January 8, 2015 Trial News
Guardrail manufacturer faces increased scrutiny
Alyssa E. Lambert
As personal injury and wrongful death cases over Trinity Industries, Inc.’s, ET-Plus guardrails—which have impaled vehicles in crashes—continue to mount, a state and two counties have filed suit, and federal and state regulators are bearing down on the embattled manufacturer as well.
Virginia Attorney General Mark Herring has filed a qui tam action against Trinity for selling the unapproved and improperly tested guardrails to the state. This is the first government entity to sue Trinity over its potentially deadly design change to the ET-Plus. The suit seeks civil penalties and costs if testing shows the ET-Plus guardrails must be replaced. (Commonwealth ex rel. Harman v. Trinity Indus., Inc., No. CL13-698 (Va., Richmond Co. Cir. filed Dec. 11, 2014).)
Two Illinois counties have also filed a federal class action on behalf of all the state’s counties against Trinity, alleging it fraudulently covered up the design change and engaged in deceptive trade practices. (Hamilton Co., Ill. v. Trinity Indus., Inc., No. 3:14-cv-01320 (S.D. Ill. filed Nov. 26, 2014).)
In November, the Federal Highway Administration (FHWA) mandated new crash safety tests, as the Products Liability Law Reporter and Trial News previously reported. In December, the Southwest Research Institute in San Antonio, Texas, began testing a sample of Trinity’s ET-Plus guardrails from California’s Department of Transportation (DOT)’s unused inventory. But a handful of states, as well as members of Congress, have also asked Trinity to test guardrail units already installed on the nation’s highways. Testing is scheduled to conclude sometime in January.
On Dec. 24, the FHWA published a notice on the Federal Register asking the public to report accidents tied to the ET-Plus guardrails, including requesting measurements of the device as found on the roadside. Data must be provided to the agency by Feb. 9, 2015. At least 15 states are reviewing their guardrail inventory to see how many ET-Plus guardrails are on the roads, and the Virginia DOT is soliciting contracting bids to potentially replace the defective guardrails. More than 40 states have stopped installing them.