Court Orders Defendant in Guardrail Whistleblower Case to Show Why Records Should Remain Sealed

Court Orders Defendant in Guardrail Whistleblower Case to Show Why Records Should Remain Sealed

An image from the Harman v. Trinity complaint.

In United States ex rel. Harman v. Trinity, a federal whistleblower case involving dangerously defective highway guardrails, the court has ordered Trinity Industries, Inc. to show why records in the case should remain sealed from public view after the trial. Over the course of the case, dozens of key briefs and pleadings were filed under seal without any showing that secrecy was warranted, in violation of the public’s presumptive right of access to court records. The secret documents may contain important information on the safety of Trinity’s guardrails, which have been linked to numerous deaths and serious injuries.

The court’s order was issued in response to a motion to intervene and unseal filed by Public Justice on behalf of two non-profit safety groups, the Center for Auto Safety and The Safety Institute. The nonprofits are seeking to open the records because of the serious safety risks posed by hundreds of thousands of guardrails that have been installed in all fifty states – with federal financial assistance – to protect people in highway crashes. U.S. District Judge Rodney Gilstrap denied the motion to intervene on Sept. 4, but at the same time he affirmed the groups’ contention that Trinity must justify why these important records are shielded from public view.

Judge Gilstrap wrote:  “the Court takes seriously the public’s right of access regarding trials and evidence presented in judicial proceedings, as well as the Court’s role in enforcing such access. Accordingly, following the trial and return of a verdict in this case, the Court will enter an Order requiring the parties to show good cause why previously sealed testimony, evidence or other material should remain under seal.”

Although they applaud the court’s recognition of the public’s right of access to court records, the nonprofits plan to appeal the denial of their motion to intervene. If they win the appeal, Public Justice attorneys will be back before the court making the case for the public’s right to know.

The whistleblower in the case, Joshua Harman, claims that modifications to the “ET-Plus” guardrails manufactured by Trinity Industries Inc. transformed the guardrails into lethal spears. Harman claims that Trinity hid the modifications from the federal government, defrauding taxpayers of over $100 million dollars and placing the driving public at grave risk. The suit, U.S ex rel. Harman v. Trinity Industries, ended in a mistrial in July. (A new trial is expected to begin this fall.)

“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.”

“This is information everyone has a right and a desperate need to know.”

In the suit, Harman, whose company also manufactured guardrails, alleges Trinity changed the design of its ET-Plus guardrail end terminals between 2002 and 2005 without telling the federal authorities. Instead of acting like a shock absorber when hit, he says, the redesigned terminals act more like a huge metal shiv.  

“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.

Clarence Ditlow, Executive Director of The Center for Auto Safety, agreed.

“Changes made to the Trinity E-Plus guardrail ends affect the safety of motorists in crashes,” Ditlow said. “Understanding those changes and why they were made is vital to understanding why failures occur in the real world.”

For more information, please contact:

Catherine Behan, Public Justice



Clarence Ditlow, Center for Auto Safety



Jamie Wilson, The Safety Institute



Sean Kane, The Safety Institute


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