Though drivers hope they’ll never find out, those yellow-and-black devices on the end of guardrails are supposed to cushion the impact of a vehicle that veers off the road. But a legal dispute has erupted over whether a design change was properly evaluated, reports Daniel J. Goldstein.
By Daniel J. Goldstein
On a warm and humid morning of May 27, 2005, the Texas Transportation Institute tested a new guardrail end unit at a sprawling proving facility about eight miles north of Texas A&M University in Bryan, Texas. TTI, as it is known, tested the highway guardrail design for Dallas-based manufacturer Trinity Industries, which typically sells more than $300 million a year in guardrail safety systems nationwide and around the world.
The purpose of those ubiquitous yellow-and-black-painted rectangular end units is to reduce the risk to drivers and passengers whose vehicles veer off a highway and slam into the ends of guardrails. The safety device is supposed to diffuse the energy from the crash while preventing vehicles from being impaled on a free-standing guardrail, thus its effectiveness can be a matter of life or death.
Critics of the redesigned guardrail unit that was to be tested on that sultry day in 2005 have alleged that – after being installed along highways around the world – it has sometimes performed poorly in head-on crashes, even catastrophically turning the guardrail into a spear that slices through cars and people in them. [See Consortiumnews.com’s “Guardrail Design Raises Concerns.”]
So, the safety of the car-traveling public was at issue when a 1998 Chevy Metro was hooked up to cables that accelerated the test vehicle to just over 60 mph before it slammed into what was billed as a new design of Trinity’s guardrail end unit, called the 4-inch ET-Plus. The modified device being tested was slightly different from – and less expensive than – a previous design, known as the 5-inch ET Plus, which had worked well the previous four years.
While the new device also had a rectangular steel end unit, the neck of the design was smaller, four inches wide at what is known as the feeder channel, the part that mounts on the W-shaped guardrail, instead of the previous five inches wide. The internal dimensions of the feeder channel end unit were reduced as well, from 37 inches long to 36.25 inches.
For the test, the head of the unit was placed on the end of a standard W-beam steel guardrail, anchored by metal posts, each a little more than six feet apart. The test results were evaluated using federal standards known as NCHRP-350 and sent to the Federal Highway Administration (FHWA) for approval, a process that allowed states to get reimbursed from the FHWA when they installed Trinity’s units on highways and roads.
But there may have been a problem with the otherwise routine test. That particular design, the 4-inch wide ET-Plus guardrail end unit, may not have been the one tested that day – and the 4-inch ET-Plus is currently at the center of several wrongful death lawsuits around the country.
Besides the potential liability if the unit is found to be faulty – or if the validity of the safety test is put into question – there are other financial and safety concerns, since more than 500,000 units were produced between 2005 and 2009 and installed in all 50 states and 60 countries.
A Whistleblower Case
At the heart of the lawsuits is whether the altered dimensions diminished the effectiveness of the end units in protecting crash victims – and whether the revised unit was properly evaluated.
Industry whistleblower Joshua Harman of Bristol, Virginia, wants the Trinity-made 4-inch ET-Plus guardrails removed from the national highway system, potentially a staggering expense. Harman said he first discovered the concerns about 4-inch ET-Plus in 2011 when his own guardrail manufacturing company SPIG Industries was involved in a patent suit with Trinity.
Harman and several trial lawyers contend that the seemingly minor changes in the dimensions of Trinity’s 4-inch ET-Plus end unit cause it to malfunction in a head-on crash by “throat-locking” and folding the guardrail onto itself, thus forming a lethal spear that penetrates the passenger compartment of the colliding vehicle.
Harman, a former construction executive, said he’s documented more than 200 cases of the 4-inch ET-Plus failing catastrophically and posted examples on his Web site, http://failingheads.com/. Trinity Industries however has vigorously defended the 4-inch ET-Plus and claimed Harman is lying about the performance of the safety device to drum up guardrail business for his rival company.
In addition to filing suit against Harman, Trinity also has blamed driver error and mistakes by states in installing the 4-inch ET-Plus as the reasons for some of the horrific crashes that caused vehicle occupants limbs to be severed as well as several deaths from impalement by the guardrail.
