Tag: guardrails

FHWA Grades Guardrail on a Curve

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Last Friday the 13th was a very unlucky day for taxpayers – that was the day the Federal Highway Administration announced that we, the people, would continue to reimburse states that choose to install an energy-absorbing guardrail end terminal that has been maiming and killing us. That announcement was bundled in a package of technical papers designed to explain away the last of eight tests on the safety of the ET-Plus energy-absorbing guardrail.

On January 27, an assemblage of distinguished persons from Trinity Industries, the manufacturer of the ET-Plus, the FHWA, and the fourth estate gathered at the Southwest Research Institute test track in old San Antone to bear witness to exactly how the end-terminal has been failing in the field. The Geo Metro, with a dummy in the driver’s seat, thundered toward a guardrail end-terminal and struck it at a frontal offset. The rail began to ribbon out through the chute, until it got jammed and folded in half. The Metro rotated and was speared by the folded rail.  (Watch the video)

But what are you going to believe – a bunch of technical papers with tables, photos, charts, percentages and words like “occupant impact velocity values” or your own lyin’ eyes?

 Obviously, Trinity’s BFF prefers that you bury your head in its reports. So we did. And there, The Safety Record Blog found something even more amazing than the stark video record of a weaponized guardrail. The Safety Institute has written a long letter to FHWA Acting Administrator Gregory Nadeau outlining the technical trickery employed to pass an obvious FAIL.  

For those of you with no time to spare for a detailed takedown, here’s the Reader’s Digest version:

The mission of the FHWA was to somehow conclude that an ET-Plus energy-absorbing end terminal folding in half and spearing the vehicle really did pass the NCHRP Report 350 occupant risk criteria and that driving the door inward like the point of fang, which directly struck the dummy’s femur wouldn’t have seriously hurt anyone.

Seriously.

The NCHRP Report 350 Occupant Risk criterion states: “Detached elements, fragments, or other debris from the test article should not penetrate or show potential for penetrating the occupant compartment or present an undue hazard to other traffic, pedestrians, or personnel in a work zone. Deformations of, or intrusions into, the occupant compartment that could cause serious injuries should not be permitted.”

First order of business was finessing the English language. In English, “penetration” means: “the action or process of making a way through or into something.” In the FHWA lexicon, however, “penetration” only occurs if the process makes its way through something. In other words, a prostate examination doesn’t involve any penetration if the doctor wears latex gloves.  The photos, however, showed that the driver’s side door was pockmarked with holes on the exterior and interior, which the report called tears. In other words, the iceberg didn’t penetrate the Titantic – it just caused a little tearing.

The idea of potential penetration was not addressed.

The second order of business was to attack the serious injury issue. For this, the FHWA had to finesse the science. Since they didn’t instrument the dummy to truly measure the injury potential, they had to work it backwards, post-crash. With the aid of Dr. H. Clay Gabler, a respected scientist from Virginia Polytechnic Institute and State University, the FHWA used existing crash data sets and static intrusion measurements to show that a driver exposed to the crash conditions this test would have been unlikely to have been at risk of serious injury from the folded rail impact to the driver door.

Occupant compartment intrusion is at its greatest at the moment a vehicle strikes a narrow object. This is called dynamic intrusion. After the crash, the vehicle structure partially bounces back, so the amount of intrusion post-crash, called static intrusion, is significantly less. The video shows the door being driven inward so far that it pushed the steering wheel into the right side of the dash. This is a much bigger intrusion than the 6.75 inches the testers, the Southwest Research Institute, measured afterwards. By the way, according to the photos, the static intrusion appears to have been measured with the door open – another way to minimize the intrusion measurement. 

With its 6.75 inches in hand, the FHWA turned to the National Automotive Sampling System- Crashworthiness Data System (NASS-CDS) databases in an attempt to quantify the risk of a serious injury. Instead of sorting the data to consider injuries in similar type crashes – narrow object crashes – they diluted the population by looking broadly at a subsample of crashes with the same amount of intrusion, such as rollovers or vehicle-to-vehicle crashes. But narrow object crashes have a much higher potential for serious injury, because the crash force is concentrated at a focal point, instead of being broadly distributed.

One person who understands this very well is Dr. H. Clay Gabler. Dr. Gabler co-authored a wonderful 2013 technical paper, in which he used NASS-CDS data to specifically examine guardrail end-terminal side impact crashes. Yes, one can, if one cares to, sift NASS-CDS data for specific crash-types – including guardrail strikes. (That paper looked at crashes in which the side was the first impact, rather than the second impact, like that in the recent ET-Plus test failure.) When you look for what you are looking for, you may find something very different. For example, in Injury Risk Posed by Side Impact of Nontracking Vehicles into Guardrails, Dr. Gabler found:

Intrusion appears to be a major risk factor in guardrail-side crashes, particularly terminal crashes. Crashes directly involving the occupant compartment (SHL of passenger compartment) were far and away the most dangerous, accounting for only 3% of all nontracking guardrail-side crashes yet almost 40% of total injuries.

 And:

For terminal-side crashes, driver-side impacts had significantly greater risk of injury compared with passenger-side impacts. Side crashes involving an end terminal were substantially over represented in driver injuries. End terminal contact occurred in about 25% of all guardrail-side crashes but represented almost 70% of driver injuries.

As for where the occupant might have sustained injury, the FHWA took the opposite tack. Instead of looking broadly for potential injury to the head, torso, arm or upper leg, the analyzers only looked at possible injury to the lower leg. They went looking below the knee, even though Dr. Gabler noted that the dummy took a direct hit to the upper leg. In fact, in burst of candor, Dr. Gabler conceded in his analysis:

My conclusion is that the risk of serious injury cannot be discounted simply because the impact is to the legs.  An AIS 3 femur fracture could occur as a result of an impact to the upper legs and would be considered a serious injury.

That’s the formula – look for the wrong things in the wrong places, the wrong way – and Voila! You didn’t see what you saw. PASS!!!

The federal agency had long treated l’affaire Trinity as a nuisance. In 2012, when competitor Josh Harman made allegations of an undisclosed design change to the ET-Plus that caused it to fail in the field injuring and killing motorists, the FHWA took pains to soothe nervous state highway engineers. When Trinity finally admitted to the agency that it had in fact altered the design in 2005, but just forgot to mention it, the agency said: “That’s okay. Just give us your seven-year-old tests and we’ll call it even.” When the American Association of State Highway and Transportation Officials asked the FHWA to study ET-Plus field failures, the agency sternly reminded the group that it hadn’t made this a priority, so that would just have to wait.  When journalists asked questions, the FHWA passed off the kerfuffle as a dispute between business competitors.

The agency has had to exert itself a bit more forcefully in the wake of an October federal jury verdict which found that Trinity defrauded the government when it decided not to tell the FHWA about that design change, as required by federal regulations. But neither a finding of fraud, nor the revelations that Trinity failed to disclose the design change deliberately, as memorialized in emails in which company principals talk about it, nor a crash test in which the energy-absorbing end terminal did exactly what it is doing in the field, can deter the agency from ensuring no harm comes to itself or Trinity Industries.

Another branch of the U.S. Department of Transportation tried this. It didn’t end well.

