On January 27, 2014, Jay Traylor was in a panic.
“I've lost my legs in a wreck,” Traylor told a 911 dispatcher. “I've lost my legs in a wreck. Oh my God. Oh my God. Oh my God.”
As the 36-year-old drove alone on a North Carolina highway, his Isuzu Trooper veered sharply and slammed head-on into a guardrail, which cut through the SUV’s floorboards and straight into his seat.
Bleeding heavily, he managed to dial 911.
“I swear, I'm gonna die,” he told the dispatcher. “I'm gonna die.”
“Just stay with me, OK,” the dispatcher told him. “We're trying to get help there as soon as we can.”
Traylor saw the blood pouring out of his wounds and was not convinced. “You're not going to make it, I'm so sorry,” he told the dispatcher.
Here’s the good news: Traylor was wrong.
But the accident has changed his life forever.
Four months later, with both legs amputated below the knee, Traylor’s main mode of transportation is a wheelchair and he awaits delivery of a set of prosthetic legs.
He’s also filed a lawsuit against the manufacturer of the guardrail his SUV slammed into in HIllsborough, North Carolina, about an hour outside of Raleigh.
His lawsuit against highway manufacturing heavyweight Trinity Highway Products is one of many Scripps reporters have uncovered across the country.
And this week, a noted product safety organization joined the fray. Safety Research and Strategies filed a lawsuit against the federal government for access to information about the government’s approval of changes made to the guardrail.
The lawsuits claim that alterations the Dallas-based company made to their ET-Plus guardrails are responsible for four deaths and ten injuries in several states, including Texas, Tennessee, Florida and Virginia.
View Crashes with ET-Plus-related complaints in a larger map
The lawsuits detail the reductions in size of two portions of the guardrail in an area known as the end terminal or guardrail head, and claim those changes have caused the device to perform incorrectly and, in certain cases, pierce the front of vehicles and enter the vehicles’ cabins.
Safety Research and Strategies examines public safety issues and pushes for government transparency related to product approval and testing. The research firm has been involved with several high profile car manufacturing issues including the recent Toyota unintended acceleration investigation, where Kane testified before Congress.
Safety Research & Strategies President and founder Sean Kane and his firm want to know, “what does this federal agency have in its records to help us understand what happened?” he said. To do so, the firm filed a Federal Freedom of Information Act (FOIA) request, asking for documents like emails, testing reports and meeting minutes surrounding the approval of changes to the ET-Plus guardrail end terminal.
“We have been monitoring crashes and looking at the allegations and we are trying to get to the bottom of the who, what, where, when,” Kane said. “What went on between Trinity and the federal government?”
The ET-Plus model
Rather than sweep a vehicle off to the side, as the guardrail head is designed to do, attorneys contend the modified ET-Plus causes guardrails to pull up, enter through the front of vehicles and into cabins.
The claims made in Traylor’s lawsuit and others in Texas, Tennessee and Florida, among other states, boil down to changes made in 2005 to Trinity's ET-Plus guardrail head. They argue Trinity engineers reduced the feeder channel and guardrail head size. Attorneys argue the changes are significant enough to change how a guardrail reacts when hit by a car.
Where Kane and his group find cause for concern is some kinks in the usual approval process for the changes made to the ET-Plus.
Trinity's president acknowledged the company failed to update the Federal Highway Administration (FHWA) of the guardrail head change until 2012, but said the alteration hasn't threatened safety.
And while the FHWA which said it tested the updated ET-Plus with a 4-inch guardrail head in 2005 and found it met all safety standards, the agency thought it was testing a 5-inch guardrail head and never composed a formal approval letter for the smaller guardrail head. As of today, there is still no FHWA approval letter for the modified 4-inch head.
In addition, Federal safety engineers acknowledged that they didn't learn of the 2005 design change until 2012, when a competitor of Trinity's, Joshua Harman, brought it to their attention.
“We have seen real world examples of crashes and product changes not being documented as expected and required. So, what does this federal agency have in its records to help us understand what happened?” Kane said.
More safety concerns
The American Association of State Highway and Transportation Officials (AASHTO) sent a survey about guardrail end terminals to state departments of transportation in October 2012. AASHTO is a nonprofit in Washington D.C. that represents
the interests of all 50 state departments of transportation.