But Harman, who recently was victorious in a defamation suit in Texas brought against him by Trinity, with the judge ordering the Dallas-based company to pay Harman’s legal fees, also claims that the device that was tested on May 27, 2005, might not be the end units seen on highways around the world because some changes may have post-dated the tests.
“Nobody really knows for sure,” Harman said, “not even Trinity or TTI.” Harman contends the dimension changes were critical to what he calls the catastrophically poor performance of the device when it’s subject to a head-on collision.
So, beyond the safety of drivers and their passengers, much is at stake in the legal wrangling over the 4-inch ET-Plus. As such, the legal challenges against Trinity have attracted prominent lawyers, including Microsoft giant-slayer David Boies of New York-based Boies, Schiller & Flexner.
The Mysterious Test
The 2005 test in question was conducted at an old U.S. Air Force base which had been converted into TTI’s nearly 2,000-acre proving ground. The base’s flat and level concrete runways and wide aprons were ideal for the safety tests. [To see test report, click here.]
According to court documents, what is known is that sometime between January 2005 and May 2005, Steve Brown, the then-president of Trinity Highway Products, asked Wade Malizia, the manager of the Trinity plant, known as Plant 31 in Girard, Ohio, just west of Youngstown, to make an ET-Plus terminal with 4-inch-wide feeder channels.
Malizia then delegated the work to the plant’s welding shop. A draftsman by the name of Jack Marley was assigned to create the drawings for the 4-inch ET Plus. Marley however said that he “could not remember” making any changes to the previous model, according to a federal court document. Moreover, no engineers were involved in the change, and the welders didn’t make any drawing or save any of their work, the document claims.
The supposedly new prototype was then shipped from Ohio to Texas to be tested by TTI. According to the court filing, the prototype was disposed of after the May 27, 2005 test. “There are no records of what was actually tested,” Harman said. Moreover, the court filing claimed that after the May 27, 2005 test, between May 31 and Aug. 31 of that year, no fewer than “seven” changes were made to the ET-Plus design.
Marley was able to show draft drawings created on May 31, 2005, that shrank the height of the feeder chute by 3/8s of an inch. The court filing also showed that on July 6, 2005, a second change was made post-test shortening the length of the feeder chute by three quarters of an inch.
Dr. William Stamps Howard, a design engineer in Buford, Georgia who has spent nearly 25 years designing mechanical equipment for manufacturing, said that while it’s not usual for prototypes to be discarded, it is unusual for designs for safety equipment to be changed without the benefit of engineers or changes to be made after the test is completed, as Harman alleges Trinity to have done.
“It’s one thing to paint it a different color or put the company’s logo sticker in a different place, but if you make changes in the dimensions, the overall design, or the materials after the initial test, then the initial test is pretty much invalid,” said Howard, who has consulted for Fortune 500 companies such as ExxonMobil, PepsiCo and Gillette, according to his Web site.
Harman claims the changes were approved at the highest levels at Trinity and TTI “to save costs by reducing scrap.” Trinity, according to e-mail traffic between company officials, was able to save money two ways. [See court filing.]
“Trinity reduced its raw material costs and the change allowed Trinity to insert the feeder channels into the extruder throat, thereby requiring less labor to weld the two assemblies together,” Harman said.
The changes indeed may have saved the company money. Trinity in its 2006 annual report to shareholders noted that operating profit in its Construction Products Group rose to $61.5 million in 2006, the first full year the 4-inch ET Plus was sold, up from $55.3 million in 2005.
The company noted in its SEC filings that year that its “selling, engineering and administrative expenses” as a percentage of revenue fell to 6.5 percent in 2006, down from 6.7 percent in 2005. Those expenses declined further in 2007 to 6 percent, as the company made an operating profit in the Construction Products Group of $58.2 million.
Trinity Industries did not respond to my requests to explain why the changes in the guardrail end unit were made. A statement by Lisa Singleton in the Dallas office of the Brunswick Group, a corporate communications firm, declined to address specific questions raised about the mysteries of the 4-inch head.
Singleton said, “Trinity stands by the ET-Plus System, which we are proud to manufacture and sell. The false and misleading allegations were reviewed by the Federal Highway Administration, which re-affirmed its acceptance of the ET-Plus System in October 2012.”