The National Highway Traffic Safety Administration aggressively shilled for Toyota, hired experts and contorted science to show that Toyota Unintended Acceleration could only be caused by a confused old lady, a jammed floor mat or a sticky accelerator pedal. Toyota’s still profitable, but it became notorious as the first automaker to plead guilty to a criminal fraud charge and the plaintiff’s lawyers – not NHTSA — finally ripped the cover off the technical problem. Toyota is now settling death and injury cases. NHTSA’s reputation has been shattered and agency principals have taken regular beatings on the Hill and elsewhere, forcing them to finally make automakers do things. 

We are watching the FHWA hurtling to the same destination.  

 

FHWA Breaks Out Rulers, Still No Idea Why Guardrails Fail

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One of the most important lessons for federal agencies caught asleep at the wheel in a safety crisis is: do everything you can to validate your earlier, poor decisions that led to the crisis. Spare no expense at proving yourself right, while appearing to take a stern stance against industry. By no means should you ever focus on the field failures.

Thus we get yesterday’s Federal Highway Administration report on the controversial ET-Plus energy-absorbing guardrail end terminal, purporting to show that its most recent tests of the highway device are valid, and that there is only one version of the ET-Plus. The report, Task Force on ET-Plus 4” Dimensions, should be viewed as a precursor to the FHWA declaring there is nothing wrong with the ET-Plus, and that it was right all along to ignore the manufacturer’s failure to disclose important dimensional changes to the device, in violation of federal regulations.  

It elides the central question: What is causing the ET-Plus to fail in the field, leading to injury and deaths? When a vehicle strikes a guardrail, the rail is supposed to be extruded through this type of energy absorbing end terminal into a flat metal ribbon that curls away from the vehicle. Some versions of the ET-Plus fold into a spear that penetrates the vehicle and causes severe harm to vehicle occupants.

For those who have not been following the Trinity saga: In 2012, Joshua Harman, the owner of a competitor company, alleged that Trinity Industries, a Dallas-based manufacturer of roadside safety equipment, had altered the critical dimensions of its ET-Plus energy-absorbing end terminal. Trinity officials made the change in 2005, as revealed in internal company memos, to save money on labor and materials, and deliberately did not inform the FHWA, which certifies that highway safety equipment has been properly tested and has not been altered in design or manufacture. Harman sued Trinity on behalf of the federal government under the qui tam provisions of the False Claims Act. In October, a federal jury found Trinity had defrauded the government and awarded trebled damages of $175 million. 

The conclusion of the trial forced the FHWA – which previously responded to the allegations as insignificant fallout from a business dispute – to take action. It ordered Trinity to re-run the high-speed crash tests, and a couple of months ago the Southwest Research Institute (SwRI) conducted eight such tests. All went well until the last run, where the guardrail jammed in the feeder chute and folded in half, almost penetrating the GEO Prism. This is what the FHWA has to make go away. Some had already criticized the tests because they did not include a low-angled impact condition that mimicked the field failures. They have also alleged that Trinity – in recognition of the problem – made further undisclosed changes to the ET-Plus around 2012 to improve its performance. 

Yesterday’s Task Force on ET-Plus 4” Dimensions is a survey of the dimensions of 1,048 guardrails measured in five states. The 15-page report answered four questions:

  • Are there multiple versions of the ET-Plus 4” guardrail end terminals on the roadways? 
  • Were the crash-tested devices representative of the ET-Plus devices installed on the roadways? 
  • Do dimensional variations affect the performance of the ET-Plus device? 
  • Did the crash tests apply worst-case test conditions? 

The FHWA answers are: yes, they are representative; yes, the right size guardrail systems were tested; no, we don’t know if changing the dimensions affects the field performance; and we don’t have to test the worst-case scenario, so there.

Here are the reality-based answers: 

The sample, described as “for all practical purposes, a random sample,” is not a random sample. In statistics, your sample is random or it is not. There is no “for all practical purposes” category of randomness. Also, the survey could not control for date of manufacture – since only one state, South Carolina, kept records. And apparently those records weren’t all that good, because the measurers were out looking for “shiny” guardrails as a date-of-manufacture measure.

Surely, the guardrails tested by SwRI were representative of some installed in the field, but that doesn’t exactly get to the first and only important question: Do the dimensions affect performance?

And for that answer, we’ll quote the task force: “The task force could not determine, based on the data or material it reviewed, whether or not dimensional variances beyond the design tolerances, either individually or in combination, would affect the performance of the ET-Plus device.” 

Really? Then why the frig were you spending so much time on our nation’s highways measuring guardrails with rulers?

Finally, what are manufacturers required to test for? According to an authority no less than the FHWA itself:  

“The developer should also carefully choose which version of the device to be tested. If a number of different sizes are proposed for use, then the “worst case” conditions, if predictable, should be tested. It may be that “worst case” conditions are not obvious and more than one version of a device will need to be tested. The FHWA Office of Engineering is will to review a proposed test program to assist in determining an adequate number of tests to fully qualify a device and its variants.”

The FHWA has been issuing and re-issuing this guidance since 1997. It would be nice if agency officials followed their own advice.

We have dead bodies and severed limbs from close encounters with ET-Plus energy-absorbing end terminals. No amount of measuring how many angels can dance in the exit gap is going get the agency or Trinity around that rather graphic evidence.

U.S. Senator Richard Blumenthal (D-Conn.), who has done his best to keep the heat on the agency, issued a brief statement that nicely sums it up. So we’ll give him the last word:

“As demonstrated again today, FHWA’s guardrail testing has been consistently dumbfounding and deficient. FHWA repeatedly relies on guesswork, unsupported assumptions, and arbitrary choices. The agency neglected key measurements, rejected critical manufacturer information and completely ignored devices used in New England and the Northeast. FHWA’s lack of transparency and persistently-flawed methodology leaves the fundamental question: Are the 200,000 ET-Plus devices on our roads safe? After years of delay from FHWA, months of insufficient and outdated testing, failure to analyze real-world data, and lack of transparency, we need answers from DOT and we need them now.”

Trinity ET-Plus Test Replicates Field Failures

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​Look at the pictures of this week’s s field test of the controversial ET-Plus energy absorbing end terminal below: Do you see what we see? The curled steel ribbon shows that guardrail began to extrude through the feeder end, as designed, but apparently got jammed up in the chute. The rail folded back into a spear and almost penetrated the Geo Metro’s door:

Courtesy of KSAT.

Trinity President Greg Mitchell saw it. According to the pool reporter who bore witness for her fourth-estate buds: 

“Something seemed very dramatic at impact- different than the same 'off-set small car' test at the 27 ¾ inch test in early January. The damage and impact was entire front end- even looking centered for worst damage. I cannot confirm that nothing penetrated the cab.  The Trinity president and PR rep immediately went to one another with no smiles and fast conversation.”

Indeed. This is more or less how some versions of the ET-Plus end terminal – now under fire after a federal jury concluded that Dallas, Texas-based Trinity Industries had defrauded the government by failing to disclose a significant design change that saved the company $50,000 – is alleged to have performed in the field, with catastrophic consequences to actual humans.

It was the eighth and final test at the Southwest Research Institute’s facility in San Antonio, Texas. The skies were blue and sunny, giving all the observers – including the FHWA, representatives of the American Association of State Highway and Transportation Officials (AASHTO) – and Trinity a clear view of the small-car test using a 31-inch guardrail, with an impact off-set to the passenger side.  

