen-second test from above, giving the public a long-awaited view of the infamous ET-Plus in action.
The second test, scheduled for Thursday, was postponed until Friday due to rain.
[Editor's Note: This version of the report has been updated to clarify that the Virginia Department of Transportation's stance on removing and replacing the ET-Plus system depends on new information it may receive by the VDOT.]