FHWA Pulls a NHTSA on Guardrails

Wednesday, the Federal Highway Administration announced some big, big news: Trinity Industries will test its ET-Plus guardrails in a way that virtually guarantees a passing grade, thereby ensuring that the agency’s past decisions are validated.


The Safety Record confesses those were not the agency’s exact words. The FHWA said:

Trinity would not be required to test the ET-Plus at a low-impact angle, which happens to be the mode in which the guardrail terminal system is failing in the field. Further, the FHWA would allow Trinity to select the end terminals and the testing would be done by the Southwest Research Institute.

Origins of the New Tests

FHWA demanded that Trinity run new tests on the ET-Plus guard rail end terminals after a federal jury in Marshall, Texas found that Trinity, a global manufacturer of highway safety equipment, defrauded the federal government in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the Department of Transportation and the Virginia guardrail competitor who brought the suit on behalf of the United States government $525 million. At trial, the jury viewed five test videos showing the re-designed ET-Plus end terminal catastrophically failing in low-impact angle tests.

Joshua Harman, the president of SPIG, a competitor, sued Trinity under qui tam provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. Harman had charged that Trinity modified the design of its original guardrail end terminal design, the ET-Plus, causing it to fail in crashes and injure and kill occupants in striking vehicles.  The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the width of the guide channel, or “feeder chute,” through which the rail is extruded. Harman alleged that the rail jams in the narrower channel, causing it to fold in half, forming a spear that can penetrate the occupant compartment. In his suit, Harman alleged that Trinity changed the design without notifying the FHWA, as required, until seven years later, when he brought his concerns to the agency.

In response, the FHWA required Trinity to subject the ET-Plus end terminal with the 4-inch guide channel to four different tests set forth by the National Cooperative Highway Research Program (NCHRP), using three different guardrail heights. This immediately rang alarm bells for Harman’s attorneys and Dean Sicking, who designed the ET-Plus’ end terminal’s successful predecessor ET-2000 while at the Texas Transportation Institute. (He is now at the University of Alabama Birmingham School of Engineering) Both fired off letters to the FHWA urging it to test the ET-Plus in a configuration that mimics the way it has failed in the field.

Saving Face for the FHWA

Wednesday’s announcement signifies that the FHWA is incredibly determined not to rock its own boat. The TTI has already proven that the 4-inch ET-Plus end terminal cannot pass a 4-5 degree, low-impact angle test, but the FHWA is not requiring this test.

Further, allowing Trinity to select the terminals for testing means that they can simply avoid terminals with the critical dimensions that have failed in service – such as those that failed in crashes that the Missouri Department of Transportation provided to the agency. Requiring a 15-degree centered-to-nose impact is a high-angle impact test is not representative of the run off the road crashes that are most common and the way a low-impact angle test does.  The Trinity ET-Plus is likely to pass the high-angle test along with the head-on impact. 

The FHWA specifically forbade the TTI from conducting these new tests. But, the SRI is a good substitute. The SRI and Trinity have longstanding financial ties via seven patents going back to the late 1990s. SRI engineer and inventor Maurice Bronstad developed several improvements to energy-absorbing guardrail systems, including crash cushions, impact assemblies and end terminals, which were assigned to the TRN Business Trust, an arm of Trinity Industries. So Trinity has been paying the SRI to license these devices and paying patent royalties to Bronstad for years. Bronstad, now retired, and was a favored Trinity expert in civil litigation.

Pretend Safety and Science

We’ve seen this movie before. It doesn’t end well for motorists.

The National Highway Traffic Safety Administration has an epic formula on how to look like you are scaling Safety Mountain, when you are really just edging past the cliff of your reputation’s abyss. Take one part respected outside entity, one part active participation by investigation’s target and one part private entity with financial ties to investigation’s target. Mix together with inadequate test protocols and season with science-y numbers and language, bake in white-hot media glare and you get statements like this:

“Today, we can say clearly and affirmatively that NHTSA, America's traffic safety organization was right all along,” so pronounced our esteemed former Secretary of Transportation Ray LaHood on February 8, 2011“Toyota's problems were mechanical, not electrical. And that comes after one of the most exhaustive, thorough, and intensive research efforts ever taken… So let's be clear. The jury is back. The verdict is in. There is no electronic-based cause for unintended, high speed acceleration in Toyotas. Period.”

In August 2009, after California Highway Patrolman Mark Saylor crashed his loaner Lexus at high-speed on a Santee, California Highway, NHTSA was under heavy pressure to respond to the growing Toyota Unintended Acceleration crisis. The agency already had a series of brief, failed investigations into the defect. Toyota successfully argued that there was no way their vehicles could accelerate without a direct command from the driver – and even with a wide-open throttle, the vehicle remained controllable with braking. But the public release of the disturbing 911 tape, in which the panicked occupants described Saylor’s inability to stop the vehicle, meant that the same-old, same-old open investigation, close eyes, accept the manufacturer’s BS, deny the defect was not going to work this time.

