EXCLUSIVE: MUST CITE DANGOLDSTEINREPORTING.COM
Shattered Limbs, Lives Raise Questions Over Guardrail Design, Gov't Oversight
Editor's Note, 2/26/2013: More than 20 days after this story was published and 25 days after the company was contacted for comment, Trinity's representative, David Margulies raised several objections to the story in an e-mailed letter. I have published his response in its entirety while including several clarifications and Trinity's responses throughout).
CLICK HERE to read the response from Davd Margulies of the Margulies Communications Group, dated 2/21/2013, in full.
By Daniel J. Goldstein
In May 2010, Ervin Pinckney Sr. was driving his Ford F-150 pickup on Route 50 near Bowie, Maryland when he lost control and hit the end of a highway guardrail, head-on. What happened next shocked the 77-year-old retired window washer.
“The guardrail came up through the floor of the truck,” said Pinckney, who lives in Odenton, Maryland. “It nearly cut my head off,” he said in an interview.
Indeed, the guardrail went completely through the floor, the passenger cab, and even the bed of the truck before exiting out the lift gate. A tow-truck driver who responded to the crash marveled at the damage and sent a camera-phone video for the local TV station to air.
But what happened to Pinckney, who was billed more than $6,000 by the state of Maryland to repair the damaged guardrail that sliced through his truck and he says nearly killed him, may not have been a freak accident worth just a few seconds on local TV news.
The same thing happened to the now 24-year-old Charles Pike in Lake County, Florida, in October that same year, although he wasn’t as lucky. When the truck he was traveling in swerved to avoid an animal, but instead hit a guardrail end unit head-on, the guardrail entered through the right front fender of the pickup truck, severing his left leg below the knee. Doctors were unable to reattach it.
And Sebrena Carrier, a 38-year-old woman in Bristol, Tennessee, who blacked out at the wheel of her 2006 Honda Ridgeline, may be another victim, when her vehicle struck an end unit of a guardrail on Dec. 17, 2008. The guardrail entered the passenger compartment and Carrier suffered multiple fractures and damage to internal organs. She died five hours after the crash at Wellmont-Bristol Regional Hospital, according to court documents filed in September 2012 in Circuit Court for Sullivan County in Bristol, Tennessee.
The catastrophic results of these head-on accidents involving guardrail end units may not be coincidences. According to evidence, in the form of a recently-unsealed federal whistleblower lawsuit and other court documents, e-mails between federal and state highway officials, and interviews with independent traffic safety experts and industry insiders, appear to show that the accidents may have resulted from a design defect of a guardrail end unit.
The manufacturer is Trinity Highway Products, a unit of Trinity Industries of Dallas, Texas. The unit in question is known as the ET-Plus, sold in all 50 states and exported to 60 countries. While the ET-Plus was originally approved by the Federal Highway Administration (FHWA) back in 2000, the version in question was approved in 2005. The clearance by the Federal Highway Administration is critical as it allows state agencies to be reimbursed by the U.S. taxpayer when they install federally-approved safety devices like the ET-Plus.
So just what is the ET-Plus? The ET-Plus is a structural-steel cap assembly weighing approximately 170 pounds, which sits on the end of many guardrails on the shoulder and medians of many highways and roads around the country. It is described by Trinity as a “cost-effective, energy-absorbing end unit.”
It was an evolution of the long-used and well-regarded ET-2000, created by the dean of traffic safety devices, Dean Sicking, a professor emeritus of civil engineering at the University of Nebraska, Lincoln. Sicking, now at the University of Alabama designing safer football helmets, declined to be interviewed on the record for this story, saying he had once been sued by Trinity Industries over patent design of a similar guardrail unit and didn’t want to reopen old wounds.
Still, Sicking’s device, which was first approved in 1991, was the model for many guardrail end units, including the ET-Plus. While all the devices have limitations based on vehicle weight, speed and angle of impact, the physics of how they were supposed to perform in a head-on crash were simple: Transfer the kinetic energy from the impacting vehicle to the guardrail by having the W-shaped beam, which makes up the majority of guardrail systems, extrude through the head while the head’s breaker bars used the energy of the impacting vehicle to shear off the posts that hold the beam about 31 inches off the ground.
The crash appears violent, but just like a Formula One race-car shattering into hundreds of pieces on impact, while transferring the energy away from the driver. This video from Texas A&M Transportation Institute at Texas A&M University, where Trinity tests its traffic safety equipment, shows exactly how it should work.
The head stays in place while the W-beam extrudes through the head -- flattening out to form a candy-like ribbon of steel. The kinetic energy of the vehicle striking the post is then transferred to flattening out the W-beam, bringing the vehicle safely to a halt as it rides down the beam and the energy is dissipated. Highway crews can just remove the ribboned-out steel and bolt a new head onto the post and the device can often be back in service the same day.
