Feds Open Website for Public Reporting of Guardrail Flaws

A U.S. highway regulator opened an Internet portal this week allowing the public to report accidents tied to a Trinity Industries Inc. guardrail system, which has been linked by lawsuits to at least eight deaths.

The Federal Highway Administration’s move is the latest sign of intensifying government scrutiny of Trinity and its shock-absorbing guardrail end-terminal, the ET-Plus. Drivers and their families have claimed that the system can seize up on impact, spearing cars instead of giving way as intended.

Earlier this month, the highway agency told U.S. lawmakers it would consider mandating additional crash tests on the system if it finds the current round, which started Dec. 10, isn’t sufficient. One of those lawmakers, Senator Richard Blumenthal of Connecticut, said he plans to press Trinity in the new year for accountability over undocumented changes it may have made to the ET-Plus.

Blumenthal, a Democrat, has joined the FHWA in asking whether Dallas-based Trinity quietly adjusted the dimensions of its system. Such a revision would represent the third version of the end-terminal since Trinity introduced it in 2000. The company admitted once already to changing the ET-Plus in 2005 and not telling the agency. It has denied allegations in lawsuits that the modified, second version poses an unnecessary danger to crashing cars by locking up when hit.

More recently, to address that allegedly lethal flaw, Trinity began making yet another undisclosed version of the system, two guardrail industry professionals asserted in a Dec. 12 Bloomberg News article. It is the possibility of a third iteration that has attracted the attention of Blumenthal.

“I’m very concerned about a potential third version that may, in effect, conceal or cover up defects in the other versions that are still out on America’s roads,” Blumenthal said in a Dec. 18 interview. “The possibility of additional changes raises the specter that what we thought was bad, could be even worse.”

In a Dec. 24 response to questions about the government focus on whether it had made more modifications, Trinity didn’t address the specific dimension industry professionals said had changed. The company has said that, since 2005, it has disclosed to regulators all adjustments to its guardrail system, and this week stated it is in regular communication with the FHWA and that the current crash tests of its product are appropriate.

Any possibility that Trinity hid an alleged safety problem may deepen uncertainty on which of the hundreds of thousands of its systems lining U.S. roadways may have a deadly fault.

It could also raise questions about what Trinity told the FHWA, an agency whose sign-off on highway safety gear can help steer hundreds of millions of dollars in taxpayer reimbursements to their manufacturers. And it could pose a challenge to the effectiveness of the agency’s current scheme for vetting the safety of highway devices.

In November, the FHWA approved Trinity’s plan for running new crash tests on the ET-Plus system, as requested by the agency. Those tests are due to be completed in January.

Blumenthal and other lawmakers have criticized the tests, saying they aren’t rigorous enough to fully vet the product’s safety. Blumenthal – chairman of the Senate’s Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security – said he will continue to push the FHWA to require more testing, including of any would-be third version.

The regulator, a unit of the U.S. Department of Transportation, said in a Dec. 9 e-mail to lawmakers that it may order additional tests if it decides the ET-Plus has vulnerabilities beyond the current review.

The standards guiding the ongoing crash tests are “appropriate,” Trinity said in an e-mailed statement, explaining that they’re the same ones to which the system has always been designed, manufactured and tested.

The FHWA’s efforts to determine whether a third version may be in use included a public call Dec. 24 for information about crashes involving the ET-Plus, and measurements of the device as found on roadsides. The request, published in the Federal Register, specifies several “key dimensions” in which the regulator is interested, including those highlighted in the recent Bloomberg News report.

Trinity has said that accurately measuring dimensions of its system requires technical expertise.

Also on Dec. 24, the highway agency sent a letter to the Trinity unit that makes the ET-Plus, asking for records that address whether manufactured ET-Plus systems met the company’s quality requirements. The request is part of the agency’s analysis of “the dimensions and manufacturing tolerances of the ET-Plus,” according to the letter.

Trinity, in a response to questions about the letter, said it’s in regular contact with the FHWA.

’’The product being tested represents what is on the highways today,’’ Jeff Eller, a spokesman for Trinity, said in the Dec. 24 statement.

