A guardrail system lining national highways is raising questions about safety and effectiveness
Lawsuits blame changes to guardrail for deaths
Shannon Cake , Lynn Walsh , Jacob Carpenter, Naples News
10:28 PM, Nov 25, 2013
4:37 PM, Nov 27, 2013
West Palm Beach, Fla. - As a law enforcement dispatcher, Lena Tucker was accustomed to highway patrolmen stopping at her bungalow in Montague, Texas, a tiny town outside Dallas.
So on the September 2012 morning her husband died in a car crash, she thought nothing of the trooper at her front door.
"When he got out of the car and took his hat off, he just said, ‘Oh God, Lena, I'm so sorry," Tucker recalled last month.
About halfway through his 90-minute work commute into downtown Dallas, a drive he made for 20 years, Melton "Shain" Tucker fell asleep at the wheel on Highway 81. He crashed his silver 2012 Chevrolet Cruze into the beginning of a guardrail, which pierced the car's front and rammed into his head, killing him instantly. Tucker was 46.
More than a year later, Lena Tucker is convinced her husband's death could have been prevented. She's filed one of
at least eight lawsuits or attorneys general complaints in recent years against Dallas-based Trinity Highway Products, claiming a small alteration to a device at the beginning of guardrails, known as an end terminal or guardrail head, has caused four deaths and nine injuries, a Scripps investigation led by WPTV-TV in West Palm Beach, Fla., found.
Rather than sweep a vehicle off to the side, as the end terminal is designed to do, the redesigned ET-Plus has caused guardrails to pull up, ramming through the front of vehicles and into cabins, lawyers and plaintiffs say. They argue Trinity engineers reduced a small part, called a feeder channel, from 5 inches to 4 inches wide, which is significant enough to change how a guardrail reacts when hit by a car. Hundreds of thousands of the roughly $1,500 devices are on highways across the country, they say, though an official count isn't publicly known.
Trinity's president has acknowledged the company failed to update the Federal Highway Administration, or FHWA, of the feeder channel change until 2012, but say 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.
"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 said in a statement, declining a request for an interview. In response to the lawsuits, Trinity's lawyers have 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.
Howard Webb, a district design engineer for the Florida Department of Transportation, said the guardrail "is definitely not supposed to pierce through your car," but he hasn't seen that happen in Florida.
"I've seen them in pictures, but I can't recall such instances in Florida. Not in the past 20 years," Webb said.
To date, none of the eight lawsuits or complaints have been settled or reached a jury, and no independent safety agency has ruled the device unsafe. The lawsuits and complaints contend each crash involved a Trinity ET-Plus device, but 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. Should any of the lawsuits reach a jury, the verdict could largely come down to how a layperson interprets complex mechanical and engineering testimony, said Lena Tucker's lawyer, Steven Lawrence.
Lawrence said Shain Tucker's vehicle crashed into an ET-Plus end terminal and suffered damage consistent with a collision into a defective device. Lena Tucker has filed a complaint with the Texas Attorney General against Trinity, part of manufacturing giant Trinity Industries, which reported revenues of $3.8 billion in 2012. It's a first step toward suing the company, Lawrence said.
"That's a situation where the ET-Plus as it was designed and built should have worked perfectly," said Lawrence, based in Austin, Texas. "Then you see the pictures and it looks like (the end terminal) exploded. It shouldn't be that way."
In February 2012, Luke Robinson piled his wife and three sons into a 2001 Buick LeSabre. The suburban Orlando, Fla., family was destined for New York, where Robinson, then 26, had a new job waiting.
Shortly before 11 a.m. on a Monday, just after crossing the Virginia-Tennessee border, Robinson drifted off the right lane of Interstate 81 at about 70 mph. He overcorrected and swerved across the highway, turning the car sideways as it slammed into the beginning of a guardrail.
PHOTOS: Cars in guardrail crashes (http://bit.ly/19WF8eH)
Robinson remembers the guardrail piercing the car in the rear passenger seat area, where his children sat. It left his youngest, 3-year-old Ethan, with head trauma and a broken hip and his wife with a broken wrist.
"The guardrail just seemed like it was everywhere to me when I got out of the car," Luke Robinson said from his new south central New York home. "It had definitely gone into my car somehow. (I'm) not even sure of the angle."
