A Once-Hidden Danger On Our Highways Has Come To Light Over The Past Two Years Thanks To The Courage And Perseverance Of A Virginia Guardrail Installer Named Joshua Harman. Mr. Harman Realized That Certain “End Terminals,” Which Are Designed To Absorb Crash Energy In The Event A Vehicle Strikes The Near End Of A Run Of Guardrail, Were Failing To Work As Intended In Many Cases. He Also Discovered That These End Terminals, Manufactured By Trinity Industries, Inc. And Its Subsidiary Trinity Highway Products Llc, Had Been Changed From Their Original Design To Reduce Costs. More Alarming Still Was That Trinity Had Not Informed The Federal Highway Administration (Fhwa) Of The Design Changes Made In 2005. It Was Only After Mr. Harman Initiated A Qui Tam Lawsuit Against Trinity That He And His Legal Team Uncovered A Shocking Cover-Up: Trinity Had Secretly Tested Its Changed End Terminal Design Five Times; It Failed All Five Times; But Trinity Never Reported It To The Fhwa. The Stage Was Set For A Massive Verdict Last October, When A Federal Jury In Texas Awarded $175 Million.
The Federal Highway Administration recognizes that a guardrail is a safety device: “A guardrail is, first and foremost, a safety barrier intended to shield a motorist who has left the roadway.” 
This reflects a consensus in the highway design community that vehicles will occasionally leave the path of travel at highway speeds, and that their occupants may be in grave danger unless kept within the boundaries of the road. However, because not all runs of guardrail can be terminated in a berm or hill, a severe danger is posed when a vehicle strikes the exposed end of a guardrail. When a vehicle impacts a guardrail in this way, the guardrail will knife through the vehicle, destroying it and any occupants in its way.
For this reason, Dr. Dean Sicking, an engineering professor then working at Texas A&M, invented an energy absorbing end treatment to address this hazard.
In its publication Guardrail 101, the FHWA recognizes the need to address the hazard of striking guardrails on their near end, and describes the function of end terminals generally: “The exposed end of the guardrail needs to be treated. One common treatment is an energy-absorbing end treatment that is designed to absorb the energy of an impact by having the impact head slide down the length of the guardrail. . . . When hit head-on, the impact head slides down the guardrail flattening, or extruding, the guardrail and redirecting the guardrail away from the vehicle until the vehicle’s impact energy is dissipated and the vehicle has decelerated to a stop.” 
Dr. Sicking’s original design for such an end terminal, the ET-2000, was an elegant solution to a vexing safety problem. In 1999, Trinity requested that the FHWA approve a newer design, the ET-Plus., Trinity’s application stated, , “since its introduction in the late 1980’s, the ET-2000 . . . has proven to be a safe and effective treatment for the end of W-beam guardrail.”  By all accounts, the ET-Plus design, manufactured between 1999 and 2005, functioned well.
Even so, in August 2005, Trinity asked the FHWA to approve further design changes to the ET-Plus, ostensibly “to match the ET-Plus terminal, which was originally tested with standard W-beam guardrail, to the Midwest Guardrail System.”  At the same time, Trinity changed several dimensions of the ET-Plus end terminal including the width of the feeder chute, the height of the feeder channel, and the width of the exit gap. Yet, Trinity chose not to disclose any of these changes to the FHWA. The real reason for the design changes was money. According to an internal email from then-President Steve Brown to other Trinity executives in November 2004, “we would save $2/ET. That’s $50,000/year and $250,000 in 5 years by using the 4″ channel for the legs” (rather than the approved 5″ design). In the same email, Brown documented the plan to hide the changes from the FHWA: “I’m feeling that we could make this change with no announcement.” 
From Competitor to Whistleblower
Trinity’s secret modifications came to light in a curious way. The guardrail installer who discovered them, Mr. Harman, is a founding owner of SPIG Industry, a guardrail manufacturer in Bristol, Virginia. After sourcing and installing Trinity end treatments for a number of years, Mr. Harman, having incorrectly believed that Trinity’s patents had expired, developed his own end terminal based on Trinity’s design. Trinity sued Mr. Harman and SPIG in federal court in Virginia alleging patent infringement. During discovery in that case, Mr. Harman began to travel widely around the country looking at installations of Trinity end terminals, and taking measurements. He realized that Trinity’s design changes to the ET-Plus in 2005 were considerably more extensive than it had disclosed to the FHWA when seeking government approval. He also found that the modified ET-Plus end treatments, on which the feeder chute width had mysteriously decreased from 5″ to 4″, were failing at a seemingly high rate. The failures involved crashes where the end terminal “locked up,” rather than sliding down the guardrail, because the guardrail could not slide through the terminal’s smaller feeder chute. Many of those failures resulted in the guardrail folding in on itself to form a spear that penetrated the striking vehicle occupant compartment, often with tragic results.
