Margulies Communications Group Response

Below is the letter in full by David Margulies of Margulies Communications Group dated 2/21/2013.

Dear Mr. Goldstein:

On February 5, you posted an article to your website entitled, “…Suspect Guardrail End Unit Raises Questions of Design and Regulation.” That story is misleading, and contains a significant number of inaccuracies leading your readers to the conclusion that they should question whether the ET-Plus® System is safe on the U.S. Highway System.

In fact, the ET-Plus® System remains, as it has for more than 12 years, accepted by the Federal Highway Administration (FHWA) for use on the National Highway System. The FHWA accepted the ET-Plus® System originally in 2000, pursuant to compliance with NCHRP Report 350 test criteria, and reiterated this acceptance again in 2012.

Specifically, your story contains a number of inaccurate statements, and although this letter does not address all of them, we would like to be on the record as correcting, at minimum, the following:

Your story states that the ET-Plus® System, “was originally approved by the Federal Highway Administration back in 2005”. That is not correct. The ET-Plus® System was originally accepted for use on the National Highway system in 2000, with the FHWA reiterating this acceptance again in 2012.
You state that that the ET-2000™ was “designed to work on all makes and models of cars and trucks at nearly all speeds.” That is not true. The ET-2000™ (as with the ET-Plus® System) is tested pursuant to specific NCHRP Report 350 criteria. That criteria define a narrow range of performance based on vehicle weight, speed and angles of impact, not “all makes, models and speeds.”
You indicate that the ET-2000™ is a freestanding device. It is not. The ET-2000™ (as with the ET-Plus® System) is attached and integral to a post-driven, cable-anchored system.
Later in the story, you state “Trinity changed the internal and external ET-Plus dimensions…slimming down the extruder head ….and narrowed the internal dimensions in which the W-beam would have to pass through when the device was hit…” That is not accurate. Texas A&M Transportation Institute (“TTI”), the inventor of the ET-Plus® System, suggested an improvement of the extruder head by reducing the guide channels attached to the head. Trinity responded by integrating these suggested improvements into their manufacturing process, after successful crash test performance of the ET-Plus® System incorporating the TTI suggested improvements, and after TTI’s approval of the same.
You state that “the changes helped reduce the cost of the device, from $2,800 to just $1,200 a unit, while also reducing the weight by nearly 100 pounds,” leading readers to inaccurate conclusions. Your facts are not correct. The difference between the ET-2000™ and the ET-Plus® System, two separate systems, is 87 pounds. Your article infers a $1,600 cost savings which is not true: 1) You are comparing two different and separate systems. 2) Any costs savings on the ET-Plus® System as a result of the guide channel reduction were immaterial to the total unit cost.
You say, “A video from a 2005 test by TTI…. Showed that even with a properly installed four-inch ET-Plus device…it would re-direct the vehicle back into traffic, rather than safely down the guardrail beam.” That is misleading. The ET-Plus® System is not designed to “redirect a vehicle safely down the guardrail beam.” It was designed by TTI to dissipate energy from an impacting vehicle and to extrude guardrail. The video from the 2005 crash test demonstrates that the ET-Plus® System performed properly by extruding the rail. The video also shows that the vehicle yawed away from the guardrail as is expected in such a quarter offset, head-on impact.
Just after you state, “TTI’s own documents show that this particular test…was considered a failure.” This is not accurate. Indeed, TTI compiled the crash test report in July 2005 and both TTI and FHWA agreed that the ET-Plus® System performed pursuant to the NCHRP Report 350 criteria.

[Dan Goldstein notes: In the document http://www.failingheads.com/docs/cc94test.pdf on page 36 Section K of the NCHRP report 350 criteria known as "Vehicle Trajectory" -- "after collision it is preferable that the vehicle's trajectory not intrude into adjacent traffic lanes." The report CLEARLY STATES. "The small car intruded into traffic lanes 8.5 meters (FAIL)"

In discussing the product Mr. Harman produced, you say that “Joshua Harman …reverse-engineered the [ET-Plus] using the original interior dimensions.” That is not accurate. Harman copied the ET-Plus® System head with the 4-inch guide channel, not the original 5-inch channel, as he claims. Measurements of the samples provided by Harman to Trinity in the patent litigation confirm this fact.
You state, “The Federal Highway Administration admits it has no data to confirm whether the ET-Plus is performing properly as Trinity claims.” You do not quote a source with the FHWA or indicate to whom that inflammatory remark should be attributed, and nothing could be further than the truth. The FHWA has video, data and photographs from 2005 and 2010 testing – and have used that information to confirm acceptance of use of the ET-Plus® System, as late as October 2012.
Your story says, “Documents also emerged during the patent trial … that while Trinity had indeed shrunk the size of the heads after it had been approved in 2005, it didn’t tell the Federal Highway Administration as required by law, whenever a change in design was made.” That is not true. Texas A&M/TTI (the engineer and designer of the product) recommended and Trinity manufactured the ET-Plus® System pursuant to the sound engineering judgment of the inventors at TTI. 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 that the improvements would not adversely impact product performance under the NCHRP 350 criteria. That is exactly the case in this instance. Moreover, improvements to the ET-Plus® System have been tested and deemed to have met NCHRP Report 350 in 2005 and again in 2010.
Your story reports that “Trinity mysteriously dropped the patent suit in October 2012…” This is inaccurate and misleading. As with many disputes in litigation, the parties participated in a settlement conference in the weeks before the trial. Trinity settled that lawsuit with Mr. Harman on terms that were satisfactory to Trinity. In the course of this Virginia litigation, Mr. Harman’s untested and unaccepted product was removed off the roads in Virginia, and Mr. Harman ceased manufacturing or selling his copy of Trinity’s ET-Plus® System.
Finally, you note that “Harman…was allowed to go forward with a federal whistleblower complaint…” and that “the federal government didn’t throw out the…case for lack of merit and allowed Harman’s suit to remain in the public domain…” In fact, the U.S. Government declined to intervene in the complaint. Trinity’s deadline for responding to the claims case has not passed yet, but we intend to respond forcefully to Harman’s false and defamatory accusations, which do not have any basis in fact or law. The U.S. District Court assigned to Harman’s False Claims act will rule upon the “merit”.

In summary, we believe your story has been written with a reckless disregard for the truth and is based on the allegations of an individual who has been involved in protracted litigation with Trinity. We stand by our product and will continue to aggressively protect the intellectual property and the outstanding reputation of the ET-Plus® System.

We appreciate your attention to this matter and look forward to your response.

Sincerely,

David S. Margulies