Robinson said the ET-Plus device failed to protect him and his family. In the coming months, he expects to join several others who have sued Trinity or filed complaints over the guardrails.
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.
"He's been struggling. It's been difficult for him," said Pike's South Florida lawyer, Ted Leopold. "He had a traumatic amputation. A very active young guy has had his life altered in many ways as a result."
In court filings, Trinity blamed the driver and the Florida Department of Transportation, which "was negligent in assembling a collection of random parts as an end treatment system." Trinity has denied any responsibility for the other two crashes.
In the lawsuits, lawyers for the plaintiffs allege negligence by Trinity, claiming the company put faulty end terminals on the road. In a few cases, lawyers have gone as far as to claim Trinity purposefully misled a federal highway safety agency, neglecting to disclose changes to the end terminals and putting a product on the road that hasn't been federally approved.
"We think there is a very large cover-up that has been perpetrated," Leopold said. "Sometimes, companies such as (Trinity) feel that they can do whatever they want to do. And we believe that's what's gone on here."
Leopold said he believes the change reduced the amount of metal needed to construct the end terminals, and "at the end of the day, that's a large profit margin."
The debated test
Federal safety engineers have 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 ET-Plus devices with a 4-inch feeder channel removed from the road. Harman said end terminals 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.
Much of the back-and-forth dates back to
safety testing of the end terminal in May 2005, conducted by the Texas A&M Transportation Institute. Those tests showed no safety issues with the ET-Plus and were certified by the Federal Highway Administration.
But designs provided to federal engineers at the time showed the use of a 5-inch feeder channel. In the meantime, Trinity had been marketing and selling ET-Plus devices with a 4-inch feeder channel.
In a deposition related to one of Harman's lawsuits, federal highway engineer Nicholas Artimovich, who met with Harman about the ET-Plus in early 2012, said Trinity submitted design changes for the device in 2005 but didn't include the switch of feeder channel width.
Artimovich said Harman presented him with information about crashes alleged to involve ET-Plus terminals in 2012, including photographs of vehicles involved.
In a draft letter — which was never sent to Trinity — federal safety officials wrote, "Even though it appears that the ET-Plus terminal can still meet crash testing requirements, anecdotal reports on the number of highway crashes with fatal injuries involving the ET-Plus terminals indicate they may not be performing as intended."
Trinity executives and the Texas A&M Transportation Institute responded with photographs and videos that they said showed a 4-inch feeder channel was used during the 2005 crash test, which revealed no safety issues. But Harman says the photographs and videos do not clearly show the size of the channel tested.
FHWA administrators ultimately agreed with Trinity and the Texas A&M Transportation Institute, ruling the ET-Plus with a 4-inch channel met federal safety standards.
In a statement last month, the FHWA it "has received no complaints from states over the past seven years during which the guardrail has been used nationwide."
And while anecdotal evidence is referenced in the draft letter, Artimovich in his deposition cautioned against drawing conclusions based on crash photographs.
"One needs to know more about the circumstances leading up to (a crash) before one can accurately assess whether or not the product performed as one would have expected it to," Artimovich said in a July 2012 deposition. He said he agreed with Trinity representatives, who noted more information, such as speed and angle of impact, was necessary to determine the circumstances of the crash.
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, or AASHTO, a nonprofit that represents the interests of all 50 state departments of transportation in Washington, D.C.
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 ET-Plus' safety.
"This issue also brings to light a larger question of crash worthiness 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 safety of all end terminals — not just the ET-Plus — starting in summer 2014. The project could take up to three years.
It's unclear how many states have the ET-Plus on the road. Installation procedures vary by state, but approval of crash tests is often left to federal engineers.
In Florida, for example, the ET-Plus has been recertified for use every two years since 2005, with Trinity writing no major design changes have been made to the device.
Contractors install the guardrail heads, which are inspected at completion and every two years after that, a Florida Department of Transportation spokesman said.
Lena Tucker, the Texas widow, admits she doesn't understand ET-Plus engineering. Yet she believes her lawyers know enough about the Trinity devices to prove they aren't working.
"What I hope is somebody is held responsible and somebody fixes all of this," Tucker said. "But I've worked in law enforcement, so I've seen it go good, and I've seen it go bad."