Submitted by Personal Injury lawyer, Jeffrey Hark.
Originally published here by the New York Times.
By last month, state transportation officials in Missouri said they had seen enough.
Federal highway officials had long insisted that guardrails throughout the state were safe. But some guardrail heads had apparently malfunctioned, in essence turning the rails into spears when cars hit them and injuring people instead of cushioning the blow, Missouri officials said.
“The device is not always performing as it is designed and intended,” a Missouri transportation official wrote of the problematic rail heads in an internal communication.
Because of its safety concerns, Missouri banned further installation of the rail heads on Sept. 24. It joined Nevada, which prohibited further purchases in January, and was followed six days later by Massachusetts. Lawsuits say the guardrails were to blame for five deaths, and many more injuries, in at least 14 accidents nationwide.
The Federal Highway Administration, the agency charged with ensuring the safety of the nation’s roads, continues to say that the guardrails, installed on highways in almost every state, meet crash-test criteria. And the Texas-based manufacturer, Trinity Industries, a large supplier of guardrails nationwide, also denies there is a problem.
But internal communications and documents from the highway administration show that a senior engineer charged with examining the guardrails expressed reservations about their safety, before he signed off on their continued use about two years ago.
At one point, agency officials drafted a letter asking the manufacturer to conduct additional testing, but the letter was never sent, according to interviews and a review of the documents by The New York Times.
“There does seem to be a valid question over the field performance,” the senior engineer, Nicholas Artimovich, wrote in an email to his colleagues in February 2012, after an agency engineer based in South Carolina raised questions about the guardrails.
In a separate email to an outside safety expert a month later, Mr. Artimovich wrote that it was “hard to ignore the fatal results.”
The federal agency continues to allow states to use federal funds to purchase and install the rail heads. Concerns over the guardrails are at the center of a federal lawsuit expected to go to trial on Monday in Marshall, Tex.
“Nothing was done and now people’s lives are being taken,” said Darius Williams, a 24-year-old who said he was injured by a guardrail in a crash in North Carolina in February. “This could have been prevented.” He has not filed a lawsuit.
In response to questions submitted by The Times, a spokesman for the highway agency, Neil Gaffney, said the agency approved the guardrails based on results of crash tests conducted in 2005 by Trinity and a Texas A&M University laboratory, which declined to comment.
The agency again reviewed the results of those tests and others in 2012 and was satisfied with them, Mr. Gaffney said. The agency declined to make Mr. Artimovich available for an interview.
A spokesman for Trinity said in a statement, “Trinity has a high degree of confidence in the performance and integrity of the ET-Plus system,” using the product name of the guardrails.
The guardrail safety concerns come during heightened scrutiny of federal safety regulators’ role in adequately policing automobile companies.
Congressional investigators are looking into why the National Highway Traffic Safety Administration, a federal agency separate from the Federal Highway Administration, failed to act on multiple reports of faulty ignitions in cars made by General Motors, a defect linked to at least 24 deaths.
In both instances, questions are being raised about the close ties between federal safety agencies and the companies they are charged with overseeing. The internal communications at the Federal Highway Administration show that Mr. Artimovich endorsed the Trinity guardrails after meeting privately with company officials and being assured the tests were adequate.
But some were skeptical. “Scary to think the system is no longer working as it was originally designed,” a Connecticut engineer wrote to Mr. Artimovich, adding in a separate email that she was “leery of the product.”
The Connecticut engineer asked if she should put a moratorium on new installations until the issue was resolved. “These are questions we are looking into also,” Mr. Artimovich replied in an email on March 14, 2012.
At the heart of the issue is a change to the guardrail that Trinity made in 2005.
Trinity’s new design reduced the width of the steel channel behind the rail head, from five inches to four. Instead of sliding along the rail, helping it curl out of the way of the oncoming vehicle, the rail head can become jammed, some state officials say. In those cases, the long metal guardrail does not get pushed aside — instead, it can become a bayonet that can pierce the vehicle and any person in its way, the state officials say.
Design changes, along with detailed diagrams, are supposed to be disclosed to the Federal Highway Administration.
But when Trinity narrowed its rail head design it did not make any such disclosures. In response to a question from The Times, Trinity said it submitted results of the crash tests to the agency in 2005, though it did not directly address whether it highlighted the change to the rail head.
For at least seven years, tens of thousands of the modified ET-Plus rail heads were installed from coast to coast. It was only in 2012, after a patent case in Virginia led to the discovery of the change, that the federal highway agency was alerted.
Trinity sued Joshua Harman, the part owner of two companies that manufacture and install guardrails, for patent infringement in 2011. During that case, Mr. Harman learned of the Trinity design changes and in 2012 reported them to Mr. Artimovich. That legal dispute led him to file a federal lawsuit against Trinity under the False Claims Act, and to the trial expected to begin on Monday.
Seeking more information about Mr. Harman’s claim, Mr. Artimovich met with Trinity representatives in February 2012. Trinity told Mr. Artimovich that the rail head, also called an end terminal, had indeed been redesigned and had been properly tested, according to documents in the case. After 30 to 40 minutes, the meeting adjourned. Mr. Artimovich also met privately with Mr. Harman.
A week later, an engineer at the South Carolina Transportation Department told the agency that he had been informed that Trinity’s product was not being manufactured to specifications. The email was forwarded to Mr. Artimovich who, on Feb. 27, wrote to colleagues that he believed Trinity had correctly tested the redesigned rail heads.
But he also expressed his doubts about the field performance “of the current ET-Plus compared to earlier versions.”
Almost three weeks later, on March 14, Mr. Artimovich wrote to a highway safety expert, asking for advice about rail heads. His letter suggested that agency officials had long harbored doubts about the ET-Plus.
“Before these allegations came to our attention earlier this year, we have become concerned about other unexpected performance issues with ET heads,” he wrote. Also that day, he corresponded with the engineer at the Connecticut Transportation Department who inquired about a possible moratorium.
By May, the agency had drafted the letter that sought additional testing from Trinity.
“Even though it appears that the ET-Plus terminal can still meet crash testing requirements,” the draft said, “the number of highway crashes with fatal injuries involving the ET-Plus terminal does not match the excellent history of the original ET-2000 terminal.”
Over the months that followed, concerns about the rail heads continued, including from officials in Illinois, New Hampshire and South Carolina, all of them prompted by Mr. Harman’s allegations.
But by October, the agency had not sent the letter. An agency spokesman said that at the time, the agency did not have enough evidence independent of Mr. Harman’s allegations that there were problems.
Pressed for an answer, Mr. Artimovich said that they remained eligible for federal reimbursement in an email to two state officials on Oct. 11, 2012.
Incidents involving the guardrails continued to be reported, and states began acting on their own.
Mr. Williams, the North Carolina driver, lost control of his car on an interstate in February, causing an accident the police attributed to reckless driving. The guardrail did not function as intended, his lawyer, Steven Lawrence, said, and punctured the car’s door, breaking his arm, leg, pelvis and eye socket and injuring his spine.
Trinity said in an email that it was impossible to draw broad conclusions from individual accidents, saying each one was affected by different circumstances.
But Nevada stopped further purchases of the ET-Plus in January, citing Trinity’s failure to disclose the change in 2005. Last month, Massachusetts and Missouri issued bans of their own.
On Friday, Tony Furst, a safety administrator at the Federal Highway Administration, issued a memorandum requesting that state transportation departments provide information about the ET-Plus’s performance.
“Ask that they pay particular attention to all crashes involving these devices,” he wrote, “and request that any findings from their investigations be shared with the FHWA Office of Safety.”