Guard Rails: Chances are high that unless you’ve hit one, you don’t pay any attention to them, even though they too can kill or maim in a car wreck.

Introduced along with our interstate highway system in the early 1960s, guardrails must meet crash test criteria established by the Federal Highway Administration (FHWA) (as well as state highway officials in the states where they are installed) before they can be approved for use. Guardrails have evolved into sophisticated safety devices that have saved the lives of hundreds of thousands of drivers.

But in the 1990s, something changed. Today’s basic guardrail (ET-2000) was developed with a special “feeder chute” that flattens the guardrail into a lateral “shock-absorbing ribbon” of metal, thereby deflecting the vehicle away from the device itself. A similar design that used less material was subsequently manufactured by Dallas, Texas-based Trinity Industries, Inc, and called the ET-Plus. It was crash-tested, approved by the Federal Highway Administration (FHWA) and installed on highways throughout the country beginning in 2000.

But in 2012, a lawsuit was filed by a whistleblower (with a Trinity competitor) on behalf of the federal government against Trinity alleging that it had decreased the size of the ET-Plus guardrail’s end terminal to cut costs. According to the suit, the width of the feeder chute was slightly narrowed – five inches to four – and a half-inch was trimmed off the height. The lawsuit claimed these design reductions were defective: the guardrail displayed a tendency to get stuck in the feeder chute, lock-up, and pierce through crashing cars instead of helping them slow down. It was later learned that Trinity did not crash-test the modification and that this modification was not approved by the FHWA.

Since the lawsuit, the design has been the subject of numerous studies, the most compelling being done by  University of Alabama researchers in 2014 who concluded that the ET-Plus was 36 percent more likely to cause injuries and three times as likely to cause death, compared to the ET-2000. Late in 2014, Trinity was found liable for defrauding the FHWA by making almost 17,000 false claims to the government in relation to the potentially dangerous design change.

Conflicting Court Rulings Throw Trinity’s Defective Guardrails in a State of Flux

Trinity was ordered to pay $175 million, which was tripled under the federal False Claims Act to $525 million, plus a $138 million penalty that was added to the verdict. Joshua Harman, the whistleblower involved in the lawsuit, told Gannett’s USA TODAY that the issue involving the ET-Plus was fraud and the guardrail end design was a “total disregard” for safety because the Federal Highway Administration “just approved it and put it on the highway and didn’t care.” Harman accused the FHWA of having “zero concern” for safety until issues are publicly exposed.

But Trinity won an appeal in 2017 that it altered its ET-Plus without approval from the FHWA. This doesn’t yet relieve Trinity of liability for its guardrail ends. So the company is still a defendant in a number of lawsuits throughout the U.S. involving alleged “impalement” injuries and deaths allegedly caused by the company’s guardrails – primarily involving the end assemblies. Federal prosecutors in Boston are still investigating allegations of a cover-up between Trinity and the FHWA.

Talk of a nationwide recall to replace the malfunctioning terminals remains. The Kentucky Transportation Cabinet estimates that there are hundreds of Trinity ET-Plus end terminals lining the edges of state roadways, but their locations remain unknown. The department began keeping a database in 2007. Current indications show 528 guardrail projects to address defective end terminals. However, the only way to know for sure is to physically inspect each one to determine whether it has that crucial one-inch difference.

The Danger Remains

At least nine deaths and numerous injuries have been tied to the ET-Plus highway guardrail safety system and raised questions about their safety across the country. If you think you may have been injured by or lost a loved one due to a Trinity ET-Plus guardrail, the Kentucky defective guardrail accident lawyers at the Johnson Law Firm are here to help.

From his office in Pikeville, Attorney Billy Johnson makes it his life’s work to assist injured accident victims throughout Kentucky. He believes those who cause harm to others should be held accountable for their actions. This includes paying compensation to accident victims for medical expenses, lost wages, pain and suffering, possible punitive damages and, in the event of a fatal accident, wrongful death.

A proven advocate, Billy is a proud member of the Million Dollar and Multi-Million Dollar Advocates Forums. Put his experience to work for you by calling the Johnson Law Firm at 606-433-0682 or by filling out our consultation form for a free assessment of your case.