Judge rules mistrial in Trinity Highway guardrail case, cites possible witness tampering

Lawsuit questions safety of ET-Plus guardrails

A federal judge in Texas declared a mistrial in the possible billion-dollar whistleblower lawsuit involving popular guardrails that line our nation’s highways.

According to U.S. District Judge Rodney Gilstrap, there were “serious concerns” regarding witness truthfulness associated with the defendant, highway manufacturing giant Trinity Industries.

The whistleblower and former industry business owner, Josh Harman, filed a federal lawsuit on behalf of the American public in Texas where the company’s headquarters are located. Harman said the current Trinity guardrails, the ET-Plus model, are dangerous and deadly. He said the guardrails were never properly tested or properly approved by the government.

Trinity has said in statements the company stands behind its product and has called Harman’s allegations “false and misleading.”

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

According to a court transcript from Friday, July 18, Gilstrap said, “This case has been replete with errors, gamesmanship, inappropriate conduct, and matters that should not be a part of any trial where a fair and impartial verdict is expected.”

Gilstrap, according to the transcript, discussed the possibility of whether or not the president of Trinity Highway Products, Gregg Mitchell, attempted to intimidate a witness.

“You now know from yesterday's testimony that there are serious issues regarding whether or not the president of Trinity Highway Products intentionally attempted to intimidate a witness from appearing in this case, tampered with a witness, or committed perjury,” he said. “That was brought out to you yesterday.  It cannot be taken away from your minds or your conscience.”

In an email, Trinity wrote the allegations against Mitchell are untrue and that the company “looks forward to re-presenting the facts in this matter." (Read the full statement from Trinity below.)

The federal judge also pointed fingers at the plaintiffs, according to the court transcript.

Gilstrap said the plaintiffs took steps to prevent the witness from being deposed by the defense and “effectively hounded him.”

“I believe the plaintiffs took steps to hide this witness and unfairly spring this
witness on the defendants,” Gilstrap said.

The mistrial was declared less than a week into the trial being held in Marshall, Texas, about 150 miles east of Dallas.

“In declaring a mistrial, the court found last Friday that there were serious allegations regarding whether the President of Trinity Highway Products had engaged in witness tampering or committed perjury,” Karen Dyer, one of the lead attorneys for Harman, said. She is an attorney with Boies, Schiller & Flexner LLP.

The guardrails were installed throughout the country in all 50 states. Harman said there have been hundreds of accidents that caused more harm, as a result, of the guardrail.

In this type of guardrail, the terminal head is supposed to take the impact and slow down the vehicle. The railing is supposed to channel through the head and pigtail out the side — away from the car. But, there has been accident after accident where the railing gets jammed up and often pierces the vehicle like a spear. They cut through the cars and any people in its way.

RELATED: Victim calls 911 after guardrail crash cuts victim's legs [VIEWER DISCRETION ADVISED]

One of the most recent cases was January 2014 in North Carolina.  An Isuzu Trooper hit a guardrail head-on and the driver’s legs were severed.

“I've lost my legs in a wreck,” the driver told a 911 dispatcher. “I've lost my legs in a wreck. Oh, my God.” The dispatcher told him to stay calm. “I'm trying, but this blood is going out too fast,” said the driver.

“A guardrail is not supposed to cut a person in half,” Harman said.

Harman alleges Trinity slowly decreased the dimensions of the terminal head which is the part that takes the car’s impact. And, by making it smaller the railing cannot channel through the head and pigtail out the side –away from the car.

In a June letter the U.S. Department of Transportation’s Federal Highway Administration, reiterated that the ET-Plus guardrail model is eligible for federal reimbursement. The letter was sent after the transportation agency received inquiries from State DOT’s and FHWA Division Offices regarding the federal-aid eligibility of the the guardrail manufactured by Trinity.

For details regarding the changes in dimensions, read the original story.

A new trial is expected later this year, possibly in the fall. It would be tried in front of a new jury.

“We look forward to retrying the case as expeditiously as possible,” Dyer said. “Holding Trinity accountable for its deception of the federal government and seeking that all of the unsafe, secretly-modified head terminals be removed from the road.”

Trinity’s official 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 by Mr. Harman were reviewed by the Federal Highway Administration (FHWA).  The FHWA re-affirmed its acceptance of the ET-Plus® System in October 2012 and yet again in June 2014 for its eligibility for use on the National Highway System.  The ET-Plus® System remains accepted by the FHWA in what the FHWA characterizes as an “unbroken chain” of acceptance since 2005.

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 will continue to defend 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.  On July 18, 2014, Judge Gilstrap of the U.S. Eastern District of Texas declared a mistrial in the ongoing litigation with plaintiff Joshua Harman in his False Claims Act case against Trinity.  A new trial is expected later this year and Trinity looks forward to re-presenting the facts in this matter.

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