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Judge orders guardrail maker to turn over 55,000 pages of records

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MILWAUKEE (WITI) -- FOX6 News has learned a federal judge is ordering one of the nation's largest guardrail safety companies to turn over more than 55,000 pages of internal records. The ruling comes just days after a FOX6 Investigation into potential danger on the road.

Days after a FOX6 Investigation shined some light on the controversy over guardrail end terminals, whistleblower Joshua Harman posted pictures of yet another gruesome crash. This one in North Carolina.

"It's a horrific accident. The guardrail went through the car. The impact head was sitting in the driver's seat," Harman told FOX6 News by phone.

Harman continues to tour the country, taking pictures of guardrails that he says failed to do what they were designed to do.

In February, he was in Wisconsin.

Harman is a guardrail manufacturer -- and is also the plaintiff in a federal lawsuit against one of his chief competitors -- Texas-based Trinity Industries, the maker of a popular model of guardrail end terminals -- the black and yellow striped rectangles at the end of most sections of guardrail.

"You see them everywhere," Steven Lawrence, Harman's attorney said.

They are designed to absorb the energy of a crash, safely slowing you down while preventing the rail from spearing your car and impaling you.

"It takes the guardrail and pushes it out to the side of the vehicle and slows the vehicle to a controlled stop," Lawrence said.

Harman and Lawrence say in most cases, you can hit one of these devices at 60 miles-per-hour and walk away from the crash.

"The original design was an ingenious product. I have repaired them and seen people survive accidents they shouldn't have," Harman said.

Actually, Harman did more than just repair them. A few years ago, he started making what Trinity calls a "copy" of its patented "ET-Plus" guardrail terminals.

Trinity sued Harman for patent infringement, and Harman's companies stopped production.

"They're idle at this point," Harman said.

Since then, Harman has filed his own lawsuit, accusing Trinity of making secret modifications to the "ET-Plus."

Trinity says it's retaliation, but the company now admits it inadvertently failed to tell the federal government about its design changes.

"They took a product that was working just fine and, in order to make more money, they changed it," Lawrence said.

Sometime between 2002 and 2005, Harman says Trinity reduced the size of the "ET-Plus" feeder channel from five inches wide to four.

The result?

"These terminals are failing at an alarming rate," Harman said.

From Texas to Maryland, Oklahoma to Tennessee, guardrails buckle and crumple and spear -- and Harman claims they are proof that the smaller "ET-Plus" is failing, in some cases, impaling drivers with the guardrails that were meant to protect them.

The very same guardrail end terminals found on many Wisconsin highways.

Trinity has sued Harman for defamation twice, and then dropped each case when Harman tried to force them to turn over critical documents.

"In a lawsuit they have to produce discovery. They averted all that by dismissing their own case," Harman said.

A recent development in the whistleblower case means Harman's legal team will soon get those documents after all.

A Texas judge has ordered Trinity and Texas A&M University, which designed the system, to turn over more than 55,000 pages of internal records. That's 255 boxes of documents that Trinity has fought vigorously to keep secret.

"It shows that they`re just systematically hiding documents from the public. From the court. They`re trying to play hide the ball. And it`s not working out," Harman said.

Harman expects the documents will reveal vital information about the design changes, crash test results -- as well as inquiries from foreign governments.

"These things are failing in other countries, killing people, impaling the cars, Australia, New Zealand, United Kingdom, Canada," Harman said.

Trinity is still fighting to keep the public from seeing the documents -- asking the court to classify them as "highly confidential" -- for attorneys eyes only.

Harman says eventually, the truth will come out.

"Once they become public, there is no denying," Harman said.

Trinity has declined FOX6 News requests for interviews.

The company sent FOX6 News a prepared statement that says Trinity "has a high degree of confidence in the performance of the ET-Plus system" -- pointing out that even after reviewing Harman's claims, the Federal Highway Administration "re-affirmed" its acceptance of the ET-Plus in 2012.

The device remains one of two guardrail end terminals approved for use in Wisconsin.