The pool reporter, from her position, about 200 yards from the impact, said:

“The black & white car Geo Metro traveled down the track at approximately 62 mph and hit the ET-Plus guardrail head on but off-set to passenger side of the car.  The car hit the head and crashed through approx. 4 posts while spinning half a turn and into traffic.  Substantial damage occurred to front of this car, with not a lot of 'extrusion/ribboning' of the guardrail.”  

According to the FHWA response to Trinity’s test plan, Trinity was concerned about who would be allowed to watch the tests: “The test plan only references FHWA observers. FHWA intends to bring independent experts, members of AASHTO, and State DOT representatives along with FHWA personnel. FHW A will provide Trinity, in advance, with a list of FHWA personnel and those we wish to invite to attend the crash tests. Trinity agrees, is primarily concerned with impartiality, and will inform FHWA if they have concerns with any of the individuals on FHWA's list.” (Trinity has no particular interest in the outcome, so it makes sense to give the company the final say.) 

Nonetheless, the eleven individuals present on Tuesday were not the only eyes on this testing. After Trinity lost the federal whistleblower lawsuit that competitor Joshua Harman brought on behalf of the government, the FHWA was forced to act. In 2012, the agency allowed Trinity to submit seven-year-old test results which purported to show that the ET-Plus energy-absorbing end terminals manufactured after 2005 performed adequately in crash tests. In the wake of the October finding of fraud and a trebled $175 million damages award, the FHWA ordered a fresh round of tests, but not the off-set tests that mirror how the guardrail was faring in the field. 

Documents obtained from the FHWA by Safety Research & Strategies via a FOIA lawsuit show that in the run-up to the tests, FHWA officials were crafting and re-drafting – with guidance from Chief Counsel Thomas Echikson and many hands within the Office of Safety Technologies – responses to pointed questions from the press and U.S. Senator Richard Blumenthal (D-Conn.). 

Although the 267 pages are full of R & R (repetition and redactions), amid the effort to churn out a FAQ, a press release related to the testing plan, and a letter accepting Trinity’s  testing plan, are internal communications regarding a meeting with Blumenthal’s staff. The senator has publicly expressed reservations about the test protocol, which experts say is out of date, and the lack of a crash test that mimics field performance.

According to documents released by the agency, ABC producer Cindy Galli also posed a series of questions to the FHWA – among them, about Trinity’s financial ties to the SWRI, and whether the results of these tests would conclude the matter for the federal government. The agency responded:

"We're reviewing data to determine whether the ET-Plus and other comparable end treatments have vulnerabilities under conditions not covered by NCH RP 350 testing and are considering whether additional analyses, including evaluations of the end treatments' performance on roads, are warranted.•

Surely, Trinity President Greg Mitchell would agree. In a November 6 letter, he presented his bonafides to the FHWA:

“The safety of the American driving public is very important to Trinity, and we take very seriously the safety of the products that we manufacture for installation on the nation's roadways. We believe that this process will confirm going forward that our products meet the NCHRP Report 350 standards.” 

As the Safety Record Blog knows from reading so many letters of this variety, everybody and their Grandmas takes safety seriously. How one’s somber mien translates into demonstrable action – ah, here is where there is much disagreement. Scientific studies show that a sizeable percentage of people who say that they take safety seriously believe that this utterance alone suffices. 

Now that there is videotaped evidence that the process did not provide Trinity or the FHWA with the unequivocal confirmation that the ET-Plus is a NCHRP standard-bearer, what are either going to do about it?

FHWA Pulls a NHTSA on Guardrails

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Wednesday, the Federal Highway Administration announced some big, big news: Trinity Industries will test its ET-Plus guardrails in a way that virtually guarantees a passing grade, thereby ensuring that the agency’s past decisions are validated.

 

The Safety Record confesses those were not the agency’s exact words. The FHWA said:

Trinity would not be required to test the ET-Plus at a low-impact angle, which happens to be the mode in which the guardrail terminal system is failing in the field. Further, the FHWA would allow Trinity to select the end terminals and the testing would be done by the Southwest Research Institute.

Origins of the New Tests

FHWA demanded that Trinity run new tests on the ET-Plus guard rail end terminals after a federal jury in Marshall, Texas found that Trinity, a global manufacturer of highway safety equipment, defrauded the federal government in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the Department of Transportation and the Virginia guardrail competitor who brought the suit on behalf of the United States government $525 million. At trial, the jury viewed five test videos showing the re-designed ET-Plus end terminal catastrophically failing in low-impact angle tests.

Joshua Harman, the president of SPIG, a competitor, sued Trinity under qui tam provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. Harman had charged that Trinity modified the design of its original guardrail end terminal design, the ET-Plus, causing it to fail in crashes and injure and kill occupants in striking vehicles.  The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the width of the guide channel, or “feeder chute,” through which the rail is extruded. Harman alleged that the rail jams in the narrower channel, causing it to fold in half, forming a spear that can penetrate the occupant compartment. In his suit, Harman alleged that Trinity changed the design without notifying the FHWA, as required, until seven years later, when he brought his concerns to the agency.

In response, the FHWA required Trinity to subject the ET-Plus end terminal with the 4-inch guide channel to four different tests set forth by the National Cooperative Highway Research Program (NCHRP), using three different guardrail heights. This immediately rang alarm bells for Harman’s attorneys and Dean Sicking, who designed the ET-Plus’ end terminal’s successful predecessor ET-2000 while at the Texas Transportation Institute. (He is now at the University of Alabama Birmingham School of Engineering) Both fired off letters to the FHWA urging it to test the ET-Plus in a configuration that mimics the way it has failed in the field.

Saving Face for the FHWA

Wednesday’s announcement signifies that the FHWA is incredibly determined not to rock its own boat. The TTI has already proven that the 4-inch ET-Plus end terminal cannot pass a 4-5 degree, low-impact angle test, but the FHWA is not requiring this test.

Further, allowing Trinity to select the terminals for testing means that they can simply avoid terminals with the critical dimensions that have failed in service – such as those that failed in crashes that the Missouri Department of Transportation provided to the agency. Requiring a 15-degree centered-to-nose impact is a high-angle impact test is not representative of the run off the road crashes that are most common and the way a low-impact angle test does.  The Trinity ET-Plus is likely to pass the high-angle test along with the head-on impact. 

The FHWA specifically forbade the TTI from conducting these new tests. But, the SRI is a good substitute. The SRI and Trinity have longstanding financial ties via seven patents going back to the late 1990s. SRI engineer and inventor Maurice Bronstad developed several improvements to energy-absorbing guardrail systems, including crash cushions, impact assemblies and end terminals, which were assigned to the TRN Business Trust, an arm of Trinity Industries. So Trinity has been paying the SRI to license these devices and paying patent royalties to Bronstad for years. Bronstad, now retired, and was a favored Trinity expert in civil litigation.

Pretend Safety and Science

We’ve seen this movie before. It doesn’t end well for motorists.