Mr. Harman began collecting records of these crashes and the stories of their victims. In January 2012, he went public with his findings, creating a website called failingheads.com on which he displayed crash photographs and documents. Then, as the patent infringement case in Virginia resolved, Mr. Harman confidentially filed a qui tam lawsuit against Trinity in Texas federal court. The Justice Department chose not to intervene in the case because its client, the FHWA, claimed not to have been deceived. However, during pretrial discovery in the qui tam case, Mr. Harman’s trial team uncovered Steve Brown’s now notorious November 2004 email about saving money with design changes that would be hidden from the FHWA. The death blow was struck when discovery revealed five secret crash tests of the modified ET-Plus performed at the Texas Transportation Institute between June 2005 and March 2006. Under the protocols set forth in the NCHRP Report 350, Recommended Procedures for the Safety Performance Evaluation of Highway Features, the modified ET-Plus failed each of the five crash tests.
Three major events in the ET-Plus saga occurred in October 2014. On October 20, Mr. Harman and his legal team dealt Trinity a decisive blow when a federal jury in Marshall, Texas awarded $175 million. Under federal law, that award should be tripled, and increased by thousands of dollars for each individual misrepresentation made by Trinity to the FHWA. Though Judge Gilstrap ordered the parties to participate in mediation in December 2014, at this time, the case is not resolved.
On the following day, October 21, the FHWA “concluded that Trinity must perform additional crash testing of the ET-Plus,” and directed that the guardrail manufacturer promptly provide a crash testing plan.  Trinity provided the crash testing plan, FHWA accepted the plan, and actual testing began at a remote site off limits to the public and virtually all press during Thanksgiving week. Though the first test was reportedly a pass, Dr. Sicking has warned federal officials that the tests being run do not accurately predict the ET-Plus’s performance in the field because the angles of impact being studied do not mirror the angles at which vehicles strike end terminals in the real world. 
Finally, on October 28, a group of researchers in the Engineering Department at the University of Alabama – Birmingham published a Relative Comparison of NCHRP350 Accepted Guardrail Terminals. Analyzing crash data from the state departments of transportation in Ohio and Missouri, the study concluded that the ET-Plus is significantly more dangerous than the original ET-2000 end treatment: “the analysis shows that the ET-Plus is 1.45 more likely to be involved in a severe injury than the ET-2000. More poignantly however, the ET-Plus is 3.95 times more likely to be involved in a fatal crash than the ET-2000.” 
AAJ is Poised to Address the Danger
Last month, AAJ approved the creation of the Guardrail Litigation Group, with Kent Emison and me as co-chairs. The Guardrail Litigation Group will house a repository of information, documents and data from the patent infringement case, the qui tam case, and the dozen or more personal injury cases already in suit. The Guardrail Litigation Group will hold its inaugural meeting on Tuesday, February 24, 2015 at the AAJ Winter Conference in Palm Springs, California, where safety advocate Sean Kane of Safety Research & Strategies will brief us on the latest developments in the qui tam case, the federally mandated retesting of the ET-Plus end terminals, and personal injury lawsuits around the country.
This article originally appeared in the American Association for Justice Winter 2015 Products Liabiltiy Newsletter.
David L. Kwass, of Saltz Mongeluzzi & Bedesky, Philadelphia, Pennsylvania, focuses his practice on personal injury cases involving construction, crane, and aerial lift accidents, as well as workplace falls, recreational products, and liquor liability.
 Guardrail 101, United States Transportation Department, Federal Highway Administration (undated) at page 1.
 Id. at page 2.
 NCHRP Report 350 Test 3-31 of the ET-2000 Plus, Texas Transportation Institute, Texas A&M University System (December 1999) at Abstract.
 Email from S. Brown to R. Boyd, B. Smith (Tuesday, November 9, 2004, 2:38 p.m.) re: ET.
 Letter from G. Nadeau to G. Mitchell (October 21, 2014) (HOA-1).
 Letter from D. Sicking to G. Nadeau (October 22, 2014) (Testing of the ET-PLUS Guardrail End Terminal)
 Kevin Schrum, Relative Comparison of NCHRP350 Accepted Guardrail Terminals, UAB School of Engineering (October 28, 2014) at page 21.