October 27, 2014
Last Monday, a federal jury in Marshall, Texas forced the Federal Highway Administration to do what state directors of transportation could not – launch an investigation into the crashworthiness of the ET-Plus guardrail end terminal. The agency, which, two years ago accepted Trinity Industries’ old test reports and spent most of its efforts deflecting the concerns of state highway officials and the questions from journalists, ordered the Texas-based manufacturer of highway safety equipment to submit to a new testing regime.
But, the lead designer of the ET-Plus end terminal’s predecessor the ET-2000 and the attorneys for Joshua Harman, who sued Trinity on behalf of the U.S. government, have written to the FHWA urging the agency ensure that the end terminal is tested in a configuration that mimics the way it has failed in the field.
Harman, the president of SPIG, 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.
Among the damning evidence in the trial were five test videos showing the re-designed ET-Plus end terminal catastrophically failing and a November 9, 2004 email authored by a retired Trinity vice-president, Steven Brown. He proposed changing the guide channel from five inches to four to make the terminal eight pounds lighter and save $2 a unit, without telling the FHWA, as it is required to do: “If [the Texas Transportation Institute] agrees, I'm feeling that we could make the change with no announcement.” TTI, an arm of Texas A & M University, invented the ET-2000 and the ET-Plus, and was responsible for conducting the testing that would be submitted to the federal government in support of its application for approval. TTI agreed to the change without telling the government, and drafted a test report that failed to reference the change to the guide channel and other changes to the original design, first approved in 1999. Trinity President Gregg Mitchell testified that Trinity had no meetings to discuss the dimension changes and performance issues with the ET-Plus, and did no evaluations of the product.
On the eve of the qui tam trial, the FHWA directed each of its field administrators to immediately gather ET-Plus crash data from state Departments of Transportation. After the jury found Trinity guilty of fraud and awarded the U.S. government trebled damages of $175 million, the agency directed Trinity to submit a plan for additional crash testing by Friday, or risk having its acceptance letter revoked. The agency specified that the testing be performed by a nationally accredited testing facility, excluding the TTI. In addition, whichever testing facility is chosen could not have ever tested the ET-Plus previously and was required to disclose any financial interests it has in roadside safety hardware. Trinity announced that it has stopped all shipments of ET-Plus end-terminals until the testing is completed.
The FHWA is requiring 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.
It is the omissions in the test protocol that have alarmed Dr. Dean Sicking, who designed the ET-2000 while at the Texas Transportation Institute, now at the University of Alabama at Birmingham School of Engineering. He deemed “the most egregious behavior by Trinity Industries was not their failure to adequately test the ET-Plus. Instead, the primary deception perpetrated by Trinity and TTI was hiding the failed crash test results of low angle, head-on, and offset-impacts of the very ET-Plus that was installed across the nation.”
At trial, one Trinity executive testified that the videos only showed an experimental prototype that was eventually abandoned before production. But, Sicking, an author of the test guidance document, NCHRP Report 350, noted that Trinity has an obligation under the NCHRP guidelines to test the ET-Plus end terminals “under any critical impact conditions that the developer identified any time during the life.” In other words, the field failures, plus the crash videos showing the end-terminal malfunctions, demand that Trinity must specifically re-test in that configuration in which it failed.
Sicking pointed out those tests were far from irrelevant, as Trinity characterized them. They showed a critical deficiency in the performance of the guardrail head:
I suspect that neither Trinity nor Texas Transportation Institute has – to this day – informed FHWA that five full scale crash tests were unsuccessfully conducted on the ET-Plus head. These tests were ostensibly conducted in an attempt to gain approval of the ET-Plus use in a flared configuration with a 4 ft. offset over the last 50 ft. Because there was no deformation of the guardrail anywhere outside of the flared region, these tests were equivalent to testing the straight ET-Plus in an end-on, offset configuration at an angle of approximately 4.5 degrees. These are the conditions that appear to be causing the catastrophic failures that have been widely reported in the press. The unacceptable performance of the ET-Plus for these impact conditions was known to both Trinity and TIl prior to the original 2005 letter requesting approval of the ET-Plus for use with MGS guardrail. Two of the five failed tests were conducted prior to the submission of that letter. If FHWA wants to assure the motoring public that the ET-Plus will perform adequately when placed on the highway, it is important that it be tested under those conditions.
Attorney George Carpinello of Boies, Schiller & Flexner LLP, who represented Harman during the qui tam trial raised the same concerns. In his letter to the FHWA, Carpinello also pointed out that crash testing alone “is not enough to determine the breadth of Trinity's false representations, or more importantly, the danger posed by the ET-Plus to the motoring public. Through discovery and expert analysis in the Harman action we have learned that Trinity has placed on the highways ET-Plus end terminals with multiple and varied internal dimensions, all of which potentially impact the performance of the ET-Plus in real-world crashes. There is no question that these variations substantially impact performance.” Carpinello argued that his expert had documented differences in installations nationwide, limiting the value of crash tests.
He also took the agency to task for giving Trinity the option of submitting its documentation confidentially: “as I am sure you are aware, both the NCHRP 350 and the [Manual for Assessing Safety Hardware] protocols make it clear that crash testing alone is insufficient to determine whether a safety device works properly in service. Specifically, NCHRP 350 at § 2.1 makes it very clear that "the evaluation process should not stop with successful completion of tests recommended herein. In-service evaluation of the feature is perhaps more important than crash test evaluation and should be pursued as recommended in Chapter 7.”
So far, at least 13 states have dropped the ET-Plus from their list of approved highway safety equipment or suspended further use until the FHWA completes its investigation: Nevada, Vermont, Colorado, New Hampshire, Missouri, Massachusetts, Hawaii, Virginia, Oregon, Connecticut, Louisiana, Mississippi and Arizona.
William Boynton, a spokesman for the New Hampshire DOT, noted that “at this time, the NHDOT has no direct evidence that the terminal is ‘flawed.’”
On June 8, an Ohio couple was southbound on I-93 in Ashland New Hampshire, when the sedan left the roadway and struck an ET-Plus guardrail, which penetrated the Subaru Impreza at the passenger side wheel well, slicing the driver and her companion in the legs and knees. Both sustained serious injuries, requiring long hospitalizations and have undergone multiple surgeries to repair the damage.
Boynton said the NHDOT was aware of that crash.