The National Highway Traffic Safety Administration has an epic formula on how to look like you are scaling Safety Mountain, when you are really just edging past the cliff of your reputation’s abyss. Take one part respected outside entity, one part active participation by investigation’s target and one part private entity with financial ties to investigation’s target. Mix together with inadequate test protocols and season with science-y numbers and language, bake in white-hot media glare and you get statements like this:

“Today, we can say clearly and affirmatively that NHTSA, America's traffic safety organization was right all along,” so pronounced our esteemed former Secretary of Transportation Ray LaHood on February 8, 2011“Toyota's problems were mechanical, not electrical. And that comes after one of the most exhaustive, thorough, and intensive research efforts ever taken… So let's be clear. The jury is back. The verdict is in. There is no electronic-based cause for unintended, high speed acceleration in Toyotas. Period.”

In August 2009, after California Highway Patrolman Mark Saylor crashed his loaner Lexus at high-speed on a Santee, California Highway, NHTSA was under heavy pressure to respond to the growing Toyota Unintended Acceleration crisis. The agency already had a series of brief, failed investigations into the defect. Toyota successfully argued that there was no way their vehicles could accelerate without a direct command from the driver – and even with a wide-open throttle, the vehicle remained controllable with braking. But the public release of the disturbing 911 tape, in which the panicked occupants described Saylor’s inability to stop the vehicle, meant that the same-old, same-old open investigation, close eyes, accept the manufacturer’s BS, deny the defect was not going to work this time.

In the wake of painful Congressional hearings and daily news stories, NHTSA had to look like it had gotten Serious. It hired the National Aeronautics and Space Administration’s Engineering Safety Center (NESC) to plumb the technical depths and engaged the National Academies of Science to examine the broader issues surround unintended acceleration and the agency’s response to it. The NESC and NHTSA teams came up with two reports that did not examine the problem under a clear scientific process. For example, despite the high frequency of low-speed surges and crashes, the engineers did not study UA in that scenario. The teams purported to study high-speed UAs, but never examined a vehicle that had experienced such an event. They did not examine the entirety of Toyota’s source code, just pieces of it. Nor did the teams engage independent engineers with expertise in vehicle engine management design, validation and testing to assist them. They, did however, allow Toyota and Exponent to guide the research.

Later, it turned out, NHTSA was “affirmatively and clearly” wrong all along. Embedded software expert Michael Barr and his team hacked their way through the jungle of Toyota’s spaghetti code and found a hot mess. Barr’s testimony in Bookout v. Toyota led the jury to determine that the automaker acted with “reckless disregard,” and delivered a $3 million verdict to the plaintiffs — but before the jury could determine punitive damages.

In September 2007, Jean Bookout’s 2005 Camry experienced an unintended acceleration as she exited an Oklahoma highway. Bookout could not stop her vehicle, which crashed head on into an embankment at the bottom of the exit ramp. Passenger Barbara Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries.

Barr spent nearly 20 months reviewing Toyota’s source code at one of five cubicles in a hotel-sized room, staffed by security guards. Based on his 800-page report, Barr testified that the system was plagued with “a large number of functions that are overly complex,” and was untestable. He concluded that the system’s failsafes are inadequate.

“On the whole, the safety architecture is a house of cards,” he said.

Barr’s testimony has forced the automaker to hastily settle all subsequent catastrophic damages claims. But, Toyota’s UA problems continue. Drivers are still complaining. NHTSA is currently evaluating a petition to open an investigation into low-speed surges in Corollas.

Blumenthal on the Case

Sen. Richard Blumenthal (D-Conn.) has been hammering the FHWA with letters and press releases questioning the agency’s approach to this new round of testing. He called on the FHWA to improve the testing protocol outlined yesterday to ensure the safety of potentially dangerous guardrails.

“I am very concerned that the testing protocol you’ve prescribed is woefully inadequate and far too deferential to Trinity.  It’s imperative that the testing be open, thorough and credible,” Blumenthal wrote in a November 12 letter.

The Senator also chastised the agency for foregoing the more up-to-date AASHTO Manual for Assessing Safety Hardware (MASH) protocols in favor of those of the NCHRP Report 350.

It is unacceptable that FHWA is relying on the outdated NCHRP to approve this device. The ET-Plus has never convincingly passed safety tests, so FHWA should use the latest testing standard as FHWA is essentially approving this device for the first time today, in 2014 – not 2005, when NCHRP was effective. The MASH testing framework will ensure the device is safe enough for today's roads, as it relies on testing with a sufficiently heavy vehicle and a sufficient variety of angular impacts, Moreover, MASH also has other important methodologies. MASH states that “if a significant window of vulnerability” is identified for any given design, the test matrices should be supplemented to explore the additional impact conditions." For the ET-Plus, this “window of vulnerability” would include the conditions under which the device is known to fail, i.e., at an impact angle of four degrees or greater, and MASH would ensure the device is properly tested at those angles, representative of real-world crashes, Finally, MASH requires that "[e]ach device must be tested at the impact angle that will maximize the risk of test failure," further ensuring adequate testing.

In a reply to Blumenthal, Acting Administrator Gregory Nadeau cast the whole episode as a foofaraw ginned up by Josh Harman. Nobody complained, Nadeau maintained, until Harman did. This argument is disingenuous on multiple fronts.

First, states did not complain because, in general, they don’t collect guardrail crash data. While NCHRP advises states to evaluate the field performance of highway safety hardware, it’s not a requirement and most state DOTs don’t have the budget or expertise to conduct these analyses. The FHWA, which would have the resources, doesn’t either. It’s content to rely on one set of crash test data and call it done. Nadeau’s pitiful statistical defense to Blumenthal, the FHWA’s exhaustive look at 14 crashes from the National Motor Vehicle Crash Causation Study, is not a substitute for actual fact-finding or a sound scientific study. (And where’s the industry accountability, Mr. Nadeau? Trinity Industries defrauded you and your response is to give them an easy do-over?)

Second, some people have complained – those would be the victims with the artificial legs and the families of vehicle occupants who were killed by their encounter with an ET-Plus end terminal.

Nonetheless, Nadeau wrote, the agency would give the matter its full attention:

“Please be assured that we are proceeding in a data-driven manner—our goal is to separate fact from fiction by using the best science and engineering to reach a conclusion about the performance of the ET-Plus and to take informed steps based on the data.”

Mr. Nadeau, we are not assured.

Industry Experts Urge FHWA to Test Trinity Guardrails Properly

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Last Monday, a federal jury in Marshall, Texas forced the Federal Highway Administration to do what state directors of transportation could not – launch an investigation into the crashworthiness of the ET-Plus guardrail end terminal. The agency, which, two years ago accepted Trinity Industries’ old test reports and spent most of its efforts deflecting the concerns of state highway officials and the questions from journalists, ordered the Texas-based manufacturer of highway safety equipment to submit to a new testing regime.

But, the lead designer of the ET-Plus end terminal’s predecessor the ET-2000 and the attorneys for Joshua Harman, who sued Trinity on behalf of the U.S. government, have written to the FHWA urging the agency ensure that the end terminal is tested in a configuration that mimics the way it has failed in the field.

Harman, the president of SPIG, sued Trinity under qui tam provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. Harman had charged that Trinity modified the design of its original guardrail end terminal design, the ET-Plus, causing it to fail in crashes and injure and kill occupants in striking vehicles.  The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the width of the guide channel, or “feeder chute,” through which the rail is extruded. Harman alleged that the rail jams in the narrower channel, causing it to fold in half, forming a spear that can penetrate the occupant compartment. In his suit, Harman alleged that Trinity changed the design without notifying the FHWA, as required, until seven years later, when he brought his concerns to the agency.

