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Product safety organizations ask for documents in Trinity whistleblower case to be made public

Posted at 11:05 PM, Aug 15, 2014

Two product safety organizations and a national public interest law firm are asking for court documents in the possible billion-dollar whistleblower lawsuit involving popular guardrails that line our nation’s highways to be made public.

Lawyers for Public Justice filed a motion on behalf of The Center for Auto Safety and The Safety Institute to unseal documents associated with the federal whistleblower lawsuit against Trinity Industries. The lawsuit ended in a mistrial last month.

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' 

The trial ended in a mistrial after U.S. District Judge Rodney Gilstrap said there were “serious concerns” regarding witness truthfulness associated with the defendant, highway manufacturing giant Trinity Industries.

Some of the court records in the case were sealed, leaving the public in the dark.

”Documents filed under seal in this action are of immediate importance to the motoring public as well as state and federal DOTs,” said Sean Kane, The Safety Institute’s founder.

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.

Scripps reporters have been reporting on lawsuits filed by victims across the country. The lawsuits claim alterations the Dallas-based company made to their ET-Plus guardrails are responsible for four deaths and 10 injuries in several states, including Texas, Tennessee, Florida and Virginia.

View Crashes with ET-Plus-related complaints in a larger map

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 that cuts through the cars and sometimes people in its way.

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

“Trinity shouldn’t be allowed to hide the truth by sealing records in a public lawsuit,” said Leslie Brueckner, Public Justice Senior Attorney. “Lots and lots of documents were sealed just because Trinity asked for them to be sealed. There was never any effort by Trinity to show that secrecy was warranted, as far as we can tell.”

Brueckner said keeping the court records sealed is a violation of the First Amendment, but her real concern is it prevents the public from having access to information about a “potentially dangerous product.” 

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.

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.

The group filed a lawsuit against the federal government for access to information about the government’s approval of changes made to the guardrail.

In the motion, the groups are asking the court to immediately unseal all the documents or force Trinity to prove why the documents should be kept sealed.

Brueckner said Trinity is planning to oppose the motion but the plaintiff side, representing the whistleblower, is officially taking no position.

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

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.

Lynn Walsh is a data content producer and investigative reporter on the Scripps National Desk. She may be followed on Twitter through the handle @LWalsh.

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, KGTV, 10-News Executive Producer Ellen McGregor, KNXV Producer Maria Tomasch and KNXV Reporter Dave Biscobing contributed to this investigation.