In fact, more than a half-a-million ET-2000 units, costing $2,800 each, were installed in the United States and around the world, according to the University of Nebraska’s Web site. But back in 1999, Trinity and TTI began working on a less-costly version of the ET-2000, which they hoped could work just as well.
The first version of the ET-Plus, made from 1999 to 2004 did just that. A 2008 study by the University of Wisconsin for the state’s Department of Transportation showed that the ET-2000 was involved in just one fatal accident statewide over a three-year period between 2003 and 2005 and the initial version of the ET-Plus had none.
But according to court documents, Trinity, at the suggestion of the Texas Transportation Institute changed some of the internal and external ET-Plus dimensions beginning in 2005, slimming down the width of the extruder head from five inches wide to four inches and narrowing the internal dimensions in which the W-beam would have to pass through when the device was hit head on in a collision with a car or truck.
The changes, which Trinity's representative David Margulies said were successfully crash tested, helped reduce the cost of the device, from $2,800 in the ET-2000 model to just $1,200 a unit for the ET-Plus while also reducing the weight by nearly 100 pounds (Trinity says the weight savings was 87 pounds). Margulies said the slimming of the guide channels was "immaterial" to the overall cost of the ET-Plus.
Trinity officials such as Brian Smith, the company’s vice president of sales, in depositions last summer in a related patent suit called the changes “cosmetic” and added that “we’re talking about three quarters of an inch here, an eighth of an inch here” and not material to the safety of the design. But the allegations in the federal lawsuit, other court documents and interviews with some safety experts make a different claim.
According to these critics, when cars hit the ET-Plus manufactured after 2005, instead of the device “ribboning-out” as it was engineered to do, the W-beam had a tougher task of extruding due to the increased friction of the narrower head and “locked-up.” It then bent back on itself, forming a spear that was capable of slicing through an engine block and impaling drivers and passengers, court documents claim.
“When the current production of the ET-Plus system throat-locks it is incapable of absorbing an impact,” says Ted Leopold, the attorney representing Charles Pike and Sabrena Carrier.
Byron Bloch, an independent auto safety expert in Potomac, Maryland, who has consulted for the National Highway Traffic Safety Administration (NHTSA) as well as ABC News and CBS News, said while the design changes for safety devices like the Trinity ET-Plus are common, the evidence emerging should prompt at least a review by the Federal Highway Administration.
“Changing a proven design is often the one catalyst that leads to unnecessary death and injury and I see the same pattern here,” said Bloch, who has spent more than 30 years in the auto safety business. “This type of spearing should never occur. Any time a guardrail spears and penetrates its interior, that tells you that the guardrail design is faulty.”
Trinity officials who say on their Web site that their products “have been tested, approved and accepted as meeting established federal and state safety guidelines” deny this is the fault of the ET-Plus. Calls for comment to the Dallas-based company were referred to David Margulies of the Margulies Communications Group, a hired spokesman for Trinity who according to his Web site, specializes in "crisis prevention management" for corporations.
Margulies referred this reporter to the company's own court documents, where they have blamed incorrect installation of their device by, in some cases, prison work crews with no technical training as well as drivers striking the device at speeds higher than the safety device can compensate for.
The company has also claimed that spearing incidents involving their end units may have been the result of not having damaged ones replaced by state highway crews after they had been hit. Trinity also said that state crews were to blame in the case of Charles Pike for using mismatched parts from various end-unit systems that were never designed to work together.
But a video from a 2005 test by Texas Transportation Institute, which patented the ET-Plus and licensed it to Trinity, showed that even with a properly-installed four-inch ET Plus device even if it didn’t lock up, it would redirect the vehicle back into traffic, rather than safely down the guardrail beam. TTI’s own documents show that this particular test using a 1997 Geo Metro was considered a failure.
According to the"Vehicle Trajectory" criteria section of the test, known as the NCHRP 350, "after collision, it is preferable that the vehicle's trajectory not intrude into adjacent traffic lanes." But in this case, "the small car intruded 8.5 meters into traffic lanes. (FAIL)."
Over the past 20 years, Trinity has paid TTI more than $30 million in license fees for the right to manufacture safety devices like the ET-Plus, according to court documents, including more than $1 million to the head of TTI, Roger Bligh, a former protégé of Dean Sicking. A TTI representative did not return e-mails and phone calls seeking comment from Bligh.
Enter Joshua Harman, a burly, mustachioed 43-year-old maker of highway safety products in Bristol, Virginia. In 2009, he tried to manufacture his own version of the Trinity ET-Plus end unit system when he believed that the patents had expired. His company, SPIG Industry LLC, reverse-engineered the 4-inch unit. That’s where he found himself in trouble. It turned out that the patents had not expired on the particular model he tried to duplicate and Harman wound up in a patent suit with the giant manufacturer.