Among the damning evidence in the trial were five test videos showing the re-designed ET-Plus end terminal catastrophically failing and a November 9, 2004 email authored by a retired Trinity vice-president, Steven Brown.  He proposed changing the guide channel from five inches to four to make the terminal eight pounds lighter and save $2 a unit, without telling the FHWA, as it is required to do: “If [the Texas Transportation Institute] agrees, I'm feeling that we could make the change with no announcement.” TTI, an arm of Texas A & M University, invented the ET-2000 and the ET-Plus, and was responsible for conducting the testing that would be submitted to the federal government in support of its application for approval. TTI agreed to the change without telling the government, and drafted a test report that failed to reference the change to the guide channel and other changes to the original design, first approved in 1999. Trinity President Gregg Mitchell testified that Trinity had no meetings to discuss the dimension changes and performance issues with the ET-Plus, and did no evaluations of the product.

On the eve of the qui tam trial, the FHWA directed each of its field administrators to immediately gather ET-Plus crash data from state Departments of Transportation. After the jury found Trinity guilty of fraud and awarded the U.S. government trebled damages of $175 million, the agency directed Trinity to submit a plan for additional crash testing by Friday, or risk having its acceptance letter revoked. The agency specified that the testing be performed by a nationally accredited testing facility, excluding the TTI. In addition, whichever testing facility is chosen could not have ever tested the ET-Plus previously and was required to disclose any financial interests it has in roadside safety hardware. Trinity announced that it has stopped all shipments of ET-Plus end-terminals until the testing is completed.

The FHWA is requiring Trinity to subject the ET-Plus end terminal with the 4-inch guide channel to four different tests set forth by the National Cooperative Highway Research Program (NCHRP), using three different guardrail heights.

It is the omissions in the test protocol that have alarmed Dr. Dean Sicking, who designed the ET-2000 while at the Texas Transportation Institute, now at the University of Alabama at Birmingham School of Engineering. He deemed “the most egregious behavior by Trinity Industries was not their failure to adequately test the ET-Plus. Instead, the primary deception perpetrated by Trinity and TTI was hiding the failed crash test results of low angle, head-on, and offset-impacts of the very ET-Plus that was installed across the nation.”

At trial, one Trinity executive testified that the videos only showed an experimental prototype that was eventually abandoned before production. But, Sicking, an author of the test guidance document, NCHRP Report 350, noted that Trinity has an obligation under the NCHRP guidelines to test the ET-Plus end terminals “under any critical impact conditions that the developer identified any time during the life.” In other words, the field failures, plus the crash videos showing the end-terminal malfunctions, demand that Trinity must specifically re-test in that configuration in which it failed.

Sicking pointed out those tests were far from irrelevant, as Trinity characterized them. They showed a critical deficiency in the performance of the guardrail head:

I suspect that neither Trinity nor Texas Transportation Institute has – to this day – informed FHWA that five full scale crash tests were unsuccessfully conducted on the ET-Plus head. These tests were ostensibly conducted in an attempt to gain approval of the ET-Plus use in a flared configuration with a 4 ft. offset over the last 50 ft. Because there was no deformation of the guardrail anywhere outside of the flared region, these tests were equivalent to testing the straight ET-Plus in an end-on, offset configuration at an angle of approximately 4.5 degrees. These are the conditions that appear to be causing the catastrophic failures that have been widely reported in the press. The unacceptable performance of the ET-Plus for these impact conditions was known to both Trinity and TIl prior to the original 2005 letter requesting approval of the ET-Plus for use with MGS guardrail. Two of the five failed tests were conducted prior to the submission of that letter. If FHWA wants to assure the motoring public that the ET-Plus will perform adequately when placed on the highway, it is important that it be tested under those conditions.

 

Attorney George Carpinello of Boies, Schiller & Flexner LLP, who represented Harman during the qui tam trial raised the same concerns. In his letter to the FHWA, Carpinello also pointed out that crash testing alone “is not enough to determine the breadth of Trinity's false representations, or more importantly, the danger posed by the ET-Plus to the motoring public. Through discovery and expert analysis in the Harman action we have learned that Trinity has placed on the highways ET-Plus end terminals with multiple and varied internal dimensions, all of which potentially impact the performance of the ET-Plus in real-world crashes. There is no question that these variations substantially impact performance.” Carpinello argued that his expert had documented differences in installations nationwide, limiting the value of crash tests. 

He also took the agency to task for giving Trinity the option of submitting its documentation confidentially: “as I am sure you are aware, both the NCHRP 350 and the [Manual for Assessing Safety Hardware] protocols make it clear that crash testing alone is insufficient to determine whether a safety device works properly in service. Specifically, NCHRP 350 at § 2.1 makes it very clear that "the evaluation process should not stop with successful completion of tests recommended herein. In-service evaluation of the feature is perhaps more important than crash test evaluation and should be pursued as recommended in Chapter 7.”

So far, at least 13 states have dropped the ET-Plus from their list of approved highway safety equipment or suspended further use until the FHWA completes its investigation: Nevada, Vermont, Colorado, New Hampshire, Missouri, Massachusetts, Hawaii, Virginia, Oregon, Connecticut, Louisiana, Mississippi and Arizona.

William Boynton, a spokesman for the New Hampshire DOT, noted that “at this time, the NHDOT has no direct evidence that the terminal is ‘flawed.’”  

On June 8, an Ohio couple was southbound on I-93 in Ashland New Hampshire, when the sedan left the roadway and struck an ET-Plus guardrail, which penetrated the Subaru Impreza at the passenger side wheel well, slicing the driver and her companion in the legs and knees. Both sustained serious injuries, requiring long hospitalizations and have undergone multiple surgeries to repair the damage.

Boynton said the NHDOT was aware of that crash.

Trinity Defenses Collapsing Faster Than an ET-Plus End Terminal

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A jury in Marshall County, Texas found that Trinity Industries, a global manufacturer of highway safety equipment, defrauded the federal government in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the Federal Highway Administration and the Virginia guardrail competitor who brought the suit on behalf of the United States government $175 million.

The FHWA did not participate in the lawsuit, nor was it present in the courtroom.

Joshua Harman, the president of SPIG, sued Trinity under provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. Harman claims that sometime between 2002 and 2005, Trinity modified the design of its original guardrail end terminal design, the ET-Plus, causing it to fail in crashes and injure and kill occupants in striking vehicles.  The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the width of the guide channel, or “feeder chute,” through which the rail is extruded. With this change, critics charge, the end terminal no longer performs like those of the earlier design. Instead of bending away, the rail jams in the chute, causing it to fold in half, forming a spear that can penetrate the striking vehicle.  Harman has claimed that Trinity changed the design without notifying the FHWA, as required, until seven years later, when a patent dispute between the two companies brought this modification to light.

According to SRS staff who attended the trial, there were two keys to the plaintiffs’ success – a November 9, 2004 email and the testimony of Trinity President Gregg Mitchell.

