California transportation officials said they will stop using ET-Plus guardrails made by Trinity Industries on all highways and roads throughout the state and will replace the existing rails “as needed” amid concerns the guardrails can malfunction and cause serious injury or death.
“If there is a section of roadway under construction or an incident, they will be replaced with another type of guardrail,” Matt Rocco, Media Relations Manager the California Department of Transportation (Caltrans) told NBC 7 Investigates.
Trinity’s ET-Plus guardrails fell under scrutiny after whistleblower Josh Harman took Trinity to Court under the False Claims Act, alleging the company secretly altered their design without Federal Highway Administration (FHWA) approval.
Mr. Harman alleged the new design, which included shortened end terminals, caused the guardrails to malfunction when struck certain ways and act like giant spears that impaled vehicles and their occupants.
In October 2014, a Texas federal jury sided with Mr. Harman in the case and the judge ordered Trinity to pay $175 million in restitution, which automatically tripled to $525 million under the requirements of the False Claims Act.
The following June, U.S. District Judge Rodney Gilstrap upheld the jury’s verdict and fined Trinity an additional $138.4 million in civil fines plus $20 million for Mr. Harman’s legal costs, bringing the total cost Trinity has to pay to $683.4 million.
Trinity is appealing the verdict and insists its ET-Plus guardrails meet federal safety standards.
California lawmakers often raise the bar on safety standards, exceeding minimal federal requirements. Mr. Rocco told NBC 7 Investigates that Caltrans is “moving towards more rigorous testing of its safety devices” through the American Association of State Highway and Transportation Officials (AASHTO), which provides research and guidelines for the testing of guardrails and other highway safety equipment.
In June, Trinity Industries entered into an agreement with the FHWA requiring it to hire a compliance officer and start a compliance program as well as an independent monitor that will oversee the company’s regulatory compliance for a three-year period.