Trinity’s ET-Plus system began gaining nationwide scrutiny earlier this year, as a legal battle peaked between the Texas company and a competing guardrail maker.

Joshua Harman, who helps run two companies that install and manufacture guardrail systems, alleged in a 2012 whistle-blower lawsuit that Trinity changed the ET-Plus’s dimensions in 2005 without alerting the government. Harman, as well as plaintiffs in injury and wrongful death suits, allege that the modified ET- Plus was prone to a potentially deadly malfunction.

Trinity has said information about the 2005 revisions was inadvertently omitted in its filings with the government, and that the changes didn’t affect the unit’s safety.

The legal fight between Harman and Trinity was the subject of a June article by Bloomberg News and subsequent reports on ABC’s 20/20 and in the New York Times.

Since June, at least nine more related personal injury or wrongful death suits have been filed against the company, nearly doubling the total number.

During that same period, more than 40 states and the District of Columbia halted ET-Plus installations, the company has stopped shipping the product and at least 17 states have said they will inventory their existing ET-Plus systems.

Trinity has said it will “respond in the appropriate manner” to the additional litigation.

In October, a federal jury in Texas found in Harman’s favor, holding that Trinity made false claims about the ET-Plus and duped taxpayers out of $175 million – paid out by the U.S. government to reimburse states that bought the systems. Trinity has said it will appeal the verdict.

Following the decision, the FHWA required Trinity organize the crash tests that started earlier this month. Soon after, questions began to be asked about which version of the ET-Plus was being tested.

On Nov. 12, Blumenthal sent a letter to the FHWA mentioning his concerns that Trinity had made more secret revisions since 2005. Bloomberg News reported a possible third alteration in December, citing Harman and Dean Sicking, a guardrail system inventor.

The claims by Harman and Sicking speak to dueling interests and changing loyalties in the roadside safety business.

Sicking was a co-creator of technology used in the ET-Plus system and received royalties from it. He now receives royalties from sales of the ET-Plus’s main competitor, which he also helped develop, and he was a paid consultant for Harman’s side in the whistle-blower litigation.

Harman, meanwhile, could stand to collect more than $130 million if the Texas jury’s finding survives challenge.

A longtime buyer and installer of Trinity’s products in Virginia, Harman began making copies of the ET-Plus several years ago, saying he mistakenly thought the patents had expired.

Trinity sued him for patent infringement in 2011. Virginia required Harman to remove 280 generic copies he had installed in the state. Harman said he subsequently stopped making them.

During the patent suit, which ended in a confidential settlement, Harman began researching Trinity’s product. At crash sites, Harman said, he discovered that ET-Plus terminals that had malfunctioned during accidents didn’t completely match the versions he had been copying.

The ET-Plus system includes a steel device with an internal slot that fits around the end of a guardrail. When hit by an out-of-control vehicle, the unit pushes back along the W-shaped guardrail and forces it through the narrow slot – a flattening process that absorbs some of the crashing car’s energy. The design is meant to bring the car to a safer stop than if it had run into a guardrail’s naked end.

The 2005 changes to the system that Harman discovered shrunk some of the device’s dimensions. Those modifications made it more likely the guardrail would get stuck instead of moving through the slot, Harman alleged in his lawsuit.

Following the latest assertions that Trinity began making a third version to address that issue, the manufacturer has said in e-mailed statements that it never changed the steel component that moves along the guardrail and flattens it during a crash.

Sicking and Harman have asserted that Trinity changed a dimension in a different component – increasing the height of a rectangular piece called the guide channel – which feeds the guardrail into the slot.

When asked if the company had increased the guide channel’s height, Eller, the Trinity spokesman, referred to a previous statement saying the company has disclosed to the FHWA all modifications to the ET-Plus system since 2005.

The highway agency has said that previous reviews of crash test results, national accident data and survey responses from state transportation departments didn’t reveal performance problems with the ET-Plus. It is still reviewing information, including concerns flagged by Missouri and data provided by Harman on 231 crashes involving the system, the FHWA said.

When asked about the possible third version in November, the agency said it was aware of the claims. It said that its engineers were measuring Trinity systems on the nation’s highways to help determine if their dimensions fell “beyond the production tolerance.”

That information is due in January, the regulator has said.