The decade-old email, authored by a retired Trinity vice-president, Steven Brown, proposed changing the guide channel from five inches to four to make the terminal eight pounds lighter and save $2 a unit, without telling the FHWA, as it is required to do: “If [the Texas Transportation Institute] agrees, I’m feeling that we could make the change with no announcement.” TTI, an arm of Texas A & M University, invented the ET-2000 and the ET-Plus, and was responsible for conducting the testing that would be submitted to the federal government in support of its application for approval. TTI agreed to the change without telling the government, and drafted a test report that failed to reference the change to the guide channel and other changes to the original design, first approved in 1999.

Trinity President Gregg Mitchell took the stand and made the company look like incredibly sloppy engineers who deliberately concealed the changes to the government. Mitchell testified that Trinity had no meetings to discuss the dimension changes and performance issues with the ET-Plus. In fact, the company did no evaluations of the product.

A typical exchange between Mitchell and one of Harman’s lawyers, George Carpinello, went like this:

Carpinello: What studies did you consult, sir, or did TTI consult to your knowledge to determine that a change from 5- to 4-inch would improve the alignment of the extruder head, and, therefore, enhance the extrusion — extrusion during a head-on impact?

Mitchell:  I’m not aware of any studies.

Carpinello:  What field studies were done, sir?

Mitchell:  I’m not aware of any field studies.

Carpinello: What computer analysis was done, sir?

Mitchell:  I’m not aware of any computer analysis.

Carpinello: Was anyone consulted other than TTI and Trinity?

Mitchelll: Not that I’m aware of.

Carpinello: Did you go to any contractors and ask them, sir, whether they saw anything in the field that indicated that Trinity should change from a 5- to 4-inch to enhance the rail

extrusion during head-on impacts, sir?

Mitchell: I’m not aware of field studies that were done. No.

Carpinello: Did you consult any public officials, any DOT officials, state police, or outside experts to ask if there was a problem with regard to the extrusion during head-on impacts so that we should change it from 5- to 4-inch?

Mitchell: I’m not aware of any.

Click here to read the full trial transcripts.

The plaintiffs’ bar will be feasting on these admissions for some time.

Trinity executives also never re-ran the most critical test used for certification with the FHWA – a head-on collision with a pick-up truck at highway speed. Instead, Trinity ran a test with a small car to see if a different design change – raising the height of the posts to 31-inches would cause a small vehicle to underride the rail. It did not submit to the FHWA videos of tests with the newly designed four-inch end terminal that showed it failing spectacularly, because, the company argued, it was used in a different type of installation. Trinity’s Vice President of International Sales Brian Smith testified that those crash test videos represented a research project that was ultimately not put into production, and never submitted to the FHWA. Also several Trinity executives and TTI engineers testified that the real reason for the change to the channel width was to mitigate a wobble in the guardrail beam inside the guide channel. Neither could produce any evidence that this wobble existed; TTI engineer Roger Bligh testified that the wobble was something he had observed, but had not tested for.

Dean Sicking, a University of Alabama engineering professor who designed the ET-2000, testified that Mitchell threatened to harm him professionally if he testified in the qui tam trial.  Sicking said:

[Mitchell] went on to say that we plan to treat all the witnesses for — for Mr. Harman the same way.  And — and I looked at him and I was a little surprised by that and then he said, I hate to see that happen to you.

In 2012, Trinity Industries was successful in fending off federal scrutiny of the safety of its ET-Plus guardrail end terminal, after Harman brought his claims to the attention of the FHWA and several state Departments of Transportation. But Trinity’s loss yesterday follows another state giving the ET-Plus the boot. The Virginia DOT has removed the ET-Plus guardrails from the qualified products list and given Trinity until Friday to provide the state agency a laundry list of items:

  • Conduct testing of the modified (4″ channel) ET-Plus on 27.75 inch guardrail at a nationally accredited testing facility using NCHRP 350 criteria.
  • Allow VDOT and consultants to be present at the testing to verify proper protocol.
  • Provide test analysis and reports for new testing, including detailed product schematics for the system and the head, depicting all dimensions.
  • Immediately advise VDOT of any additional modifications made to the ET-Plus after 2005 and seek approval from VDOT for any such modifications

Meanwhile, Congress may be leaning in for a better look at the Federal Highway Administration’s acceptance of Trinity’s seven-years-too-late admission of changing a critical dimension, and Trinity’s actions in this debacle. 

States Start Dropping the ET-Plus Guardrail

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In the wake of a study on the safety of energy-absorbing guardrail end treatments sponsored by The Safety Institute, Missouri and Massachusetts DOT officials have announced that they will no longer consider the ET-Plus, manufactured by Trinity Industries, as approved highway safety equipment and are dropping the design from current and future construction projects.

Last Thursday, The Safety Institute released In-Service Evaluation of FHWA-Accepted Guardrail Terminals, conducted by the University of Alabama at Birmingham (UAB) School of Engineering, which examined eight years of severe injury and death data for crashes that occurred in Missouri and Ohio involving five different guardrail end terminal designs.  While the data are limited, the study found that the ET-Plus design, manufactured by Trinity Industries, Inc., was 1.36 times more likely to produce a severe injury and 2.86 times more likely to produce a fatality than the ET-2000 design. 

The TSI study, analyzed single-vehicle ran-off-road crashes that occurred in Ohio, between 2005 and 2013, and Missouri, between 2005 and 2014, in which contact with the guardrail end was identified as the Most Harmful Event. The Safety Institute initiated the study to gather objective performance data for the ET-Plus, which has been at the center of a controversy for two years.

“Our internal observations, as well as our review of available information, indicates to us that ET-Plus guardrail end treatment is not performing as intended and could pose the risk of malfunctioning,” said MoDOT spokesman Holly Dentner.  “Therefore, we are taking proactive steps to correct the situation. We are immediately stopping the further use of this product on Missouri’s highway system by taking it off of our approved products list, removing it from projects currently under construction and prohibiting its use on any future projects.”

In a statement, Massachusetts DOT said:  “In light of a recent report raising questions about the performance of a specific guardrail end terminal, MassDOT has taken initial steps to halt the use of that end terminal while the agency conducts additional research…if necessary, [it] will evaluate possible measures to repair or replace these end terminals already in use.”

In January, the Nevada Department of Transportation became the first state to reject Trinity’s ET-Plus. The Nevada DOT informed Trinity that its ET-Plus terminal would no longer be considered approved equipment, after it was revealed that Trinity had made a modification to the original design in 2005, without disclosing it to the Federal Highway Administration, as required.

Other states are investigating the possibility of following suit.

State transportation officials began raising questions about the safety of ET-Plus energy-absorbing end terminals, after Joshua Harman, the president of a competitor company, alleged that in 2005, the manufacturer made a design change to the ET-Plus, allegedly to save material and manufacturing costs, that affected its performance in a crash.

Guardrail impact attenuating end terminals are designed to lessen the severity of a crash, by allowing the striking vehicle to ride down the crash forces safely, without deflecting the vehicle back onto the roadway. Today, the W-Beam guardrail with an impact attenuating end is the most commonly used energy absorption barrier system.  In this design, the end terminal rail is deformed away from the striking vehicle, either by flattening, cutting or kinking the rail. In the early 1990s, Trinity launched the ET-2000, an Energy Absorbing Terminal, which absorbs the kinetic energy of the striking vehicle, while bending the post away from it, and extruding the beam into a flattened ribbon. 