In the wake of painful Congressional hearings and daily news stories, NHTSA had to look like it had gotten Serious. It hired the National Aeronautics and Space Administration’s Engineering Safety Center (NESC) to plumb the technical depths and engaged the National Academies of Science to examine the broader issues surround unintended acceleration and the agency’s response to it. The NESC and NHTSA teams came up with two reports that did not examine the problem under a clear scientific process. For example, despite the high frequency of low-speed surges and crashes, the engineers did not study UA in that scenario. The teams purported to study high-speed UAs, but never examined a vehicle that had experienced such an event. They did not examine the entirety of Toyota’s source code, just pieces of it. Nor did the teams engage independent engineers with expertise in vehicle engine management design, validation and testing to assist them. They, did however, allow Toyota and Exponent to guide the research.

Later, it turned out, NHTSA was “affirmatively and clearly” wrong all along. Embedded software expert Michael Barr and his team hacked their way through the jungle of Toyota’s spaghetti code and found a hot mess. Barr’s testimony in Bookout v. Toyota led the jury to determine that the automaker acted with “reckless disregard,” and delivered a $3 million verdict to the plaintiffs — but before the jury could determine punitive damages.

In September 2007, Jean Bookout’s 2005 Camry experienced an unintended acceleration as she exited an Oklahoma highway. Bookout could not stop her vehicle, which crashed head on into an embankment at the bottom of the exit ramp. Passenger Barbara Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries.

Barr spent nearly 20 months reviewing Toyota’s source code at one of five cubicles in a hotel-sized room, staffed by security guards. Based on his 800-page report, Barr testified that the system was plagued with “a large number of functions that are overly complex,” and was untestable. He concluded that the system’s failsafes are inadequate.

“On the whole, the safety architecture is a house of cards,” he said.

Barr’s testimony has forced the automaker to hastily settle all subsequent catastrophic damages claims. But, Toyota’s UA problems continue. Drivers are still complaining. NHTSA is currently evaluating a petition to open an investigation into low-speed surges in Corollas.

Blumenthal on the Case

Sen. Richard Blumenthal (D-Conn.) has been hammering the FHWA with letters and press releases questioning the agency’s approach to this new round of testing. He called on the FHWA to improve the testing protocol outlined yesterday to ensure the safety of potentially dangerous guardrails.

“I am very concerned that the testing protocol you’ve prescribed is woefully inadequate and far too deferential to Trinity.  It’s imperative that the testing be open, thorough and credible,” Blumenthal wrote in a November 12 letter.

The Senator also chastised the agency for foregoing the more up-to-date AASHTO Manual for Assessing Safety Hardware (MASH) protocols in favor of those of the NCHRP Report 350.

It is unacceptable that FHWA is relying on the outdated NCHRP to approve this device. The ET-Plus has never convincingly passed safety tests, so FHWA should use the latest testing standard as FHWA is essentially approving this device for the first time today, in 2014 – not 2005, when NCHRP was effective. The MASH testing framework will ensure the device is safe enough for today's roads, as it relies on testing with a sufficiently heavy vehicle and a sufficient variety of angular impacts, Moreover, MASH also has other important methodologies. MASH states that “if a significant window of vulnerability” is identified for any given design, the test matrices should be supplemented to explore the additional impact conditions." For the ET-Plus, this “window of vulnerability” would include the conditions under which the device is known to fail, i.e., at an impact angle of four degrees or greater, and MASH would ensure the device is properly tested at those angles, representative of real-world crashes, Finally, MASH requires that "[e]ach device must be tested at the impact angle that will maximize the risk of test failure," further ensuring adequate testing.

In a reply to Blumenthal, Acting Administrator Gregory Nadeau cast the whole episode as a foofaraw ginned up by Josh Harman. Nobody complained, Nadeau maintained, until Harman did. This argument is disingenuous on multiple fronts.

First, states did not complain because, in general, they don’t collect guardrail crash data. While NCHRP advises states to evaluate the field performance of highway safety hardware, it’s not a requirement and most state DOTs don’t have the budget or expertise to conduct these analyses. The FHWA, which would have the resources, doesn’t either. It’s content to rely on one set of crash test data and call it done. Nadeau’s pitiful statistical defense to Blumenthal, the FHWA’s exhaustive look at 14 crashes from the National Motor Vehicle Crash Causation Study, is not a substitute for actual fact-finding or a sound scientific study. (And where’s the industry accountability, Mr. Nadeau? Trinity Industries defrauded you and your response is to give them an easy do-over?)

Second, some people have complained – those would be the victims with the artificial legs and the families of vehicle occupants who were killed by their encounter with an ET-Plus end terminal.

Nonetheless, Nadeau wrote, the agency would give the matter its full attention:

“Please be assured that we are proceeding in a data-driven manner—our goal is to separate fact from fiction by using the best science and engineering to reach a conclusion about the performance of the ET-Plus and to take informed steps based on the data.”

Mr. Nadeau, we are not assured.