Parker Waichman LLP is reviewing claims concerning accidents involving road and highway guardrails. Some specific guardrails have been the culprit in a number of serious and deadly accidents in which people have suffered amputations and death when the guardrails have punctured through vehicles.
Feds Support Guardrail Study
Federal officials say they support a nationwide study of guardrails to determine if the guardrails are as safe on the roads as they seemed to be in crash tests, according to an ABC News report. Federal Highway Administration (FHWA) official, Nicholas Artimovich told the news outlet that, “We are supporting a national cooperative highway research program to look into the performance of guardrail terminals.” The guardrail study will be conducted by a group of public and private highway engineers and experts, said Artimovich.
At issue, the federal official said, are the guardrail heads, which are also known as end terminals. The study seeks to determine if end terminals are able to absorb the impact of a head-on crash up to 62 miles per hour “in the real world,” which is what they were designed to do.
Revised Guardrails Pose Injury, Death Hazards
The ET-Plus is meant to “sweep” a vehicle off to the side in a crash, according to ABC15. The revised ET-Plus, in a crash, will lead the guardrails to pull up and ram through the vehicles, according to lawsuit allegations. The original ET-2000 allegedly did not respond in this way in a crash.
A recent study determined that a re-designed guardrail end terminal “placed motorists at a higher level of risk of both serious injury and fatality” than the original end terminal. The research was sponsored by the state of Missouri and the non-profit advocacy, The Safety Institute, and was conducted by the University of Alabama Birmingham. The study looked at serious and fatal accidents in Missouri and Ohio. “This is an important first step in understanding the actual field performance of this product,” Sean Kane, president of the board of directors of The Safety Institute, told ABC. Kane also told ABC News that, “We are seeing on-road failures that shouldn’t be happening…. I have real concern about leaving them on the highways.”
A Missouri state spokesman said that the state asked for the study “upon learning of concerns with the effectiveness” of the re-designed end terminal that is called the “ET-Plus.” The final report is pending.
Trinity Industries Inc. is considered one of the largest guardrail end-cap manufacturers. The ET-Plus Guardrail is a safety feature on the end-cap. In a crash, the guardrail is supposed to be forced through the ET-Plus and diverted from the vehicle. In 2000, the ET-Plus Guardrail was crash-tested and approved for use on highways.
Guardrail Injuries, Lawsuits
Trinity Industries faces mounting lawsuits over accidents that involved deaths and leg amputations fo llowing vehicular crashes into guardrails, specifically the new ET Plus end terminal. The ET Plus passed safety crash tests and met federal standards, the FHWA indicated; however, crash-tested guardrails may play a part in deadly accidents, officials note. “We’re interested in looking at how these devices perform in the real word after they pass crash testing,” Artimovich stated.
Guardrail accident victims allege that modifications were made to the original guardrail design, such as a one-inch reduction in one metal piece from five to four inches. Victims claim this reduction turned the guardrails into deadly roadside hazards. Trinity Industries argues that its guardrails meet all safety standards, that the slight changes did not affect the product’s performance, and that it is confident in the guardrail’s performance.
Dean Sicking, the inventor of the original design, told ABC News that the Trinity changes made in 2005 were made without his knowledge. The original guardrails, according to ABC News, are believed to have saved hundreds of lives since they were introduced in 1999. “I was not involved in that change, and never really understood why they did it,” Sicking told ABC News.
ABC News obtained internal Trinity emails that reveal that company engineers found that by leaving off one inch in a critical piece of metal, a savings of about $2 per terminal would be achieved. According to the Trinity memo, “That’s $50,000 a year and $250,000 in 5 years by using the 4″ channel.” Trinity maintains that the changes were not made to increase profits.
According to ABC15, a 39-year-old Tennessee woman died from severe organ damage and bleeding following a crash into a guardrail end terminal that punctured her car and her torso. In 2010, a 20-year-old New York woman lost a leg after a guardrail punctured her driver’s side door. A 20-year-old Florida man suffered a leg amputation following guardrail puncture of his vehicle. And, a 24-year-old man in North Carolina was involved in an accident in which the guardrail skewered into his car and pushed him into the passenger-side backseat, according to a Bloomberg Businessweek report.
In a 2012 deposition, Trinity said that the changes it made to the guardrail end terminal were cosmetic and did not mandate new approvals as guardrail performance was not impacted. Trinity alleges that it did not sell the revised products until crash testing was completed in 2005 and the FHWA “issued its letter of acceptance.”
In May 2014, product safety advocacy group, Safety Research & Strategies Inc. (SRS), filed separate lawsuits that seek records related to the ET-Plus from both the Department of Transportation’s Federal Highway Administration and the Florida Department of Transportation. SRS alleges “broad performance anomalies” with the ET-Plus.