In 1999, Trinity introduced the ET-Plus. Critics allege that the newer versions bear a dimensional change to the feeder chute, through which the rail is extruded. With this change the end terminal no longer performs like those of the earlier design. Instead of bending away, the rail jams in the chute, causing it to fold in half, forming a spear that can penetrate the striking vehicle, they allege.

Harman took his concerns to the Federal Highway Administration, the media and state departments of transportation. In the fall of 2012, three members of the American Association of State Highway and Transportation Officials (AASHTO) responded to a survey about the field performance of guardrail terminals indicating that the end terminals were involved in three severe vehicle crashes that resulted in serious injuries and deaths; two of the three agencies specifically referenced the ET‐Plus. AASHTO asked the FHWA to re-review its approval of the ET-Plus and document the modified barrier system’s crashworthiness under the federal criteria, NCHRP 350.  

Emails show that other state DOT officials were nervous about the implications of Harman’s allegations and turned to the FHWA for assurance.

In a February 2012 email to the South Carolina DOT, Nicholas Armitovich II, a highway engineer in the FHWA’s Office of Safety Technologies conceded that there were “valid questions” about the ET-Plus’s performance.

On October 1, 2012 after speaking with Harman, Keith Cota, chairman of AASHTO’s Technical Committee on Roadside Safety and chief project manager for the New Hampshire DOT also wrote to Artimovich raising concerns about Harmans’ claims:   

The question I do have is, “for the terminal units we are installing in NH, should it be providing a 5 inch feed channel or not?” We have many, many of these terminal units on our high speed facilities and this certainly causes me some strong concern for crash worthiness of the ET-Plus and ET-2000 that we have and are installing each year. I am not sure if I want to wait until the court case is decided and all the appeals have been completed to take action (20 years from now) or be ready to answer the next set of bigger questions as to 1) the need to retrofit the devices installed along our highway system and 2) who pays? I understand this has been going around for some time and I am just now becoming aware of the issues through the complainant in the lawsuit. I will be looking toward Nick to give some guidance as to how NH and other States should proceed. Should I be worried? Should I send this out to the full slot of TCRS State members? Or worst yet, should I brief my Chief Engineer? I don't like the box this puts me in!

 

Three months ago, a Dayton, Ohio couple was severely injured on I-93 in New Hampshire, when their Subaru Impreza struck an ET-Plus guardrail, which penetrated the occupant compartment at the passenger side wheel well, slicing the driver and the passenger in the legs and knees.

State departments of transportation buy highway safety equipment from a list of vendors whose products have been crash-tested and approved by the Federal Highway Administration; the FHWA reimburses states that use approved equipment. States rely on FHWA certification as an indication that the equipment performs adequately. The FHWA sought to quell the anxiety by asking Trinity to provide evidence that the design change was insignificant. Trinity sent photos of tests it said that it performed in 2005. The federal agency brushed aside the questions as a dispute between business competitors, and declared itself satisfied.

Clearly, the states are not.

 

Are Trinity Guardrails Safe?

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On June 8, Cynthia Martin and Richard Blaine Markland of Dayton, Ohio, were southbound on I-93 in Ashland, New Hampshire, when the sedan left the roadway and struck a guardrail. Those steel rails lining the highway are designed to execute a complex task: keep the vehicle from leaving the roadway without deflecting the striking vehicle back into traffic, while allowing it to safely ride down the crash forces.

But the ET-Plus guardrail that driver Cynthia Martin struck did not yield to her Subaru Impreza and peel away from the vehicle like a flat metal ribbon. Instead, it penetrated the occupant compartment at the passenger side wheel well, slicing Markland and Martin in the legs and knees. The spear formed by the folded guardrail terminal end cap sheared Markland’s knee caps and caused both to sustain serious fractures. Both have undergone multiple surgeries to repair the damage. Markland is still in the hospital two months later.

“I know we spun around,” Markland said. “The guardrail had come into the car. Cindy was feeling a lot of pressure on her leg. My right leg was an open fracture with 4-6 inches of bone exposed. My right foot was trapped between the guardrail and the airbag, and some flesh was strewn across the inside of the car. The guardrail pushed a dent in my knee area. I knew something was wrong. Seeing my leg in that condition, I was screaming.”

The Martin incident is just the latest in a string of crashes in which an ET-Plus guardrail failed to perform properly, with devastating results for motorists and their passengers. But, according to Federal Highway Administration communications with the chief engineer of the New Hampshire state department of transportation, it never should have happened. Documents released as a result of a Safety Research & Strategies lawsuit in federal court, show that the FHWA and Trinity have devoted considerable energies to tamping down allegations that a 2005 dimensional change to the guardrail end terminals have turned these highway safety devices into weapons, rather than seriously investigating them.

Dallas-based Trinity, the globally dominant producer and seller of guardrail systems, has been battling these accusations since 2012, when Joshua Harman, president of a competitor company, SPIG Industries, of Bristol, Va., charged that sometime between 2002 and 2005, Trinity modified the design of its original guardrail end terminal design, the ET-2000, causing it to fail in crashes and injure and kill occupants in striking vehicles. 

These allegations have been the subject of news stories and civil liability, patent infringement, fraud and freedom of information lawsuits. The stakes are high. State departments of transportation buy highway safety equipment from a list of vendors whose products have been crash-tested and approved by the Federal Highway Administration; the FHWA reimburses states that use approved equipment. So, the FHWA’s acceptance is critical to a manufacturer’s business. States rely on FHWA certification as an indication that the equipment performs adequately. Without knowing it, motorists also depend on the federal agency’s imprimatur when they crash into a guardrail – to get the best chance of surviving the crash safely.

Unlike other regulatory approvals from other agencies, such as the National Highway Transportation Safety Administration or the Food and Drug Administration, there is no avenue for consumer or the state to resolve defect issues. The FHWA has no enforcement power, expect to withhold its acceptance letter. The New Hampshire crash and others like it demonstrate the weakness of this “system,” when it breaks down.

The Background

In the 1960s guardrail designs used blunt ends that acted like a spear, penetrating the vehicle occupant compartment in a crash. The turned-down twist design of the 1970s buried the exposed ends, but acted like a ramp in a crash, causing vehicles to rollover. Today’s preferred design is the Energy-Absorbing End Terminal, which absorbs the crash energy, bends the end terminal away from the vehicle, and extrudes it through a slot into a flat metal ribbon.

In the early 1990s, Trinity launched the ET-2000, a guardrail system that addressed some of the safety failures of earlier designs, which speared the striking vehicle, or launched it into a rollover crash. The ET-2000 is an Energy Absorbing Terminal, which absorbs the kinetic energy of the striking vehicle, while bending the post away from it, and extruding the beam into a flattened ribbon. The FHWA first approved the ET-2000 in the early 1990s, and its field performance was satisfactory.

In 1999, Trinity launched the first version of the ET-Plus. In 2005, the manufacturer made a design change to the ET-Plus, allegedly to save material and manufacturing costs. The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the height of the feeder chute, through which the rail is extruded. With this change, critics charge, the end terminal no longer performs like those of the earlier design. Instead of bending away, the rail jams in the chute, causing it to fold in half, forming a spear that can penetrate the striking vehicle.

