RICHMOND, Va. (CN) - Virginia has joined a whistle-blower lawsuit against Trinity Industries Inc., over its alleged defective and unsafe highway guardrails.
By intervening in the lawsuit filed by Joshua Harman, a former guardrail engineer, the Commonwealth becomes the first municipality to try to wrest back the money it spent on the guardrails.
Virginia's lawsuit follows a series of accidents across the country involving death or serious injury following modifications of the guardrail that appear to have failed. it is seeking civil penalties and recovery of costs if tests that are now underway show the guardrails are defective and need to be replaced.
The modifications in question were made to a piece of the guardrail system called the end terminal in 2005. The new version of the end terminal, called ET-Plus, was put into service by Trinity Industries with the notification of state and federal officials.
In a written statement, Virginia Attorney General Mark Herring described the company's actions as unconscionable.
"It is shocking that a company would think they could secretly modify a safety device in a way that may actually pose a threat to Virginia motorists," Herring said, adding, ""If any replacements must occur, we're going to make sure that Trinity, not Virginia taxpayers, pay the bill."
According to a complaint filed in the state court in Richmond, "Once a product is approved for use on the National Highway System, its design specifications cannot be altered without undergoing additional testing and/or approval."
"Yet Trinity continued to falsely represent that the modified ET-Plus was approved for federal reimbursement and approved by Virginia ... when approval had never been sought or granted," the complaint said.
The guardrail is designed to lessen impact during car accidents. Modifications to the design include shortening of clearance where the end terminal connects to w-shaped guardrails, allegedly sparing material and production costs.
These changes, the lawsuit says, are potentially deadly.
"If a vehicle strikes the modified ET-PLUS, the modified internal dimensions of the ET-PLUS can cause the guardrail to lock in the throat of the unit, thereby causing the unit to malfunction, creating a hazard to the occupants of the vehicle and others," the complain says.
"Once throat locked, the energy of the crash is diverted elsewhere which can cause the guardrail to double over on itself or to protrude through the crashing vehicle. If the guardrail and head assembly protrude like a spear through the vehicle, the result can be death or serious bodily injury."
According to the complaint, the ET-Plus failed five safety tests between 2005 and 2006. Trinity did not disclose these results to the Federal Highway Administration or the Virginia Department of Transportation, who are currently undergoing safety tests on Trinity guardrails.
But Trinity, which said it was "surprised deeply disappointed the Commonwealth of Virginia chose the lawsuit path."
"We are in the process of conducting the eight tests requested by the FHWA, which includes the two tests specifically requested by Virginia," Trinity spokesperson Jeff Eller said.
Trinity said that because its product satisfies National Cooperative Highway Research Program safety test requirements, and therefore continues to be eligible for federal reimbursement.
The company also claims that Virginia had no disclosure requirement before May 2014, and that evidence of product design failure is inconclusive.
This is Harman's second time whistle-blowing on Trinity. In 2011, Harman and the United States were awarded $525 million in a False Claims Act suit over changes to the ET-Plus in Texas. Similar suits against the corporation have been filed in several states. Harman, who owns a highway contracting company based in Virginia, is suing pursuant to the Virginia Fraud Against Taxpayers Act, whereby he is entitled to 15 to 30 percent of the recovery.
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