Lawsuits claim highway guardrails impaled, killed drivers

Manufacturer says product is safe

SAN DIEGO - A common highway safety device is being blamed for deaths and injuries in lawsuits and by one man who calls himself a whistleblower.

"This product was never approved," Joshua Harman, a competing manufacturer of guardrails, said of the ET-Plus guardrails -- manufactured by Trinity Highway Products.

Trinity says the ET-Plus guardrail was approved by the Federal Highway Administration in 2005, before it was installed on highways.

Harman, who says he wants Trinity's current guardrail products removed from the market, has tussled with Trinity before. In 2009, Harman reverse engineered the ET-Plus system relying on advice from his attorneys, who he says told him the patents had expired. They had not, and Trinity's parent company sued Harman alleging patent infringement. The case was settled for an undisclosed amount.

Harman said when he reproduced the Trinity guardrail he discovered the product, which was already on U.S. roadways, did not match the specifications given to the government for approval.

The ET-Plus guardrail was first installed and approved by the Federal Highway Administration in 2005. Documentation provided by Harman and Trinity Industries shows that year, the FHWA approved the ET-Plus "for use on the National Highway System."

Harman claims in lawsuits and interviews the major difference between the ET-Plus and its predecessor is the size of the weld on each guardrail head.

*Click here to view the lawsuit against Harman

The ET-Plus measures four inches; its predecessor measured five inches. Harman claims the one inch difference results in a physically smaller guardrail, which provides less protection in a collision. Specifically, as Harman claims in lawsuits and interviews, the smaller ET-Plus guardrail head is more likely to fall off in a collision, transforming the guardrail into a spear.

"It's impaling vehicles, cutting legs off, cutting people literally in half," Harman said.

Harman's claims echo allegations in several lawsuits against Trinity's parent company. In one suit filed in 2012, a Florida man claims "a defective guardrail ... impaled him during a motor vehicle accident."

*Click here to view a lawsuit in Florida filed against Trinity

As of April 2013, the Florida court was considering Trinity's motion to dismiss the case.

Harman has posted pictures, documents and video, which he claims shows the dangers of the ET-Plus guardrail on a website. The pictures show ET-Plus guardrails impaling cars from engine block to tail lights.

Trinity Industries denies its ET-Plus guardrail is defective. The company is suing Harman for defamation, and it is asking the court to force Harman to take down the site.

"They try to intimidate me," Harman said. They've sued me in two states now. I'm sure they'll sue me in California, too. I will not stop."

Team 10 found 14 examples of ET-Plus guardrails on San Diego County highways. The highest concentration was found on Interstate 5 and state Route 78.

In a statement to Team 10, Trinity Industries said the only way to know how its ET-Plus guardrails perform in accidents is to know all variables, including the weight of the vehicle involved, the angle of impact, and the speed of impact. Trinity asserts accident pictures involving its guardrails do not accurately represent how the guardrail system performed.

Documentation provided by Harman and Trinity Industries -- and confirmed by the Federal Highway Administration -- shows the government did not know about all the design detail changes between the ET-2000 and ET-Plus, including the guardrail head size differential.

According to emails from the Federal Highway Administration, Trinity Industries "omitted from the documentation submitted to the agency on August 10, 2005" the "reduction in the width of the guide channels from 5 inches to 4 inches." The FHWA confirmed it did not know about the design change until 2012, seven years after the four inch ET-Plus was in use.

Trinity Industries claims the four inch ET-Plus was tested by the Texas Transportation Institute, an independent arm of Texas A&M University.

In a phone conversation with Team 10, Jack Todd, Trinity Industries vice president of public affairs, said the Federal Highway Administration certified the test in 2005, despite not knowing the new guardrail was smaller at the time.

In the same conversation, Todd told Team 10 the company made a mistake when it failed to tell government regulators about certain design detail differences between the five inch ET- 2000 and the four inch ET-Plus. He said the mistake was corrected in 2012, when Trinity alerted the FHWA of the omission including changing the guardrail head from five inches to four inches Todd said the FHWA has determined that the ET-Plus meets all federal specifications.

