A common type of guardrail made by a highway manufacturing heavyweight is responsible for four deaths and nine injuries in states like Texas, Tennessee, Florida and Virginia, according to lawsuits filed across the country.
In November, Scripps reporters released information relating to at least eight lawsuits or attorneys general complaints that have been filed in recent years against Dallas-based Trinity Highway Products. The lawsuits claim a small alteration to a device at the beginning of guardrails, known as an end terminal or guardrail head, causes the device to perform incorrectly.
Now, months after the investigation, Scripps reporters have learned the Nevada Department of Transportation (NDOT) has removed the end terminal model, the ET-Plus, from it’s list of approved products.
“A change made to the size of the guard channels on the ET-Plus was not reported to NDOT, as required by our policy,” Meg Ragonese, the public information officer for NDOT wrote in an email.
In Nevada and Florida, the transportation department’s require companies to tell transportation officials about any changes made to products approved for use on highways.
Unlike in Nevada, the state of Florida has not taken any action. In November, State Representative Irv Slosberg said he would call for an investigation into the matter. So far, no movement in that direction has been made.
In Arizona, a transportation spokesman told reporters, the department follows directions from the Federal Highway Administration (FHWA) and it has not received any advisories that would recommend changes.
In an email Jack Todd, Vice President of Public Affairs for Trinity, wrote the ET-Plus remains approved for use on national highways.
“With regards to the Nevada Department of Transportation, the Federal Highway Administration reaffirmed its acceptance of the ET-Plus® System for use on U.S. Highways. Trinity and Texas A & M University continue to have a high degree of confidence in the performance and integrity of the ET-Plus ® System. In order to reinstate the product on Nevada’s Qualified Provider List, we are currently engaged in discussions with the Nevada Department of Transportation to answer any questions they have related to the ET-Plus® System.”
The ET-Plus model
Rather than sweep a vehicle off to the side, as the guardrail head is designed to do, the modified ET-Plus has caused guardrails to pull up, ramming through the front of vehicles and into cabins according to lawyers and plaintiffs. The original design, called the ET-2000, did not do that.
The claims made 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, from 5 inches to 4 inches wide and reduce the exit channel. The changes are significant enough to change how a guardrail reacts when hit by a car.
The guardrail heads cost roughly $1,500 each. There are hundreds of thousands of these devices on highways across the country, although, an official count isn't publicly known.
Trinity's president acknowledged the company failed to update the FHWA of the feeder channel change until 2012, but said the alteration hasn't threatened safety. Trinity's claim is backed by the FHWA which said it tested an ET-Plus with a 4-inch feeder channel in 2005 and found it met all safety standards — though the agency thought it was testing a 5-inch feeder channel 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.
"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 company wrote in a statement in November while declining a request for an interview. In response to the lawsuits, Trinity's lawyers denied any company responsibility for the crashes, writing in one case that it "denied that the guardrail end treatment system was defectively designed or manufactured." Click here to read the full statement from Trinity.
To date no independent safety agency has ruled the device unsafe. The lawsuits and complaints contend each crash involved a Trinity ET-Plus device, but most available crash reports don't specifically state whether an ET-Plus system was installed.
Still, that hasn't deterred lawyers and a competitor from questioning those crash test results, pointing to several collisions that produced deadly results.
"That's a situation where the ET-Plus as it was designed and built should have worked perfectly," Steven Lawrence, a lawyer representing one of the victims said. "Then you see the pictures and it looks like (the end terminal) exploded. It shouldn't be that way." Lawrence is based in Austin, Texas.
View Crashes with ET-Plus-related complaints in a larger map
Lawsuits against Trinity provide the following details in three cases:
- A 39-year-old Tennessee resident, Sabrena Carrier, crashed into an end terminal after suffering a medical episode about 100 miles northeast of Knoxville. The guardrail went through the vehicle's front end, hitting Carrier in the torso. She suffered severe damage to her organs and internal bleeding, dying five hours later.
- A New York woman, Marzena Mulawka, then 20, collided with an end terminal after being rear-ended in January 2010. The bump sent Mulawka's 2005 Ford Freestyle into an end terminal on a highway about 70 miles north of Pittsburgh. The guardrail penetrated the driver's side door and severed her right leg, among other injuries, her lawyers said.
- Florida resident Charles Pike, then 20, was a passenger in a Ford truck when the driver swerved off the road at about 60 mph in a rural county west of Orlando. The driver couldn't return to the road before hitting an end terminal. A guardrail came through the cabin, slicing Pike's left leg below the knee to the bone, according to a lawsuit. The leg was surgically amputated in October 2010.
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.
In recent years, Harman, whose SPIG Industry LLC manufactures highway products, including end terminals, has tussled with Trinity in court. He's sued the company, settled a patent infringement case against him and defended himself from a defamation lawsuit.
The ET-Plus debate has been a crusade of sorts for Harman, who wants the devices with a 4-inch feeder channel removed from the road. Harman said the original guardrail heads are "state-of-the-art" devices designed to save lives, but the multiple instances of guardrails piercing vehicles proves the ET-Plus isn't working.
"What we're getting is a device that has not been tested, not been approved, and it's not working," Harman said. "They're literally failing everywhere." Harman currently is traveling across the country documenting accidents on his website www.failingheads.com.
Responding to concerns
While federal engineers were satisfied with Trinity's response, there's still some concern from the American Association of State Highway and Transportation Officials (AASHTO) which is a nonprofit in Washington D.C. that represents the interests of all 50 state departments of transportation.
AASHTO sent a survey about guardrail end terminals to state departments of transportation in October 2012. Twenty-one 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.
In light of the findings, AASHTO Executive Director John Horsley recommended the FHWA re-review the performance of ET-Plus.
"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. The project could take up to three years.
WPTV Investigative Reporter Shannon Cake, 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.