It Shouldn’t Be a Secret When Products Are Unsafe
Am image from the Harman complaint.
By Leah Nicholls, Staff Attorney, and
Leslie Brueckner, Senior Attorney
We’ve all heard by now about how hard General Motors worked to hide the problems with its ignition – and how that secrecy killed and injured a lot of people. It turns out that GM isn’t the only company trying to keep information about the safety of its products out of the public eye.
Trinity Industries, one of the world’s largest manufacturers of highway guardrails, is trying to hide information about the safety and design of one its most popular products: the “ET-Plus,” a guardrail end cap that is in use in all 50 states and abroad.
Public Justice is representing two safety organizations – The Center for Auto Safety and The Safety Institute – in a bid to bring details about Trinity’s products into the light. We’ve just moved to unseal court records in a federal whistleblower lawsuit that may contain important information about the hazards of the ET-Plus – records that Trinity wants to make sure the public never gets to see.
Courts are public entities, and their records are supposed to be public, too. That’s a right guaranteed by the First Amendment to the U.S. Constitution and federal common law, which give the public a presumptive right of access to court records that can only be overcome upon a showing of a powerful need for secrecy that outweighs the public’s right to know.
That kind of showing was never made in this lawsuit. Instead, the records were sealed simply because Trinity wanted them to be sealed.
That would be bad enough in an ordinary lawsuit, but this is no ordinary case – this case involves a product that may have killed or maimed lots and lots of people, and is currently in use on roadways throughout America and abroad.
The story began about 15 years ago, when Trinity got the green light from the federal government to peddle the ET-Plus to states to install along our nation’s roadways. When a vehicle hits the end terminal, the terminal is supposed absorb most of the energy from the impact, slowing the vehicle and keeping it from re-entering traffic. Trinity has sold thousands of these terminals to the states – they are literally all over the place.
So far, so good. But according to the whistleblower suit (filed by Joshua Harman, one of Trinity’s competitors), between about 2003 and 2005 Trinity decided to cut corners on the design of the ET-Plus to save manufacturing costs without conducting the usual battery of crash tests and without notifying the federal government.
What result? According to Harman’s suit, instead of safely slowing vehicles, the new version of the ET-Plus turns into a giant spear on impact that can pierce vehicles – and their occupants. The new ET-Plus, according to Harman, has seriously injured or killed numerous people and should be replaced in the interest of safety.
Harman and Trinity are battling it out in a federal courtroom in Marshall, Tex. – the case just ended in a mistrial, but will be retried later this year.
Meanwhile, though, the court docket is chock full of court records that have been sealed and no one gets to see except the lawyers for Trinity and Harman. No one but them knows exactly what these records contain, but we’re betting that they include important evidence about the hazards of the ET-Plus – after all, if the documents aren’t important, then why would Trinity be trying so hard to keep anyone from seeing them?
Today, Public Justice sought to join the case on behalf of the Center for Auto Safety and The Safety Institute to get Trinity’s records unsealed and out into the open. If we succeed, the public may finally know the truth about the ET-Plus – and the federal and state governments may finally have the ammunition they need to get these deadly terminals off the road.
Hopefully, our efforts will save lives.
The Safety Institute and The Center for Auto Safety file motion to intervene in controversial guardrail case
The following post by Jamie Schaefer-Wilson is cross-posted from The Safety Institute’s blog.
Represented by Public Justice, The Safety Institute and The Center for Auto Safety are seeking public access to sealed court records in United States ex rel. Harman v. Trinity Industries, the qui tam litigation that alleges the government was defrauded when it purchased certain modified guardrail end-terminals that are used throughout the country.
”Documents filed under seal in this action are of immediate importance to the motoring public as well as state and federal DOTs” said Sean Kane, The Safety Institute’s founder and president of the board of directors. (View Brief in Support of Motion to Intervene PDF| View Brief in Support of Motion to Unseal PDF | View Motion to Intervene | View Motion to Unseal )
In 2002, Trinity began to make modifications to their original ET-Plus end terminal guardrail design in a way that was not reflected in the record on which its federal approval was based. The Harman federal whistleblower lawsuit alleges that Trinity defrauded the government by reducing the height and length of the Feeder Chute Assembly without informing the Federal Highway Administration (FHWA) of those changes, as required. The ET-Plus guardrail end terminal is also the subject of numerous lawsuits nationwide alleging that the design failed to properly ride-down the energy in a crash. In some cases, the guardrails acted like spears piercing vehicles and causing serious injuries to occupants.