ABC15 wrote that the guardrails have been blamed for four deaths and nine injuries in Texas, Tennessee, Florida, and Virginia, citing nationwide lawsuits. At least eight lawsuits or attorney generals’ complaints were also filed against Trinity Highway Products, all citing the alteration to the end terminal, which appears to cause the guardrail to perform inappropriately.
ET-Plus Guardrail Whistleblower Lawsuit
One previously filed whistleblower lawsuit alleges that Trinity Industries changed the design of the ET-Plus Guardrails, which according to lawsuit allegations, resulted in the guardrail not bending and absorbing crash impact, but, rather, caused the guardrails to operate like a spear on impact.
Lawsuit allegations also include that, in 2005, Trinity secretly re-designed the ET-Plus by cutting down the size of the feeder chute, which makes the guardrail likelier to jam and impale an oncoming vehicle, not deflecting, as it was originally meant to. In addition to reducing the head width from five to four inches, the feeder channel’s height was reduced to 14-7/8 inches from 15-3/8 inches.
In particular, the lawsuit alleges the following: “Once throat locked, the energy of the crash is diverted elsewhere usually causing the guardrail to double over on itself or protrude through the crashing vehicle. If the guardrail and head assembly protrude like a spear through the vehicle, the inevitable result is usually death or serious bodily injury to the persons in the vehicle.”
FHWA safety officials maintain that they were not aware of the ET-Plus design change until after a lawsuit was filed in early 2012. That lawsuit was pending in federal court in Texas. Although Trinity stands by the safety of the re-designed ET-Plus Guardrail, the new design was, allegedly, not tested to determine if its performance is equal to the original, tested and approved, guardrail.
States Beginning to Stop Sales of the ET-Plus Guardrail
Trinity continues to sell the ET-Plus nationwide; however, some states are beginning to remove the guardrails from their lists of approved products.
As part of their investigation, Scripps reporters learned that the Nevada Department of Transportation (NDOT) removed the ET-Plus model from its approved products list. “A change made to the size of the guard channels on the ET-Plus was not reported to NDOT, as required by our policy,” Meg Ragonese, the public information officer for NDOT wrote in an email.
In Florida, the ET-Plus has been recertified every two years since 2005. In each event, wrote ABC15, Trinity indicated, in writing, that no major change was made to the ET-Plus.
In Nevada and Florida, the DOTs require companies to tell transportation officials about any changes made to products approved for use on highways. Although Florida has not taken action, State Representative Irv Slosberg indicated he would urge for a probe into the matter.
The Missouri Department of Transportation (MoDOT) removed the ET-Plus from both its projects and its approved product list. The MoDOT indicated that 20,000 – 30,000 of the allegedly faulty guardrails have been installed in the state, according to Ozarks First. The state’s decision followed MoDOT observations and an investigation in which the agency cited safety concerns. “We have actually witnessed that failure mode on our roads and without knowing if that’s a fatal and severe injury crash problem—we have enough doubt to suspend this product until such as a time that we can be assured that it doesn’t have any elevated threat risk,” said Joe Jones, MoDOT Engineering Policy Administrator.
“What’s been alleged that we’re investigating is that the rail will bind up in the feeder shoot, the smaller feeder shoot, and instead of excreting cleanly off the side, all that energy goes down (sic) line the rail and then kinks the rail or then forces the rail to become a blunt end,” Jones added. Ozarks First wrote that The Safety Institute studied death and injury risk on various guardrails in Missouri and Iowa found that the ET-Plus was 2.86 times likelier to produce a fatality than its predecessor. The MoDOT says it is assessing where the ET-Plus guardrails are located on its roadways and indicated that it has not heard back from Trinity, but is trying to determine the cost for removal and replacement of the ET-Plus.
The American Association of State Highway and Transportation Survey Results
The American Association of State Highway and Transportation Officials (AASHTO), a Washington D.C.-based nonprofit representing all 50 state DOTs, issued a survey concerning guardrail end terminals. The surveys were sent to state DOTs in October 2012; 21 states responded. Three states indicated that guardrail end terminals were involved in crashes that led to deaths or injuries, two referenced the ET-Plus.
AASHTO Executive Director John Horsley has since recommended the FHWA re-review the ET-Plus. “This issue also brings to light a larger question of crashworthiness testing and whether a single crash test is good for a product’s entire life-cycle,” Horsley wrote in a December 2012 letter to an FHWA safety administrator. An AASHTO committee has earmarked $650,000 to independently test guardrail head safety, including the ET-Plus. The project, starting in summer 2013, is expected to take about three years to complete.
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