Represented by Public Justice, The Safety Institute and The Center for Auto Safety are seeking public access to sealed court records in United States ex rel. Harman v. Trinity Industries, the qui tam litigation that alleges the government was defrauded when it purchased certain modified guardrail end-terminals that are used throughout the country.
”Documents filed under seal in this action are of immediate importance to the motoring public as well as state and federal DOTs” said Sean Kane, The Safety Institute’s founder and president of the board of directors. (View Brief in Support of Motion to Intervene PDF| View Brief in Support of Motion to Unseal PDF | View Motion to Intervene | View Motion to Unseal )
In 2002, Trinity began to make modifications to their original ET-Plus end terminal guardrail design in a way that was not reflected in the record on which its federal approval was based. The Harman federal whistleblower lawsuit alleges that Trinity defrauded the government by reducing the height and length of the Feeder Chute Assembly without informing the Federal Highway Administration (FHWA) of those changes, as required. The ET-Plus guardrail end terminal is also the subject of numerous lawsuits nationwide alleging that the design failed to properly ride-down the energy in a crash. In some cases, the guardrails acted like spears piercing vehicles and causing serious injuries to occupants.
Fellow movant, Clarence Ditlow, Executive Director of The Center for Auto Safety said, “Changes made to the Trinity E-Plus guardrail ends affect the safety of motorists in crashes. Understanding those changes and why they were made is vital to understanding why failures occur in the real world.” The Center for Auto Safety is an organization that informs and advocates for consumers about auto safety issues.
As a result of field performance concerns associated with guardrail end-terminals, The Safety Institute is currently researching and studying these devices. The study will examine severe and fatal injury crashes that occurred as a result of impacts with the end and/or face of guardrail terminals, with the objective of analyzing the in-service performance of guardrail end terminals between 2005 and 2014, including the ET-Plus. Initially, this study will incorporate a statistical estimate of the relative risks of fatal and serious injury crashes involving each of the widely used guardrail end terminals in two states. The research study is ongoing and is expected to be released this year.
The discovery of modifications to the ET-Plus touched off a controversy involving the manufacturer, the FHWA, and state departments of transportation. Under its own guidelines and criteria, the FHWA has the authority and discretion to evaluate the performance of guardrail terminals in service. To date, however, the FHWA has not voluntarily evaluated the ET-Plus performance in the field, despite the agency’s recognition in 2012 of legitimate concerns about the product. Specifically, Nicholas Artimovich II, a highway engineer from the FHWA’s Office of Safety Technologies, conceded to other agency engineers that there were “valid” questions about the ET-Plus’s field performance compared to that of earlier versions.
“The public’s interest in these court records is especially strong because the ET-Plus may be lethally dangerous,” said Leslie Brueckner, Public Justice Senior Attorney. “Trinity shouldn’t be allowed to hide the truth by sealing records in a public lawsuit.”