New concerns about controversial guardrails

Posted at 4:21 PM, Dec 17, 2015
and last updated 2015-12-17 22:24:13-05

Virginia will begin removing a controversial highway guardrail system from some of its roadways after a crash test confirmed its concerns about the safety of the device, state officials said Wednesday.

Virginia spent about $250,000 to perform its own tests of Trinity Industries Inc.'s ET-Plus System this year after deeming the safety tests overseen by the federal government to be insufficient. Federal officials announced earlier this year that the system had passed all eight crash tests they requested.

RELATED: A look back at ABC15's highway guardrail investigation

The guardrail system, which is the focus of more than a dozen personal injury and wrongful death lawsuits across the country, passed four tests financed by Virginia, according to the crash tests reports, which were first obtained by The Associated Press on Wednesday.

But state officials are raising concerns about one of the two other assessments called "shallow-angle tests," which shows what happens when a vehicle hits the device at an angle.

In that test, the system performed in a way that "could have serious consequences" for vehicle occupants, with the truck overturning after hitting the device, Garrett Moore, the department's chief engineer, said in a memo to employees.

"We look at that and we see a problem there," Moore said in a conference call with reporters Wednesday. There was no formal determination whether the device passed or failed the two shallow-angle tests performed by KARCO Engineering LLC at a facility in California.

The long metal guardrail is supposed to flatten out into a ribbon when hit, absorbing the vehicle's impact and reducing the chance of death or injury. But a lawsuit filed by Virginia's attorney general and several lawsuits against Trinity nationwide say that changes made to the device cause it jam, turning it into a deadly spear upon impact.

Trinity has called Virginia's additional tests "questionable and unreliable" and has accused state officials of trying to set it up to fail in order to support its lawsuit against the company. Trinity has especially criticized the use of the shallow-angle tests, which the federal government didn't require. 

Jeff Eller, a spokesman for Trinity, said the ET Plus System is "the most successfully crash tested product of its kind" and that Virginia's tests confirm that the system meets federal safety standards.

Moore estimated it would cost about $100 million to replace all of the roughly 11,000 ET-Plus Systems on Virginia's roads, but the state may remove only those that are located on high-speed roadways, where crashes are more severe. The devices will be replaced with guardrail systems that meet updated safety standards and will be 31 inches tall instead of the current 27.75 inches, Moore said. That process will begin by next fall, the department said.

Virginia Attorney General Mark Herring, who sued Trinity in 2014, says the company defrauded the state by failing to disclose changes made to the ET-Plus units that he and other critics contend made the device more dangerous.

A federal judge in Texas ordered Trinity in June to pay $663 million in damages for failing to tell the federal government about the design changes. Trinity is appealing that decision, which resulted from a lawsuit brought by a Trinity competitor in Virginia on behalf of the government.

Trinity has used newspaper and online ads in Virginia to aggressively defend its product, which it says functions as it's supposed to when properly installed, maintained and repaired. Trinity claims that the department didn't properly install the guardrail system for any of the tests and blasted state officials for not allowing it to inspect the testing facility and vehicles.

"We think it's time for VDOT to stop focusing on litigation and instead spend their money on real roadway safety issues," Trinity says in a video on its website.

An estimated 200,000 ET-Plus units are on roadways across the country. But more than 40 other states quit installing the devices after the federal jury found in Oct. 2014 that the company had defrauded the government. After federal officials announced that the design met safety standards in March, the company, which had stopped manufacturing the devices, said it would resume shipments.

In Arizona, transportation department officials told ABC15 that they removed the ET Plus model from it's approved products list last year.