Fellow movant, Clarence Ditlow, Executive Director of The Center for Auto Safety said, “Changes made to the Trinity E-Plus guardrail ends affect the safety of motorists in crashes. Understanding those changes and why they were made is vital to understanding why failures occur in the real world.” The Center for Auto Safety is an organization that informs and advocates for consumers about auto safety issues.
As a result of field performance concerns associated with guardrail end-terminals, The Safety Institute is currently researching and studying these devices. The study will examine severe and fatal injury crashes that occurred as a result of impacts with the end and/or face of guardrail terminals, with the objective of analyzing the in-service performance of guardrail end terminals between 2005 and 2014, including the ET-Plus. Initially, this study will incorporate a statistical estimate of the relative risks of fatal and serious injury crashes involving each of the widely used guardrail end terminals in two states. The research study is ongoing and is expected to be released this year.
The discovery of modifications to the ET-Plus touched off a controversy involving the manufacturer, the FHWA, and state departments of transportation. Under its own guidelines and criteria, the FHWA has the authority and discretion to evaluate the performance of guardrail terminals in service. To date, however, the FHWA has not voluntarily evaluated the ET-Plus performance in the field, despite the agency’s recognition in 2012 of legitimate concerns about the product. Specifically, Nicholas Artimovich II, a highway engineer from the FHWA’s Office of Safety Technologies, conceded to other agency engineers that there were “valid” questions about the ET-Plus’s field performance compared to that of earlier versions.
“The public’s interest in these court records is especially strong because the ET-Plus may be lethally dangerous,” said Leslie Brueckner, Public Justice Senior Attorney. “Trinity shouldn’t be allowed to hide the truth by sealing records in a public lawsuit.”
Are Trinity’s Guardrails Safe?
The following is cross-posted from Safety Research & Strategies, Inc.’s blog.
On June 8, Cynthia Martin and Richard Blaine Markland of Dayton, Ohio, were southbound on I-93 in Ashland, New Hampshire, when the sedan left the roadway and struck a guardrail. Those steel rails lining the highway are designed to execute a complex task: keep the vehicle from leaving the roadway without deflecting the striking vehicle back into traffic, while allowing it to safely ride down the crash forces.
But the ET-Plus guardrail that driver Cynthia Martin struck did not yield to her Subaru Impreza and peel away from the vehicle like a flat metal ribbon. Instead, it penetrated the occupant compartment at the passenger side wheel well, slicing Markland and Martin in the legs and knees. The spear formed by the folded guardrail terminal end cap sheared Markland’s knee caps and caused both to sustain serious fractures. Both have undergone multiple surgeries to repair the damage. Markland is still in the hospital two months later.
“I know we spun around,” Markland said. “The guardrail had come into the car. Cindy was feeling a lot of pressure on her leg. My right leg was an open fracture with 4-6 inches of bone exposed. My right foot was trapped between the guardrail and the airbag, and some flesh was strewn across the inside of the car. The guardrail pushed a dent in my knee area. I knew something was wrong. Seeing my leg in that condition, I was screaming.”
The Martin incident is just the latest in a string of crashes in which an ET-Plus guardrail failed to perform properly, with devastating results for motorists and their passengers. But, according to Federal Highway Administration communications with the chief engineer of the New Hampshire state department of transportation, it never should have happened. Documents released as a result of a Safety Research & Strategies lawsuit in federal court, show that the FHWA and Trinity have devoted considerable energies to tamping down allegations that a 2005 dimensional change to the guardrail end terminals have turned these highway safety devices into weapons, rather than seriously investigating them.
Dallas-based Trinity, the globally dominant producer and seller of guardrail systems, has been battling these accusations since 2012, when Joshua Harman, president of a competitor company, SPIG Industries, of Bristol, Va., charged that sometime between 2002 and 2005, Trinity modified the design of its original guardrail end terminal design, the ET-2000, causing it to fail in crashes and injure and kill occupants in striking vehicles.
These allegations have been the subject of news stories and civil liability, patent infringement, fraud and freedom of information lawsuits. The stakes are high. State departments of transportation buy highway safety equipment from a list of vendors whose products have been crash-tested and approved by the Federal Highway Administration; the FHWA reimburses states that use approved equipment. So, the FHWA’s acceptance is critical to a manufacturer’s business. States rely on FHWA certification as an indication that the equipment performs adequately. Without knowing it, motorists also depend on the federal agency’s imprimatur when they crash into a guardrail – to get the best chance of surviving the crash safely.