At the patent trial in September 2011 in U.S. District Court in Virginia, Trinity claimed that Harman’s product, which they called “knockoffs,” compromised the safety of the design. But Harman’s design used the original internal specifications -- not the newer ones currently on the roads whose safety has been questioned.
“We looked at the design that was on the road, we knew it wouldn’t work with the internal dimensions we saw, so we went back to the original specifications. We got it right, Trinity was the one that got it wrong,” Harman said in an interview.
Trinity’s management vigorously disputes that, saying that Harman did no testing of his design as required. Trinity also tried to blame many of the accidents involving the ET-Plus on Harman’s design, according to trial documents. But Harman’s lawyer, Walter Kelley of Jones Day says Harman’s company made only 292 units, and only 244 were installed in Virginia between 2009 and 2011, and all were withdrawn from service as part of the settlement of the patent suit.
Harman’s devices were involved in five accidents, but he said that because they stuck to the original design they performed “flawlessly,” Harman noted with grim irony. Still, he said, it begs a bigger question. “If my design was at fault, why are these accidents still occurring after all my manufactured units are off the road in states where I never installed any?” Harman asked.
The Federal Highway Administration admits it has no cumulative data compiled state-by-state to answer Harman's question. In a statement, the FHWA said that the ET-Plus guardrail "was tested in 2005, the end terminal with the four-inch feeder channels met all crash test standards, and FHWA has received no complaints from states over the past seven years during which the guardrail has been used nationwide."
But Harman and others have raised several questions on just how the Federal Highway Administration approved the ET-Plus in the first place in 2005. For one, the Sept. 5, 2005 approval letter from the FHWA allowing the ET-Plus to be used by the 50 state highway agencies and be reimbursed by the U.S. taxpayer for installing them, there were no schematics of the approved and tested design of the extruder head end unit attached to the letter. That’s something required in all federal approval letters, known as a CC-94.
“Drawings showing details that are key to understanding the performance of the hardware should also be submitted to facilitate review,” the FHWA says on its Web site, part of a guide towards helping companies gain approval for their safety devices.
Harman claimed that meant that state agencies couldn’t compare the actual dimensions of the product that was tested and what was actually being installed on the nation’s roads. “You can’t have these devices on the roads without those schematics,” said Harman.
Documents also emerged during the patent trial between Trinity and SPIG that while Trinity had indeed shrunk the size of the heads after the 2005 approval, it didn’t tell the Federal Highway Administration as required by law, whenever a change in design is made.
In fact, documents showed that Trinity admitted only on Feb. 14, 2012, more than seven years after the device was in service, that several changed measurements of the ET-Plus “was a design detail omitted from the documentation submitted to the agency,” the company said in a letter to FHWA, which was also sent to state highway agencies as well.
Even if it was an inadvertent omission, the Federal Highway Administration has rules for that. The agency says on its Web site that traffic safety devices, when “any structural change to eligible hardware where the effect on the crash test performance of the hardware is uncertain should undergo, at minimum, a finite element analysis.”
David Margulies, in a Feb. 21 letter, said that "improvements to welding and dimensional measurements are not required to be submitted and approved by the FHWA so long as the inventors at TTI determined (using good engineering judgment) they were certain the improvements would not adversely impact product performance. That is exactly the case in this instance."
But that still doesn’t clear up why some ET-Plus units were involved in collisions in which the device has speared into vehicles and how aware the Federal Highway Administration is of the issue. The patent trial last summer revealed that a key Federal Highway Administration official, Nicholas Artimovich, a highway engineer in the Office of Safety Design, was told not to answer, when he was asked whether the four-inch ET-Plus head design by Trinity, on the road today, was even safe.
“Is it an acceptable design?” Walter Kelley, an attorney representing SPIG Industry, asked Artimovich, the agency’s chief traffic safety device expert, in a July 26, 2012 deposition, at the Department of Transportation’s headquarters in Washington D.C.
“I instruct him not to answer that,” objected Wynne Kelly, a lawyer for the United States Attorney’s Office. The FHWA declined to make Artimovich available to comment for this article.
But perhaps most interesting, during the trial, a draft letter composed by the Federal Highway Administration, addressed to the aforementioned Brian Smith, Trinity’s vice president of international sales, surfaced by accident. The one-page, undated draft letter, which was authenticated by the FHWA showed that the federal agency indeed had concerns about the ET-Plus several months earlier, in April or May of 2012.
The letter said not only did Trinity “make no mention of some of the visible differences” between the extruder heads and what was on file with the federal agency but that “W-beam guardrail terminals using the ET-Plus head may not be performing as intended.” The letter also said “the number of highway crashes with fatal injuries involving the ET-Plus do not match the excellent history of the original ET-2000 terminal.”
