Guardrail Maker Fights $663 Million Judgment

     MARSHALL, Texas (CN) – Trinity Industries asked a federal judge to toss a $663 million judgment against it and grant a new trial on guardrails blamed for spearing motorists in crashes.
     Trinity claims that new evidence will show that its ET-Plus guardrails passed inspection.
     Joshua Harman sued the Dallas-based company under the False Claims Act in 2011, claiming Trinity changed the design of the rail head in 2005 without telling the Federal Highway Administration. Trinity then sold the guardrails to states that received federal reimbursement.
     Harman claimed the design changes could transform the guardrail into a spear during a crash, rather than pushing cars away from the rail.
     U.S. District Judge Rodney Gilstrap tripled the $175 million a jury awarded in October 2014 and assessed $138 million in civil penalties: $8,250 for each of the 16,771 false certifications Trinity made for false payment claims. He also ordered Trinity to pay $19 million in attorneys’ fees and expenses.
     Trinity on Tuesday filed a motion for a new trial , saying Federal Highway Administration and American Association of State Highway and Transportation Officials released a report on March 11 that concluded “(t)here is no evidence to suggest that there are multiple versions” of the redesigned guardrails across the nation.
     Trinity said the Federal Highway Administration announced on Feb. 6 and March 13 that crash tests performed and separately evaluated by it, the Southwest Research Institute and an independent engineering expert concluded that “all four tests passed the NCHRP [National Cooperative Highway Research Program] Report 350 criteria.”
     Trinity claims that evidence would have changed the outcome of the trial, as it “squarely debunks” the claim that there are “multiple versions” of the guardrail on the roads today.
     “The Dimensions Report issued by the AASHTO-FHWA Task Force directly confronts – and rejects – one of Harman’s primary theories of liability,” the motion states. “Harman repeatedly argued that Trinity had committed an ongoing fraud against the FHWA by withholding information about recent design changes to the ET Plus. Harman’s expert, Dr. Brian Coon, further claimed that he did not conduct crash testing on the ET Plus because ‘I wouldn’t have an idea of which of the different designs to use … I wouldn’t know which version of their 4-inch ET Plus to use.’ And Harman himself repeatedly asserted that further investigation by the FHWA would ultimately substantiate his claims.”
     Trinity said the crash test results and Dimensions Report undermines the fraud claims and confirms that the federal government received the benefit of its bargain.
     “If introduced at trial, the official crash test results would have rebutted any concerns about the safety of the ET Plus and, together with the Dimensions Report, undercut Harman’s theory of fraud,” the motion states. “They also would have conclusively demonstrated that the government received the full benefit of its bargain – namely, a product that is NCHRP Report 350 compliant. That, of course, is the linchpin of the jury’s damages award. Under the ‘benefit of the bargain’ measure of damages, the government’s damages are equal to the difference between the value of the ET Plus system that was sold – one that allegedly was not compliant with NCHRP Report 350 – and the ET Plus system as it was represented to be.”
     Trinity said the evidence existed during the trial but was not discoverable until the trial was over.
     “The dimensions of the ET Plus systems installed on roads across the country were surely ‘in existence’ at the time of trial, and Trinity presented testimony to that effect,” the motion states. “But Trinity had no ability to commission a government audit, and was therefore ‘unable to establish [the dimensions] in detail as the later audit did.’ Even though Trinity could not have presented an external dimensions audit at the time of trial, those dimensions ‘did exist.’ The same is true for the crash tests.” (Brackets in motion.)
     Trinity spokesman Jeff Eller said in June that the company would appeal Gilstrap’s ruling to the Fifth Circuit.
     “The company believes the evidence clearly shows that no fraud was committed,” the company said at the time. “Trinity also believes that the trial court made significant errors in applying the federal law to Mr. Harman’s allegations and, therefore, the judgment is erroneous and should be reversed in its entirety.”
     Trinity said the FHA “has repeatedly confirmed that the ET-Plus is fully compliant with all applicable federal safety regulations – and that the ET-Plus is and has always been eligible for reimbursement” under federal aid programs.
     Shortly after the October jury verdict, Trinity announced it would stop selling ET-Plus.
     Gregg Mitchell, president of Trinity subsidiary Trinity Highway Products, said stopping the sales was “the right thing to do.”

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