Unlike other regulatory approvals from other agencies, such as the National Highway Transportation Safety Administration or the Food and Drug Administration, there is no avenue for consumer or the state to resolve defect issues. The FHWA has no enforcement power, expect to withhold its acceptance letter. The New Hampshire crash and others like it demonstrate the weakness of this “system,” when it breaks down.
In the 1960s guardrail designs used blunt ends that acted like a spear, penetrating the vehicle occupant compartment in a crash. The turned-down twist design of the 1970s buried the exposed ends, but acted like a ramp in a crash, causing vehicles to rollover. Today’s preferred design is the Energy-Absorbing End Terminal, which absorbs the crash energy, bends the end terminal away from the vehicle, and extrudes it through a slot into a flat metal ribbon.
In the early 1990s, Trinity launched the ET-2000, a guardrail system that addressed some of the safety failures of earlier designs, which speared the striking vehicle, or launched it into a rollover crash. The ET-2000 is an Energy Absorbing Terminal, which absorbs the kinetic energy of the striking vehicle, while bending the post away from it, and extruding the beam into a flattened ribbon. The FHWA first approved the ET-2000 in the early 1990s, and its field performance was satisfactory.
In 1999, Trinity launched the first version of the ET-Plus. In 2005, the manufacturer made a design change to the ET-Plus, allegedly to save material and manufacturing costs. The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the height of the feeder chute, through which the rail is extruded. With this change, critics charge, the end terminal no longer performs like those of the earlier design. Instead of bending away, the rail jams in the chute, causing it to fold in half, forming a spear that can penetrate the striking vehicle.
Trinity changed the design without notifying the FHWA, as required, until seven years later, when a patent dispute between Trinity and SPIG Industries, of Bristol, Va. brought this modification to light. Harmon repeatedly raised the issue with the FHWA, state DOTs and the media.
In the fall of 2012, three of 21 members of the American Association of State Highway and Transportation Officials (AASHTO) responded to a survey about the field performance of guardrail terminals indicating that the end terminals were involved in three severe vehicle crashes that resulted in serious injuries and deaths; two of the three agencies specifically referenced the ET‐Plus. AASHTO asked the FHWA to re-review its approval of the ET-Plus and document the modified barrier system’s crashworthiness under the federal criteria, NCHRP 350. More recently, in January, the Nevada Department of Transportation informed Trinity that its ET-Plus terminal would no longer be considered approved equipment because of the 2005 modification that was not disclosed.
Meanwhile, Harman’s whistleblower suit ended on July 18 in a mistrial, after U.S. District Judge Rodney Gilstrap concluded that both sides had hopelessly prejudiced the proceedings, calling their conduct “replete with errors, gamesmanship, inappropriate conduct, and matters that should not be a part of any trial where a fair and impartial verdict is expected.” Judge Gilstrap criticized Trinity and Harman over their conduct concerning a witness, Dean Sicking, a University of Alabama professor who designed the ET-2000, concluding that Trinity possibly intimidated Sicking and that Harman tried to hide his participation in the trial until the last minute, as a legal tactic. Gilstrap was equally disparaging about both parties’ conduct prior to trial, charging both with “multiple instances” of “delaying, obstructing, and failing to cooperate as the rules of this Court and the rules of federal procedure…”
Harmon sued Trinity in Marshall County, Texas, under the qui tam provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. In this case, Harman claims that Trinity defrauded the FHWA in selling the ET-Plus with the dimensional change without notifying the agency, as it is required to do. If the whistleblower prevails, the plaintiff can recover a portion of the damages, estimated to be as much as $1 billion in this case. It is anticipated that the case will be re-tried in November.
ET-Plus: FHWA Hot Potato
Publicly, the FHWA has couched the controversy as a business dispute between competitors. Internally, however, documents indicate that officials within the FHWA have admitted that these questions are legitimate. The draft of a Federal Highway Administration to Trinity that was never sent, called for an “in-service performance evaluation” of the terminals and “an investigation into the crashes documented by Mr. Joshua Harman.”…”The number of highway crashes with fatal injuries involving the ET-Plus terminals does not match the excellent history of the original ET-2000 terminal.”
In a February 2012 email to the South Carolina division of the FHWA, Nicholas Armitovich II, a highway engineer in the FHWA’s Office of Safety Technologies conceded that there were “valid questions” about the ET-Plus’s performance. But, instead of independently collecting data – running its own tests, or seeking real-world crash information — the FHWA turned to Trinity to provide assurances that the design change was insignificant. By the fall of 2012, the FHWA thought it had covered its bases, and took no action against Trinity for failing to disclose the design change. It also denied a request from AASHTO to do an independent study of the efficacy of the ET-Plus, saying that in the past, the organization had not listed such a study as among its priorities.
