MILWAUKEE (WITI) -- It's one of the most terrifying things you can imagine on the road. Your car strikes the butt end of a guardrail at 65 miles per hour and a shaft of steel penetrates the exterior and goes straight through the cabin. It's not supposed to happen anymore, but it does.
Now, a nasty court battle is raising serious concerns about the effectiveness of a common safety device at the end of most sections of guardrail.
- KEY DOCUMENTS:
- Trinity's patent infringement lawsuit against Harman
- Harman's whistle-blower lawsuit against Trinity
- Trinity's defamation lawsuit against Harman
- Harman's timeline of events
- Trinity's letter to state DOT's about Harman's allegations
- Trinity's official statement to FOX 6 News
You drive past them everyday, and probably never even notice those black and yellow striped rectangles at the front end of most roadside guardrails. They are part of a special safety device called a 'guardrail end terminal.'
A federal whistle-blower says one particular model is failing at an alarming rate. And he came all the way to Wisconsin to prove it.
"How many more people has got to die before something's done?," asks Joshua
Harman, a guardrail engineer from Virginia. He is the plaintiff in a federal "False Claims Act" lawsuit against Texas-based Trinity Industries, maker of a popular model of guardrail end terminals.
"You see them everywhere," says Steven Lawrence, an attorney representing Harman in the federal case.
The guardrail end terminals -- or 'heads' as they're called by engineers -- are designed to absorb the energy of a crash (see 1999 crash test video), 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," Lawrence explains, "and slows the vehicle to a controlled stop."
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. If, that is, you're hitting the right model.
"The original design was an ingenious product," says Harman. "I have repaired them and seen people survive accidents they shouldn't have."
Actually, Harmin 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 says.
Now, Harman is a man on a mission to prove Trinity's own guardrail terminals are dangerous. In 2012, he filed a lawsuit, accusing Trinity of making secret modifications to the ET-Plus that were never disclosed to the Federal Highway Administration.
"They took a product that was working just fine and, in order to make more money, they changed it," Lawrence says.
According to the lawsuit, sometime between 2002 and 2005, Trinity reduced the size of the ET Plus feeder channel from five inches wide to four. More important, says Lawrence, is what they did to the inside of the terminal.
"They essentially shrunk it," Lawrence says.
To demonstrate why that matters,Harman took the Fox 6 Investigators for a ride on the Milwaukee freeway system. On I-43 just south of Mequon Road, he shows us a competing guardrail head -- the SKT-350 -- that was recently involved in a low-speed crash. SKT stands for "Sequential Kinking Terminal," which describes the manner in which the device absorbs a car's energy, by kinking the guardrail's W-beam as it is forced through a feeder chute.
"You can actually see right there they slid right into it," Harman says, as he points to a guardrail head that's pushed in about 8 feet, and cocked just slightly to the right. "So the product worked perfectly. Still facing traffic."
Just a few hundred feet down the interstate, he spots a 4-inch ET Plus. It works by flattening the W-shaped guardrail like a pancake, then shooting it out the side. But Harman says because of the shrunken internal dimensions of the feeder chute, the guardrail often gets stuck inside the ET-Plus guide chute.
"Right in here is where it chokes," Harman says, as he points to a narrow spot in the throat of the device. The result?
"These terminals are failing at an alarming rate," Harman says.
From Texas to Maryland and Oklahoma to Tennessee, guardrails buckle and crumple and spear. Drivers are seriously injured. Sometimes killed. And Harman claims each case is further proof that the smaller ET Plus is failing, in some cases impaling drivers with the very guardrails that were meant to protect them.
Last June, firefighters in Gurnee, Illinois, extricated a man from mangled wreckage on Highway 41.
"The terminal locked up," Lawrence says. "His car flipped around, and the guardrail went through his driver side door, essentially cutting him in two."
Miraculously, 22-year-old Tim Benson survived.
"He will never be the same," Lawrence said.
Five months earlier, a woman in Kingsport, Tennessee hydroplaned in a rainstorm, striking a four- inch ET Plus.
"The energy from the car flipped her car in such a violent manner that it killed her," Lawrence says.
The driver was 42-year-old Elizabeth Elsevier, whose parents live in Germantown, Wisconsin. Her sister, who also lives in Wisconsin, tells FOX 6 News that the family fully supports the lawsuit that's been filed against Trinity on Elizabeth's behalf in Tennessee. However, they decided as a family not the discuss the matter in a television news story.
"It's horrific what's happening to these families," Harman says.
Trinity says it's impossible to tell from photos alone if a guardrail terminal failed.
The company emailed Fox 6 News a statement that says Trinity "has a high degree of confidence in the performance of the ET Plus system," which it says was successfully crash-tested in 2005 with the four inch channels. Trinity points out that, even after reviewing Harman's claims, the Federal Highway Administration "re-affirmed" its acceptance of the ET Plus in 2012.
"It's embarrassing to the government," Harman says, "so they really want this to go away as bad as Trinity does."
Harman certainly isn't going away. In the past two years, he's been interviewed for television stories in Dallas, Atlanta, San Diego, San Francisco, Phoenix, and West Palm Beach. And he's posted his entire photographic database on a website called Failingheads.com.
Trinity says Harman's claim that the pictures represent a failure of the ET Plus is "false and misleading." Trinity has sued Harman for defamation twice, but later dismissed both suits voluntarily.
"They dismissed their own case," Harman says.
One thing is indisputable. Trinity did make changes to the ET Plus.
The question is why.
"Why did you change this?" Harman asks. "Who told you to change it? The answer is resounding. 'I don't remember.'"
Harman and his legal team believe they know the answer. They say Trinity used to market its end terminals to the government as being re-usable, but after shrinking the dimensions, Lawrence says it is far less likely a terminal can be salvaged after a crash.
"So now, every time there's an accident with the ET-Plus, Trinity sells a new terminal," he says.
It's the type of sinister accusation that could get you sued. If, that is, lawsuits are the kind of thing that scare you.
"I know I'm not wrong. They know I'm not wrong," Harman says.
Trinity argues that this whole media campaign by Harman is simply retribution for the patent infringement lawsuit. Harman insists it is not payback, but rather a genuine concern about a defective product. His federal whistle-blower case is still ongoing.
The Wisconsin Department of Transportation says it is still monitoring what is happening on a national level, but - at least for now - the ET-Plus remains one of two "energy absorbing terminals" or EAT's that are approved for use on Wisconsin roads.
Last winter, Trinity Industries sent a letter to all state DOT's -- including Wisconsin -- to head off the public criticism from Harman. The letter explains that the reduction from a 5-inch to a 4-inch guide channel was done at the recommendation of researchers at the Texas A&M Transportation Institute, which developed the system in the first place.
Trinity's letter claims the size reduction was intended to "enhance the performance" of the system by improving the alignment around the guardrail. So why didn't Trinity tell the government about that change for 7 years?
The letter says Texas A&M researchers "inadvertently omitted" a drawing that reflected those changes when applying for approval in 2005.