A company that manufacturers a large percentage of highway guardrails used in the United States is facing growing legal pressure to redesign and replace one its most popular products. The safety device in question, known by the brand name ET-Plus and manufactured by Trinity Industries, does not seem to work as intended and claimed because it underwent an undisclosed modification several years ago.
In the wake of a federal court jury ordering Trinity to pay the U.S. government at least $175 million to resolve federal False Claims Act violations, Virginia Attorney General Mark Herring announced on December 11, 2014, that he had filed suit against Trinity and its Trinity Highway Products, LLC subsidiary “for selling the Commonwealth of Virginia thousands of unapproved, improperly tested, and potentially dangerous pieces of highway guardrail equipment.”
Herring and his staff want Trinity to pay civil damages under Virginia’s own contracting fraud law and to cover the costs of identifying, removing and replacing ET-Plus guardrails. Officials do not know how many of the devices exist in Virginia.
According to an October 20, 2014, New York Times article reporting the initial federal whistleblower judgment against Trinity, the problem is that the company’s guardrails can malfunction when hit end-on. Here is how the newspaper described the issue:
The guardrail system works by collapsing when hit head-on, absorbing the impact of a vehicle and guiding the railing out of its path. The rail head or end terminal, which is often marked with yellow and black stripes, is supposed to slide along the guardrail itself, pushing it to the side.
But the redesigned Trinity product narrowed the channel behind the head, which can cause it to jam instead of sliding along the rail, some state officials said. When that happens, the rail can pierce an oncoming vehicle like a harpoon, endangering occupants.
The redesign being cited as the cause of at least 5 deaths in traffic accidents across the country saved Trinity an estimated $2 on each safety device. More than a dozen independent wrongful death and personal injury lawsuits have been filed against Trinity, and Virginia’s suit could become a multiparty legal action that includes other state governments that relied on the endorsements of both the Federal Highway Administration and Trinity when installing the apparently unsafe ET-Plus barriers.
The American Association for Justice, the leading national organization for lawyers who represent plaintiffs in civil lawsuits, has formed a subgroup of experts to study the legal issues raised by the problems with Trinity guardrails. Bedrock principles of consumer protection law should apply, but the multiple layers of federal and state liability for misrepresenting and selling potentially dangerous and defective products will surely complicate individuals’ efforts to secure compensation for preventable injuries and deaths. Considering the scope of the issue, Trinity ET-Plus guardrails could become a landmark in product liability event, like unsafe Firestone and Bridgestone tire blowouts or Toyota rapid acceleration cases.