Recently released documents from the FHWA show that its legal team was treating its responses to inquiries from journalists and the New Hampshire department of transportation with great care, and was heavily involved in the drafting of agency communications.
On October 1, 2012 after speaking with Harman, Keith Cota, chairman of AASHTO’s Technical Committee on Roadside Safety and chief project manager for the New Hampshire DOT wrote a long email to Nick Artimovich raising concerns about Harmans’ claims. He concluded:
The question I do have is, “for the terminal units we are installing in NH, should it be providing a 5 inch feed channel or not?” We have many, many of these terminal units on our high speed facilities and this certainly causes me some strong concern for crash worthiness of the ET-Plus and ET-2000 that we have and are installing each year. I am not sure if I want to wait until the court case is decided and al l the appeals have been completed to take action (20 years from now) or be ready to answer the next set of bigger questions as to 1) the need to retrofit the devices installed along our highway system and 2) who pays? I understand this has been going around for some time and I am just now becoming aware of the issues through the complainant in the lawsuit. I will be looking toward Nick to give some guidance as to how NH and other States should proceed. Should I be worried? Should I send this out to the full slot of TCRS State members? Or worst yet, should I brief my Chief Engineer? I don’t like the box this puts me in!
The FHWA sent this explanation to Cota:
On February 14, 2012, Barry Stephens and Brian Smith of Trinity Highway Products (Trinity) stated the company’s ET end terminal with the 4-inch w ide guide channels was crash tested at the Texas Transportation Institute (TTI) in May 2005. Roger Bligh of TTI confirmed this information on February 14. 2012. Trinity submitted documentation on various dates of changes made to its ET end terminals, which included changes from the ET-2000 to the ET-Plus. On February 14, 2012, the company reported the reduction in the width of thc guide channels from 5 inches (in the year 2000) to 4 inches (in 2005) was a design detail omitted from the documentation submitted to the Agency on August 10, 2005. On March 15, 2012, Trinity submitted a letter to FHWA dated March 14. 2011 (sic) which stated its ET-Plus with the 4-inch guide channels was crash tested at TTI in May 2005.
Cota sought further information:
I hate to be labor this issue further, but in order to verify this situation, can you have TTI or Trinity provide a couple high resolution photos of the 2005 test installation. It is my understanding they do take these pictures prior to the crash testing event? As you know this unit is being used in many States and quite expensively here in NH. We want to have some background, supportive documentation for the change in guide plate fabrication and its use in the crash test that is covered by FHWA’s ((-94 acceptance letter. We checked several of our units in the field and found each has the 4-inch guide channels.
Ultimately, Cota, like the FHWA, was assured:
Thanks. This puts to bed the issue of 4 inch versus 5 inch guide channel for the extruder heads on the ET2000 and ET Plus. It is unfortunate this critical information was omitted by Trinity in its documentation for FHWA’s acceptance. I am asking our NH District Maintenance Engineers as to the experiences they have seen for the impacts and in-field performance for all our energy absorbing units to see if we have a good history with the use of these terminals (ET and SKT). In addition, I am asking what issue they have experienced with the heads being miss-aligned due to nuisance hits or winter maintenance plowing impacts by wing blades. If I am able to receive good data, I will forward it for your information.
And even the FHWA was happy. In an internal email, Armitovich told his colleagues:
It appears that New Hampshire is satisfied with our response. However the question has brought the added benefit that New Hampshire will now look more closely at the actual performance of their hardware.
It is unknown whether Cota has informed the FHWA of the Martin crash, but Blaine Markland says that he is not thrilled by the prospect of being a data point in any ad hoc study about the efficacy of the ET-Plus guard rail.
Markland has been in the Dartmouth-Hitchcock Medical Center in Lebanon, NH, since he was airlifted there on the evening of the crash. He has undergone about 20 surgeries – mainly to replace the flesh of his shin that was sheared off by the guardrail. He hopes to finally return home to Ohio soon to continue his recovery, and return to his job as a middle school special education teacher. Markland was disturbed to learn that the questions about the guardrail that caused his catastrophic injuries had been raised two years ago:
“It’s quite upsetting if they were aware at all, if they knew about the issues with this guardrail,” he says. “The whole concept of a guardrail is safety, and if this guardrail is causing this kind of damage, that has to be dealt with.”