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Tuesday, November 4, 2014

Whistleblower Stops Trinity’s Faulty Designs Injuring Motorist

Whistleblower Stops Trinity’s Faulty Designs Injuring Motorist

By Leslie Watkins, Intern
The Cochran Firm

Josha Harman blew the whistle on Trinity Industries Inc. and Trinity Highway Products, LLC (collectively, Trinity) that manufactures highway safety equipment. Harman filed a complaint on behalf of the United States and himself to protect unknowing citizens who drive on the Federal highways system from Trinity’s ET-Plus guardrail end terminals.

The ET-Plus system, known as the “head,” are often marked with yellow and black or black and white reflectors attached to the side of w-beam guardrails facing on-coming traffic on a public highway. In conjunction with the “head,” the w-bean guardrails placed longitudinal on the side of highway are designed to flatten the guardrail into a ribbon to absorb vehicle impact to minimize injury of a motorist.  However, through research and a combination of public records, Harman was able to conclude that Trinity altered the ET-Plus system, approved by the Federal Highway Administration (FHWA), design without the approval or disclosure of the Federal Highway Administration, which provided reimbursement from the government to Trinity for installing the ET-Plus system on guardrails. 

Modifications of the “head” between 2002-2005 were reportedly dangerous upon impact through locking up and not flattening out, creating further damage to the vehicle and motorist. In the precedent case, on behalf of the United States against Trinity in the U.S. District Court for the Eastern District of Texas, Harman alleged that Trinity’s lack of disclosure and certainty of false statements about the modifications of the ET-Plus System violated the False Claims Act. The matter decided by the jury at trial awarded $175,000,000.00 in damages in favor of the United States finding Trinity knowingly made or submitted false claims.

The False Claims Act (FCA) provides whistleblowers that are private individuals with knowledge of fraud, whether past or present, on the federal government to bring a request or demand on behalf of the federal government to recover damages. Harman under the FCA was able to make a demand or request to meet all elements of the Act required to bring a claim:

First, (1) Trinity made or, by record or statement, caused to create a claim for payment against the government; Secondly, (2) the claim, record, or statement was materially false or fraudulent; and finally, (3) the false or fraudulent claim, record, or statement made by Trinity was made knowingly.

Alterations of the ET-Plus units not specifically disclosed to the Federal Highway Administration were not tested in accordance to the protocol of the FHWA. Test of the ET-Plus system in 2005 disputed whether the systems tested were of the modifications or not, furthering Harman’s claims of the test being misrepresented, not ensuring the safety of the systems.

With the return of the juries’ verdict on behalf of the United States, more states in addition to the previous mid-west states such as Texas are banning the usage of ET-Plus systems to minimize the risk of further injuries of motorist driving on public highways.  Motorists that receive additional injuries themselves or to a vehicle upon impact of the “head” locking up and not flattening out the guardrail as designed, should seek an attorney to inquire about any possible recourse for damages. Of course, safety comes first but in the event of a risk to others or self, if there are any causes of action that may endanger public safety that are funded by the government through private industry, as Harman did, blow the whistle and seek proper authorities to help prevent future incidents.

This article is based on the law as it stands on October 31, 2014, and the facts in the case of United States ex rel. Harman v. Trinity Indus., 2014 U.S. Dist. LEXIS 973,2014 WL 47258 (E.D. Tex. Jan. 3, 2014) and Jury Verdict of October 14, 2014.

posted by The Cochran Firm at 1:20 PM

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