Harman said there are more than 600,000 four inch ET-Plus guardrails on highways across the United States. That is not a number easily verified because it is up to each state highway department which guardrails are installed on which roads, according to Trinity.

In Trinity's defamation case against Harman, which claims his allegations disparaging the four inch ET-Plus guardrails are false, he responds by saying Trinity "defrauded government agencies," "modified critical dimensions" of its guardrails and did not tell the FHWA.

A Caltrans spokesman told Team 10 it will take a look at the design change.

"Safety is our number one priority and we are looking into this matter," the same spokesman said.

A spokesman with the FHWA told Team 10 no one at the state level has complained about the four-inch guardrails, so there is no reason to investigate the change.

*Click here to view an email from the FHWA regarding Trinity's guardrail

The Federal Highway Administration provided the following statement to Team 10:

"When the ET-Plus guardrail was tested in 2005, the end terminal with the four-inch feeder channels met all crash test safety standards, and FHWA has received no complaints from states over the past seven years during which the guardrail has been used nationwide. Only in early 2012 did a competitor of the company that manufactures the device reach out to FHWA and other organizations to allege performance issues."

Trinity Industries declined to participate in a recorded interview. The company did answer specific questions in writing and provided a statement. Both are below.


Trinity Highway Products statement:

"Trinity stands by the ET-Plus® System, which we are proud to manufacture and sell. The false and misleading allegations being made were reviewed by the Federal Highway Association, which re-affirmed its acceptance of the ET-Plus® System in 2012. Trinity is pursuing the individual making these allegations aggressively in the courts and is taking all steps necessary to fully protect the intellectual property rights and the outstanding reputation of Trinity Highway Products and the ET-Plus® System. The individual making these allegations copied and manufactured a counterfeit ET-Plus® System and two of his companies were defendants in a patent infringement lawsuit. The individual's allegations are simply an attempt to advance his own cause by disparaging the Company and its products."

Concerning the suggestion that photos in the presentation or on the Failing Heads website indicate that the ET-Plus® System causes injury and death:

"Mr. Harman is being sued by Trinity in part because he has published pictures of damaged guard rail and end treatments and falsely claims the pictures are evidence that the ET-Plus® System does not function to the NCHRP Report 350 standards. Regarding the pictures, in every instance, the only way to assess the performance of the ET-Plus® System, or any similar system, is to know multiple facts such as, to name a few, the weight of the vehicle involved, the orientation of the vehicle at impact, the angle at which the end terminal was impacted, and the speed of the vehicle at time of impact. Without this and other information pertinent to each incident independently, it is impossible to determine how the end terminal system performed. Any assumption or representation that the pictures show or suggest something more than a damaged guard rail would be erroneous."


Q: Why is Josh Harman making allegations that Trinity's products are unsafe?
That's a question for Mr. Harman, not Trinity. We stand by the ET-Plus® System, which we are proud to manufacture and sell. Trinity is pursuing the individual making these allegations aggressively in the courts and is taking all steps necessary to fully protect the intellectual property rights and the outstanding reputation of Trinity Highway Products and the ET-Plus® System. The federal government has looked into the claims, investigated the allegations, evaluated them, and declined to participate in a lawsuit. It should be noted that the U.S. Department of Transportation reaffirmed its acceptance of the ET-Plus® System for use on the National Highway System in October 2012.

Q: When did Trinity become aware of Mr. Harman and his allegations?
The individual making these allegations copied and manufactured a counterfeit ET-Plus® System and two of his companies were defendants in a patent infringement lawsuit in 2011.

Q: What action has Trinity taken as a result of Mr. Harman's actions?
Trinity is pursuing the individual making these allegations aggressively in the courts and is taking all steps necessary to fully protect the intellectual property rights and the outstanding reputation of Trinity Highway Products and the ET-Plus® System.