In the October survey, 21 states responded, with three indicating that guardrail end terminals were involved in crashes causing injuries or deaths. Two specifically referenced the ET-Plus. An AASHTO spokesman declined to identify the states or release results of the survey.
For Kane, this is where the disconnect lies. “From our standpoint, this has an appearance of a problem that needs a further investigation,” he said.
This disconnect is why Kane filed his FOIA request.
FOIA is a law that gives you the right to access information from the federal government. Kane and his firm have submitted 16 specific questions to the U.S. Department of Transportation, DOT. The federal government has provided documents in response to the request, but Kane does not feel like it is adequate.
A spokesperson with the Federal Highway Administration, Neil Gaffney, said the agency does not comment on litigation.
Earlier this year, Scripps reporters learned the Nevada Department of Transportation (NDOT) has removed the end terminal model, the ET-Plus, from its list of approved products, because the company did not comply with proper re-certification requirements.
In Nevada and Florida, the transportation departments require companies to tell transportation officials about any changes made to products approved for use on highways.
In Florida, the ET-Plus has been re-certified for use every two years since 2005 after Trinity responded each time in writing stating there were no major design changes to the device.
Last month, Barbara Kelleher, a Florida Department of Transportation public information officer, confirmed the ET-Plus product remains on the state’s approved product list.
“As soon as this alleged modification came to the attention of the department, the Trinity representative on file with the department was contacted,” Kelleher said in an email. “Trinity representatives acknowledged a change had been made and were responsive. They supplied all the documentation requested by the department. Professional engineers within the department verified that the ET-PLUS product was still approved by the Federal Highway Administration and that the modified product was in compliance with department specifications and standards.”
She said FDOT engineers will continue to monitor any new information regarding the Trinity ET-Plus and other similar products.
In light of the findings in the October 2012 survey, AASHTO Executive Director John Horsley recommended the FHWA re-review the performance of ET-Plus. Click here for more information on the review.
"This issue also brings to light a larger question of crashworthiness testing and whether a single crash test is good for a product's entire life-cycle," Horsley wrote in a December 2012 letter to an FHWA safety administrator. An FHWA spokesman declined to comment and no public records were found documenting the agency's response.
An AASHTO committee has set aside $650,000 to independently test the safety of all guardrail heads including the ET-Plus starting in summer 2014. Right now the committee is in the initial process of contract negotiations for a researcher to lead the testing. The project could take up to three years.
After receiving documents in response to his FOIA request, Kane said he went through the appeal process because they were “not able to get an adequate response.” When the appeal process was not successful, Kane felt it was time to file a lawsuit.
“We believe they have failed to release documents and have not responded appropriately,” Kane said. “How can these field concerns continue and there not be a federal investigation?”
The DOT has 30 days to file an answer to the complaint. After that, how quickly the case moves, is up to the judge, David Sobel, the lawyer representing Kane and his firm said.
In past cases, involving the same agency, additional documents have been released during the course of the litigation, Sobel said. “That is certainly possible here,” he said.
Response from Trinity Highway Products
Trinity has a high degree of confidence in the performance and integrity of the ET-Plus® System, which we are proud to manufacture and sell under license from Texas A&M University. The false and misleading allegations being made by Mr. [Joshua] Harman were reviewed by the Federal Highway Administration (FHWA). The FHWA re-affirmed its acceptance of the ET-Plus® System in October 2012 and its eligibility for use on the National Highway System.
A lawsuit was brought by Trinity and Texas A&M for infringement of the patents covering the ET-Plus® System. During this patent lawsuit,
Mr. [Joshua] Harman filed his own lawsuit against Trinity based on allegations of “false claims” associated with the ET-Plus® System. The U.S. Government reviewed his “false claim” allegations and declined to participate in the lawsuit. Trinity is defending itself against the individual making these allegations in court and is taking the steps necessary to fully protect the intellectual property of Texas A&M and the outstanding reputation of Trinity Highway Products and the ET-Plus® System.
WPTV Investigative Reporter Shannon Cake, WPTV Photographer Jim Sitton, Naples Daily News Reporter Jacob Carpenter, KGTV, 10-News Reporter JW August, KGTV, 10-News Reporter Mitch Blacher and KGTV, 10-News Executive Producer Ellen McGregor contributed to this investigation.