Trinity changed the design without notifying the FHWA, as required, until seven years later, when a patent dispute between Trinity and SPIG Industries, of Bristol, Va. brought this modification to light. Harmon repeatedly raised the issue with the FHWA, state DOTs and the media.

In the fall of 2012, three of 21 members of the American Association of State Highway and Transportation Officials (AASHTO) responded to a survey about the field performance of guardrail terminals indicating that the end terminals were involved in three severe vehicle crashes that resulted in serious injuries and deaths; two of the three agencies specifically referenced the ET‐Plus. AASHTO asked the FHWA to re-review its approval of the ET-Plus and document the modified barrier system’s crashworthiness under the federal criteria, NCHRP 350. More recently, in January, the Nevada Department of Transportation informed Trinity that its ET-Plus terminal would no longer be considered approved equipment because of the 2005 modification that was not disclosed.

Meanwhile, Harman’s whistleblower suit ended on July 18 in a mistrial, after U.S. District Judge Rodney Gilstrap concluded that both sides had hopelessly prejudiced the proceedings, calling their conduct “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.” Judge Gilstrap criticized Trinity and Harman over their conduct concerning a witness, Dean Sicking, a University of Alabama professor who designed the ET-2000, concluding that Trinity possibly intimidated Sicking and that Harman tried to hide his participation in the trial until the last minute, as a legal tactic. Gilstrap was equally disparaging about both parties’ conduct prior to trial, charging both with “multiple instances” of “delaying, obstructing, and failing to cooperate as the rules of this Court and the rules of federal procedure…”

Harmon sued Trinity in Marshall County, Texas, under the qui tam provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. In this case, Harman claims that Trinity defrauded the FHWA in selling the ET-Plus with the dimensional change without notifying the agency, as it is required to do. If the whistleblower prevails, the plaintiff can recover a portion of the damages, estimated to be as much as $1 billion in this case.  It is anticipated that the case will be re-tried in November.

ET-Plus: FHWA Hot Potato

Publicly, the FHWA has couched the controversy as a business dispute between competitors. Internally, however, documents indicate that officials within the FHWA have admitted that these questions are legitimate. The draft of a Federal Highway Administration to Trinity that was never sent, called for an “in-service performance evaluation” of the terminals and “an investigation into the crashes documented by Mr. Joshua Harman.”…”The number of highway crashes with fatal injuries involving the ET-Plus terminals does not match the excellent history of the original ET-2000 terminal.”

In a February 2012 email to the South Carolina division of the FHWA, Nicholas Armitovich II, a highway engineer in the FHWA’s Office of Safety Technologies conceded that there were “valid questions” about the ET-Plus’s performance. But, instead of independently collecting data – running its own tests, or seeking real-world crash information — the FHWA turned to Trinity to provide assurances that the design change was insignificant. By the fall of 2012, the FHWA thought it had covered its bases, and took no action against Trinity for failing to disclose the design change. It also denied a request from AASHTO to do an independent study of the efficacy of the ET-Plus, saying that in the past, the organization had not listed such a study as among its priorities.

Recently released documents from the FHWA show that its legal team was treating its responses to inquiries from journalists and the New Hampshire department of transportation with great care, and was heavily involved in the drafting of agency communications.

On October 1, 2012 after speaking with Harman, Keith Cota, chairman of AASHTO’s Technical Committee on Roadside Safety and chief project manager for the New Hampshire DOT wrote a long email to Nick Artimovich raising concerns about Harmans’ claims. He concluded:    

The question I do have is, “for the terminal units we are installing in NH, should it be providing a 5 inch feed channel or not?” We have many, many of these terminal units on our high speed facilities and this certainly causes me some strong concern for crash worthiness of the ET-Plus and ET-2000 that we have and are installing each year. I am not sure if I want to wait until the court case is decided and al l the appeals have been completed to take action (20 years from now) or be ready to answer the next set of bigger questions as to 1) the need to retrofit the devices installed along our highway system and 2) who pays? I understand this has been going around for some time and I am just now becoming aware of the issues through the complainant in the lawsuit. I will be looking toward Nick to give some guidance as to how NH and other States should proceed. Should I be worried? Should I send this out to the full slot of TCRS State members? Or worst yet, should I brief my Chief Engineer? I don't like the box this puts me in!

The FHWA sent this explanation to Cota:

On February 14, 2012, Barry Stephens and Brian Smith of Trinity Highway Products (Trinity) stated the company's ET end terminal with the 4-inch w ide guide channels was crash tested at the Texas Transportation Institute (TTI) in May 2005. Roger Bligh of TTI confirmed this information on February 14. 2012. Trinity submitted documentation on various dates of changes made to its ET end terminals, which included changes from the ET-2000 to the ET-Plus. On February 14, 2012, the company reported the reduction in the width of thc guide channels from 5 inches (in the year 2000) to 4 inches (in 2005) was a design detail omitted from the documentation submitted to the Agency on August 10, 2005. On March 15, 2012, Trinity submitted a letter to FHWA dated March 14. 2011 (sic) which stated its ET-Plus with the 4-inch guide channels was crash tested at TTI in May 2005.

Cota sought further information:

I hate to be labor this issue further, but in order to verify this situation, can you have TTI or Trinity provide a couple high resolution photos of the 2005 test installation. It is my understanding they do take these pictures prior to the crash testing event? As you know this unit is being used in many States and quite expensively here in NH. We want to have some background, supportive documentation for the change in guide plate fabrication and its use in the crash test that is covered by FHWA's ((-94 acceptance letter. We checked several of our units in the field and found each has the 4-inch guide channels.

Ultimately, Cota, like the FHWA, was assured:

Thanks. This puts to bed the issue of 4 inch versus 5 inch guide channel for the extruder heads on the ET2000 and ET Plus. It is unfortunate this critical information was omitted by Trinity in its documentation for FHWA's acceptance. I am asking our NH District Maintenance Engineers as to the experiences they have seen for the impacts and in-field performance for all our energy absorbing units to see if we have a good history with the use of these terminals (ET and SKT). In addition, I am asking what issue they have experienced with the heads being miss-aligned due to nuisance hits or winter maintenance plowing impacts by wing blades. If I am able to receive good data, I will forward it for your information.

And even the FHWA was happy. In an internal email, Armitovich told his colleagues:

It appears that New Hampshire is satisfied with our response. However the question has brought the added benefit that New Hampshire will now look more closely at the actual performance of their hardware.

It is unknown whether Cota has informed the FHWA of the Martin crash, but Blaine Markland says that he is not thrilled by the prospect of being a data point in any ad hoc study about the efficacy of the ET-Plus guard rail.

Markland has been in the Dartmouth-Hitchcock Medical Center in Lebanon, NH, since he was airlifted there on the evening of the crash. He has undergone about 20 surgeries – mainly to replace the flesh of his shin that was sheared off by the guardrail. He hopes to finally return home to Ohio soon to continue his recovery, and return to his job as a middle school special education teacher. Markland was disturbed to learn that the questions about the guardrail that caused his catastrophic injuries had been raised two years ago:

“It’s quite upsetting if they were aware at all, if they knew about the issues with this guardrail,” he says. “The whole concept of a guardrail is safety, and if this guardrail is causing this kind of damage, that has to be dealt with.”