Victim: Highway guardrails ‘designed to save lives, not destroy them'

Guardrails and their terminal heads are designed to save lives.

But according to some lawsuits, they have become more dangerous since the guardrail head model changed in 2005.

Guardrail piercing cars

In 2010, a guardrail in Florida punctured the floorboard of a truck, slicing through the leg of the 18-year-old passenger.

Two years earlier in Tennessee, a mother died when a guardrail cut straight through the front of her sport utility vehicle.

And when Luke Robinson and his family moved to New York two years ago, they careened into a guardrail.

"When I started hearing what happened to these families and realizing the same thing happened to my family, I had no words. I was blown away – shocked, horrified," said Luke.

"Looking back,” he continued, “and seeing my children and seeing my youngest pinned in his seatbelt upside down, he wasn't saying anything. He was just screaming."

Photos show the guardrail punctured through the wheel well and pushed through the back seat. 

Two-year-old Ethan was still in his car seat, pinned by the guardrail.

"It was the most helpless I've ever felt, and the most terrified I've ever seen my children," said Luke.

Whistleblower

Josh Harman is a whistleblower.

“There's no question these heads are failing,” said Harman.

He filed a lawsuit on behalf of the American public against the manufacturer of most of the guardrails on the road today, Trinity Industries. 

“I want the truth out. These things are destroying families' lives,” said Harman.

Harman is Trinity's competition. During a patent dispute, he noticed the guardrail terminal heads were no longer working how they should. The newer models were smaller.

“I have been in the business 25 years, and I have never seen anything like this,” he said.

Ted Leopold, an attorney in Florida, is representing several people in a different lawsuit against Trinity Industries.

"What is out on the roadway is defective," he said. “On a grand scale, it's massive."

In the lawsuit, Leopold also claims Trinity changed the design of its guardrail heads and the newer models aren’t working like they should.

"Something had to go awry. This is not a normal way a guardrail is supposed to function."

The safety issue

These guardrails are all across the world, including 60 countries and all 50 states.

This is how they are supposed to work:

In the older model, the feeder chute was five inches wide and more than 15 inches high. The exit chute is one-and-a-half inches.

Upon impact, the railing should thread through the terminal head and pigtail out the side away from the car.

We checked guardrails across the Valley and found the majority are smaller, newer heads.

It's easy to check because the smaller ones are only four inches wide, not five.

Harman said with the smaller terminal head, the railing either gets stuck behind the head or acts like a projectile shooting through the car and its passengers inside.

“These changes are resulting in fatalities, injuries,” said Harman, “a guardrail is not supposed to cut a person in half.”

Government cover-up?

In a deposition from Harman's patent lawsuit, officials from the Federal Highway Administration (FHWA) claim they did not know about the changes to the guardrail until long after they were already lining roadways across the country.

The attorney who is off-camera asked, "Have they told you anything about the height of the feeder channel?” and the official responded, “No sir, we did not cover that topic."

According to Harman, that is a problem because federal rules also require guardrail makers to report any changes to the FHWA.

The official also said many factors contribute to the effectiveness.

The ABC15 Investigators obtained a draft letter where the same FHWA official questioned Trinity about the changes.

He wrote, "…the number of highway crashes with fatal injuries" involving the new design, "does not match the excellent history of the original" design.

But that letter was never sent.

And after meeting with Trinity executives, the feds sent an email allowing the changes.

"We believe there has been a very large cover-up,” said Leopold. “And the government has failed to step in and stop it."

Trinity response

Trinity executives declined repeated requests for interviews, but sent this response to our sister Scripps station in West Palm Beach, Florida:

Trinity Highway Products Statement:

            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 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. 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.

“I believe these changes were made for the purpose so they can sell more heads,” said Harman.

To date, the FHWA does not have a formal approval letter with diagrams for the newer ET Plus guardrail.

FHWA Statement:

"When the ET-Plus guardrail was tested in 2005, the end terminal with the four-inch feeder channels met all crash test safety standards, and FHWA has received no complaints from states over the past seven years during which the guardrail has been used nationwide.  Only in early 2012 did a competitor of the company that manufactures the device reach out to FHWA and other organizations to allege performance issues.

            "There are a several lawsuits in a number of courts and States that are part of an ongoing business dispute between the manufacturer of the ET-Plus guardrail and the competitor that contacted FHWA alleging performance issues.  FHWA is not party to any of the claims between these business competitors."

The whistleblower lawsuit is going forward led by a prestigious national law firm. The Department of Justice has not joined the suit, but is monitoring it.

“It's senseless. The things I've seen are senseless. It's like you can see it clearly in front of you, but everyone else has chosen to turn away,” said Harman.

Ethan’s recovery

Ethan's had two years to recover from the accident.

His father said he broke his pelvis in two places and had head trauma.

Today, he is running around like most 4-year-olds.

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