Allegedly Defective Guardrails Poised to Become Largest Safety Recall in U.S. History?

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First reported on on Friday, September 19th and then in a follow-up report from September 24, ABC News identified a number of lawsuits that allege a dangerous safety defect in the metal guardrails used along many, if not most, highways and freeways throughout the United States. Citing the scope of deployment nationwide of these guardrails along with the horrific car accidents that have resulted, ABC News believes that we may be on the verge of one of the largest defective product recalls in history

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According to a number of sources including the ABC News report, a False Claims Act lawsuit against the company, and at least 9 personal injury lawsuits, Trinity Industries is alleged to have altered the design of parts of its guardrail end terminal without notifying government regulators. These alleged changes to the ET-Plus guardrail end terminal resulted in a railing that, rather than crumpling, acts like a spear and can impale drivers and passengers who are involved in an accident or collision where the vehicle strikes the railing. In light of these reports a number of states have suspended the installation of new guardrail units. Both Massachusetts and Missouri have placed the installation of new guardrails on hold. Nevada’s DOT has removed the railings from its approved products list.

How Does a Highway Guardrail Protect Against Injury?

A properly designed and functioning guardrail is intended to absorb much of the force and impact involved in a collision and channel it away from the driver and passengers. In short, these guardrails end terminals and other safety devices are designed to absorb and disperse the energy and forces involved over time. A simple way to think about it is if a person runs into a tree, they are likely to suffer a serious injury because the impact from hitting the tree is applied to that person (and the tree) all at once. If we were to wrap that tree in foam rubber padding, however, that padding would give way as the individual made contact with the tree thereby increasing the time the amount of time that same force could be dispersed and absorbed. Dispersing the impact over a greater period of time results in a less violent impact being experienced and thus, typically, less serious injuries.

A similar idea applies to the guardrail and its end terminals. A properly designed end terminal is designed such that it crumples so as to increase the period of time where the energy can be absorbed and further to avoid injuries due to impalement by the railing. According to a number of personal injury lawsuits, the railings that were redesigned by Trinity failed to crumple thus leading to catastrophic injuries where drivers and passengers were impaled or lost one or more of their limbs.

Why Were the Changes Made?

In an interview with ABC News, Dr. Dean Sicking of the University of Alabama at Birmingham who is the holder of many energy-absorbing patents, including ones the SAFER barrier used in NASCAR and for end terminal design, said that the changes made by Trinity were done without his knowledge. Furthermore, he stated that he did not know why these changes to the design would have been made by Trinity’s engineers.

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However, ABC News had obtained a number of Trinity internal documents that sheds light into the reasons and motivations behind altering the guardrail’s design. According to the documents presented by ABC, Trinity Engineers opined that shaving an inch off each end terminal (ET) ET-Plus model would save approximately $2 per a unit. In the aggregate, this was calculated to save the company about $50,000 per year and $250,000 over 5 years.

For Hartman, the individual who brought the qui tam action against Trinity, he believes that this change boils down to money. He said, “Once this comes out that they did this intentionally and for the sole purpose to sell more heads. It`s all about the money. They don`t want to recall this head. It`s going to cost too much money. They can fight the lives, the lawsuits of the personal injuries in court and come out ahead rather than replace that head.”

All guardrails and safety devices must undergo testing before it can be approved for use along the roadways of the National Highway System. Furthermore, the design specifications may not be altered without undergoing new safety testing. Trinity claims that even the new design is safe and that it meets all federal safety standards. However many believe that these tests do not reflect real-world circumstances or results. Others, like Hartman, have alleged that Trinity failed to obtain proper approval for these design changes on the ET-Plus.

Have Injuries Occurred Due to the Guardrails?

According to news reports and aside from the False Claims Act qui tam action pending against the company, at least 9 personal injury lawsuits have already been filed due to the alleged defect in the guardrail’s end terminal.

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In Robinson v. Trinity Industries, it is alleged that at least 2 times, first between 200 and 2005 and then in 2005, a “different or altered” version of the ET-Plus began to appear. According to the complaint, these new versions did not comply with the specifications for the rail height or the length of the feeder chute. This complaint alleges that, due to the allegedly improper design, Ms. Robinson’s vehicle was impaled by a guardrail causing it to overturn. Ms. Robinson suffered broken bones which required hospitalization and surgery. Further, her children were catastrophically injured with her son, Ethan Robinson, being pinned to the roof of the vehicle by the guardrail. Among others, Ethan suffered a traumatic brain injury and a serious injury to his pelvis.

In another personal injury lawsuit against Trinity, Traylor v. Trinity Industries, Inc., it is likewise alleged that the redesigned ET-Plus end terminal did not receive proper re-authorization for use. Furthermore, it is also alleged that in this instance the ET-Plus “throat lock[ed]” when the plaintiff’s vehicle struck the end terminal. The locked guardrail penetrated through the vehicle’s driver’s side floor area and impaled the plaintiff. Both of plaintiff’s legs were amputated due to this accident.

Other injuries due to the potentially defective guardrail end terminals include those of Rebecca Dryer of Pennsylvania who had her right leg amputated after a guardrail impaled her vehicle on a highway. Sabrina Carrier of Tennessee was impaled in the abdomen after striking a guardrail end terminal. She passed away 5 hours after the crash. Florida resident, Charles Pike, lost a leg after striking an end terminal in his pick-up truck.

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How Widespread is the Problem?

In short, this is an issue with potentially nation-wide consequences. Any state where modified versions of the ET-Plus were installed presents a potential risk to motorists. ABC News has opined that if these end terminals are indeed found to be defective and unsafe, the resultant recall may be the largest in the history of the United States. While motorists are limited in the types of direct action they can take, they can certainly reach out to their elected representatives and express their concern over highway safety. However, if you have already suffered an injury due to a potentially defective guardrail that “throat locked” and speared your vehicle, you should speak with an experienced personal injury and product liability attorney. At The Reiff Law Firm we have fought for injured Pennsylvanians and New Jerseyans for more than 34 years. To schedule your free and confidential consultation, call (215) 246-9000 or contact us online.

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