The FHWA didn’t say why the draft letter, written by Nicholas Artimovich’s superior, Michael Griffith, the director of the Office of Safety Technologies, was never sent to Trinity. The FHWA also declined to make Griffith available for an interview.
And despite Harman being the defendant in the trial, Trinity dropped the patent suit against Harman’s SPIG Industry in October 2012. Harman said the Dallas company made him a confidential settlement that allowed both parties to walk away from the patent lawsuit. Trinity says it got what it wanted in the settlement, namely the removal of the SPIG-produced ET-Plus off the road.
Moreover, according to court documents, and contrary to the FHWA's assertion that they had "received no complaints from the states," some state officials were already beginning to question the safety record of the ET-Plus. Keith Cota of the New Hampshire Department of Transportation wrote to FHWA’s Nick Artimovich in October 2012 after learning of the legal dispute between Trinity and SPIG, Harman’s company.
“We have many, many of these terminal units on our high speed facilities and this certainly causes me some strong concern for crash worthiness of the ET-Plus and ET-2000 that we have and are installing each year,” Cota wrote in a Oct. 9, 2012 email to the FHWA. “Should I be worried? Or worst yet, should I brief my chief engineer? I don’t like the box this puts me in!”
The subject line of the e-mail? "Complaint on failing heads for terminal (sic) unit" Cota did not respond to voice-mail and e-mail requests for comment.
Still, no states have conducted any independent analysis of the ET-Plus post-2005, according to Erik Emerson of the Wisconsin Department of Transportation, whose agency had commissioned the earlier University of Wisconsin study looking at the performance of various end-units between 2003 and 2005.
“In the future we may look to do another report, but that would be a number of years from now,” Emerson said in an e-mail.
Meanwhile, SPIG Industry and Trinity have been going in opposite directions, financially. Trinity, according to government filings, had a net profit of $142 million in 2011, on revenue of $3.1 billion, helped in part due to increasing road construction from the Obama administration’s stimulus plan as well as soaring demand for railroad tank cars amid the country’s shale oil boom.
The company’s highway products division is one of its best performers financially, with profit margins on products like the ET-Plus at 25 percent, court documents claim. The highway products division had sales of $377 million in 2011, up more than 20 percent from a year before when it had $313 million in sales, a jump in itself of more than 31 percent from 2009, according to government filings.
Trinity also spent $235,000 lobbying the federal government between 2010 and 2012, just when the dispute over the ET-Plus’ safety emerged, according to the Center for Responsive Politics, which tracks lobbying and corporate political donations. Still, it isn’t clear what Trinity lobbied the federal government for.
Harman said his business has suffered as he claimed Trinity conducted a whisper campaign against his company, telling various state highway agencies not to buy his company’s product. He said he had to lay off most of his 115-plus employees at his fabrication plant in Bristol; he’s now just down to eight.
But accidents involving the ET-Plus continue to occur, some with serious injuries. As a result, Harman himself kept a log of the accidents, even creating a Web site in January 2012 documenting what he says are more than 200 accidents involving the ET-Plus at www.failingheads.com.
Harman also was allowed to go forward with a federal whistleblower complaint, which was filed last March and was unsealed this month by U.S. District Court judge Rodney Gilstrap in Texas. The suit, under the False Claims Act of 2010, calls for the federal government to investigate what Harman cites as fraud on the part of Trinity in saying its ET-Plus has passed the necessary safety tests to be on the road and that states can get federal reimbursement when they install it.
During the nine months when the complaint was under seal, the federal government declined to take over the investigation as the False Claims Act permits, but it didn’t throw out the case for lack of merit and allowed Harman’s suit to remain in the public domain, according to Josh Maness, the attorney who filed the suit on behalf of Harman.
Still, Trinity Highway Products president Gregg Mitchell called the claims on Harman’s Web site “false and defamatory” and his company has sued Harman in a separate lawsuit in Georgia demanding that he remove the Web site. (Update 4/8/2013. Trinity has dropped its defamation lawsuit against Harman in Georgia)
Trinity also claims that Harman is trying to profit from the dispute by encouraging trial lawyers and journalists to investigate the ET-Plus. Harman denies that profit is his motive for his Web site, saying he won’t pull it down until Trinity or the FHWA remove the ET-Plus terminals from the road.
Harman, a construction worker by trade, says he shares a special bond with the victims of these accidents, having lost his left leg in a construction accident in 1991 when he was 21 years old. “I know what they’re going through, I’ve been there myself,” he said.
Still, he refused any further offers from Trinity, saying they’re trying to buy his silence. “Unless their settlement offer includes a full product recall, I’m not stopping,” Harman said.
“I have two daughters, ages 9 and 12 who will be getting their drivers licenses soon. I won’t let them drive with these guardrails still out there,” he said. “It might not be my daughter, but it could be somebody else’s and I can’t let that happen.”
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