The Federal Highway Administration also declined to comment for this story, referring to its statement in February 2013 saying that the ET-Plus guardrail “was tested in 2005 (and) the end terminal with the four-inch feeder channels met all crash test standards.”
However, in February 2012, more than six years after first getting approval from the FHWA for the 4-inch ET-Plus, Trinity acknowledged that it had modified the internal dimensions, calling the reduction in the width of the guide channels “a design detail omitted” from its documentation to the government. [See e-mail exchange.]
Also in February 2012, TTI director Roger Bligh submitted to FHWA’s chief highway safety engineer Nick Artimovich an “analysis of photographs” in which he claimed the dimensions of the prototype that was tested on May 27, 2005, matched that of what was submitted to the FHWA for approval. But the “photo analysis” turned out to be a simple algebraic equation written on a Post-It note stuck on the photo. [See deposition with photo on page 4.]
“TTI had fed bogus measurements into the algebraic equation in an effort to produce a predetermined result,” Harman claims.
And, in a bizarre Hollywood-style twist, the earlier patent trial contained an explosive allegation by Howard, the mechanical engineer. He claimed that Trinity manipulated photographs from the tests. In a sworn affidavit, Howard said the photograph of the 4-inch ET-Plus that was sent to the FHWA by Trinity as part of its approval documentation was not that of a 4-inch unit.
Howard said one photograph that Trinity and TTI sent to the FHWA purporting to be that of 4-inch head being tested for a head-on crash on May 27, 2005, was actually a photograph of a 5-inch head taken several weeks earlier on May 5, when TTI conducted a test on the end unit simulating an impact from the side.
“It’s a different photograph,” said Howard who runs the manufacturing consulting firm Stability Technology near Atlanta. Howard said it’s easy to tell that the photograph TTI submitted was from the May 5 test because the photograph has equipment in the background that was used to direct a truck into a side impact with the guardrail, not a head-on collision as what TTI purports to show.
“The photograph they claim was from the May 27 test was actually from the May 5 test,” Howard said in an interview. The FHWA declined to comment on Howard’s allegation.
Even if the design changes implemented after the test worked properly, Trinity may have violated FHWA’s policy that requires manufacturers to sell exactly the same product to the states that was disclosed to the regulators.
“You will be expected to certify to potential users that the hardware furnished has the same chemistry, mechanical properties and geometry as that submitted for acceptance,” according to FHWA regulations. Those same regulations require companies to notify FHWA of any dimensional changes. Many states, including Virginia require the same disclosure. Harman claims this was never done by Trinity.
“As a result, every ET-Plus sold from the fourth quarter of 2005 until today was and is ineligible for installation in every state in the Union,” Harman said. The FHWA’s acceptance of the ET-Plus System means that states can install the ET-Plus on roads and highway projects and get the costs reimbursed from the federal government.
Besides the safety of the driving public, a great deal of money is at stake – from Trinity’s profitability to the individuals responsible for the safety tests. TTI’s Bligh, according to a federal court filing, has personally made more than $1 million in licensing fees paid to him by Trinity for the right to produce the ET-Plus.
Guardrail manufacturing for Trinity, which trades on the New York Stock Exchange under the symbol “TRN,” has been extremely profitable over the past few years, especially as states have used federal stimulus funds to build new roads and highways.
According to Trinity’s annual report, Trinity Construction Products Group, which includes guardrail production, had a profit of $45 million, on sales of $484 million in 2012, including $376 million from highway products. The company’s net income in 2012 was $254 million, on revenue of $3.8 billion, up from $146 million on $2.9 billion in revenue in 2011.
The company’s stock has doubled since May 2005 and has recently been selling for more than $46 a share, giving Trinity a market capitalization of $3.6 billion. Trinity insiders, according to SEC filings, have also sold $28 million worth of company stock in the past 12 months, including more than $4 million by the company’s CEO, Timothy Wallace, reported in March.
Daniel J. Goldstein is a veteran financial and investigative reporter and producer whose work has been featured on Bloomberg Television, ABC, NBC and FOX affiliates as well as the Center for Investigative Reporting’s media partners. His Web site is www.dangoldsteinreporting.com. He resides in Frederick, Maryland.