Q: How does Trinity's 4" ET-Plus guide channel perform during a collision? Who approved its use? Where and when was it tested?
The ET-Plus® System with 4-inch guide channels attached to the extruder head was successfully crash-tested by the Texas A&M Transportation Institute (TTI), pursuant to NCHRP Report 350 test criteria, in May 2005. Trinity did not manufacture or sell any ET-Plus® System with 4-inch guide channels until the FHWA issued its letter of acceptance in September 2005.

Q: Did the federal government and state DOTs know what they were receiving when 4 inch ET-Plus guide channels were installed? Has their response to the product been positive?
The ET-Plus® System with 4-inch guide channels attached to the extruder head was successfully crash-tested, pursuant to NCHRP Report 350 test criteria, in May 2005. Trinity did not manufacture or sell any ET-Plus® System with 4-inch guide channels until the FHWA issued its letter of acceptance in September 2005. The FHWA reaffirmed its acceptance of the ET-Plus® System in 2012.

Q: Is Trinity aware of any deaths or injuries caused by the 4" ET-Plus guide channel?
We are not.

Q: Is Trinity aware of any deaths or injuries that were avoided as a result of the 4" ET-Plus guide channel?
It is almost statistically impossible to track the number of injuries and deaths on the U.S. Highway system and whether the ET-Plus® System was involved. However, it is important to note that the Federal Highway Association reaffirmed its acceptance of the ET-Plus® System for use on U.S. Highways in 2012.

Q: How is the 4" ET-Plus guide channel different from the 5" model? Please describe differences in weight, manufacturing cost, and the way each reacts to an impact.
Texas A&M Transportation Institute (TTI) asked Trinity if the ET-Plus® System extruder head could be manufactured with reduced guide channels attached. TTI suggested this improvement to enhance the already demonstrated performance of the system in the field. The change:

-- improved alignment of the extruder head and, therefore, enhanced rail extrusion during head-on impacts;
-- reduced the impact impulse on the occupants during a head-on collision with the system; and,
-- created a stronger weld of the extruder head to the guide channels.

TTI did not suggest the change as a way to cut manufacturing costs, nor was the inclusion of the 4-inch guide channels implemented based on any forecasted or actual manufacturing cost adjustments. Engineers and auditors have reviewed the costs associated with the change and determined that the reduction in cost was immaterial to the total unit cost.

Q: How many 4" guide channels are in service?
There are thousands of ET-Plus® Systems in service across the country. An exact number is not known since Trinity Highway Products does not install or maintain these products.

Q: How many are in service in California and specifically in San Diego County?
There may be thousands of ET-Plus® Systems in service in California. An exact number is not known since Trinity Highway Products does not install or maintain these products. Local distributors or installers use multiple products and may use the ET-Plus® System where applicable.

Q: How much does a 4" ET-Plus guide channel cost? How much does a 5" guide channel cost?
The ET-Plus® System with the improved 4-inch guide channels is the only product being manufactured. There is no price change associated with the modification.

Q: Who installs Trinity products in San Diego, CA?
There are multiple companies in Southern California that service roadways and buy products from Trinity Highway Products. We do not have an exclusive installer and roadway jobs are determined by a bid process.

Q: Was the design change from 5" to 4" accidentally omitted from the 2005 report? Did the federal government and state DOTs know from 2005 -2012 that the guide channels were smaller than designed? The ET-Plus® System with 4-inch guide channels attached to the extruder head was successfully crash-tested, pursuant to NCHRP Report 350 test criteria, in May 2005. Trinity did not manufacture or sell any ET-Plus® System with 4-inch guide channels until the FHWA issued its letter of acceptance in September 2005. It is important to note that the federal government looked into the claims being made, investigated the allegations, evaluated them, and declined to participate in a lawsuit. The U.S. Department of Transportation reaffirmed its acceptance of the ET-Plus® System for use on the National Highway System in October 2012. (Please refer to the February 21, 2013 letter to state DOT's)

Q: Why won't Trinity participate in a recorded interview?
Trinity is involved in litigation concerning this issue and we prefer to respond in written form.

*You can read letters sent by Trinity in support of its product here and here.

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