·  Legal News, Analysis, & Commentary


The ET-Plus Guardrail: When Safety Becomes Political

— March 23, 2015

The Federal Highway Administration recently gave passing grades to the ET-Plus guardrail in four recent crash tests; however, both the agency and embattled manufacturer, Trinity Industries, are now facing an even higher degree of scrutiny. The ET-Plus passed despite the final test causing a sizeable gash in the driver’s side door, causing extensive damage to a 1998 Geo Metro moving at 60 mph. The Federal Highway Administration has been investigating Trinity since 2012, in response to a whistle-blower lawsuit filed on behalf of the government by Joshua Harman, part owner of recently bankrupt rival guardrail maker, Spig Industry LLC. The suit claimed that Trinity did not disclose design changes that the company made in 2005 and lied to the government about such changes. A jury found Trinity liable for up to $525 million in October, 2014 for defrauding the government, of which a suspected $12 million going to Harman in a confidential settlement.

However, the Federal Highway Administration is involved in its own turmoil, as some in Washington believe the agency was lax in its testing standards. Sen. Richard Blumenthal (D-CT) among others has gone as far as to request a General Accounting Office formal investigation of the ET-Plus tests. Additionally, Harman’s attorney claims that the Federal Highway Administration ignored a 2003 National Highway Traffic Safety Administration study that set the damage threshold at 6 inches, whereas the final ET-Plus gash was measured at 6.75 inches.

Despite a growing multitude of wrongful death and injury lawsuits attributed to the splintering of these guardrails, the passing grade means that states that purchase the ET-Plus remain eligible for federal reimbursement. This is a key credential for Trinity to remain viable, although states have ultimate discretion on which guardrails to purchase.  The Federal Highway Administration does claim that their investigation is not complete and will take several more months to conclude. This is leaving states in limbo as to whether or not purchasing the ET-Plus will put them in financial and liability jeopardy. In response to the fraud lawsuit, Trinity underwent an intensive lobbying campaign, giving large donations up to $50,000 to state-level Attorneys General, of which 30 states have banned the ET-Plus at least temporarily.

While legal, the aggressive nature of the state-level lobbying campaign also raises doubts about the relationship between Trinity and the Federal Highway Administration. After all, this is a company that was found to have defrauded the Federal government, yet the agency is being accused of leniency.  Even if nothing improper is occurring, it raises eyebrows as to what degree lobbying and politics are affecting the perception of safety of the guardrail as opposed to actual science and design.

The New York Times – Aaron M. Kessler and Danielle Ivory

The Wall Street Journal – Katy Stech

The New York Times – Eric Lipton and Danielle Ivory  

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