Maker of guardrails used in NC ordered to pay $663 million penalty

RALEIGH, N.C. (WNCN) – A company that supplies thousands of guardrails in North Carolina has been ordered to pay $663 million in damages and penalties for committing fraud.

The lawsuit was focused on the end terminal of Trinity Industries’ ET-Plus guardrail. There are at least 10,000 Trinity guardrails on roads and highways in North Carolina.

Joshua Harman, a competitor of Trinity Industries, filed the lawsuit in 2011 when he discovered that Trinity had made a critical change to its ET-Plus guardrail in 2005 and never told federal regulators, which is required by law. A judge ruled that the company never reported reducing their guard rail end terminals from 5 inches to 4 inches.

“Trinity made the decision to modify the ET-Plus, conceal such modifications, and falsely certify that the ET-Plus units had been accepted,” Judge Rodney Gilstrap of United States District Court wrote in his ruling.

Harman tells WNCN the changes made the guardrails dangerous and he is now shifting his focus to getting these kinds of guardrails recalled.

“They committed fraud and it’s resulting in fatalities,” said Harman. “Do something about it, correct the problem.”

There are at least 14 other lawsuits against the company blaming the guardrails for causing injuries in crashes, according to the New York Times. One of those lawsuits involves Jay Traylor, a Graham, NC man whose legs were cut off after he hit an ET-Plus guardrail on an Orange County highway.

Trinity Industries stopped manufacturing the guardrail in 2014. During that time, dozens of states removed and banned the ET-Plus guardrails. North Carolina is one of the few states that still have them on their approved product list.

“The states that are allowing these terminals to be installed to this day is irresponsible,” said Harman. “The act of leaving these on a list, eligible to be installed, to expose the public to these hazards is not acceptable.”

The North Carolina Department of Transportation claims the guardrails are safe and they have no intention of removing them.

“We would not knowingly put a device on the side of the road that we believe to be unsafe,” said State Traffic Engineer Kevin Lacy.

Lacy explains that state crash data shows ET-Plus guardrails do not increase the chance of injury or death in crashes involving guardrails. It’s not known where these specific guardrails are because the DOT does not track the specific locations.

Earlier this year, the Trinity ET-Plus also went through a series of 8 tests to determine whether the guardrail was safe with the changes. The Federal Highway Association said the ET-Plus passed all eight tests.

“If we believed that the product was unsafe, not only would we ban the product, but we would be removing the product,” said Lacy.

Even though the lawsuit has been settled, Harman says he will continue in his efforts to get the guardrails recalled in states like North Carolina.

“These things will be left on the road for years to come and if they don’t step up and do the right thing, multiple people will die.”

Trinity Industries responded to Tuesday’s ruling with a statement…

“The Company believes the evidence clearly shows that no fraud was committed. Trinity also believes that the trial court made significant errors in applying the federal law to Mr. Harman’s allegations and, therefore, the judgment is erroneous and should be reversed in its entirety.”

June 2017 update: A Trinity Industries representative said the judge’s ruling is still going through the appeals process.

It is currently under appeal to the 5th Circuit Court of Appeals and that court has not rendered an opinion at this point.

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