The guardrail has been linked to numerous deaths since 2005, when a design change produced a deadly malfunction. According to numerous reports, the new design caused a piece of metal that normally crumples upon impact to instead pierce through the vehicle body, killing or gravely injuring car occupants.

A few days before Louisiana and many other states rushed to ban the guardrail, a federal court jury found that the manufacturer, Trinity Industries, had defrauded transportation regulators by changing a piece of the guardrail’s end cap without divulging that information for several years. The jury decided that Trinity Industries should pay at least $175 million. The Dallas Morning News reports that a judge could decide to triple that figure.

Trinity Industries stands by the safety of the product and plans to appeal the verdict, according to Bloomberg News.

While many states have already banned future installations of ET-Plus highway guardrail, Virginia has gone one step further, announcing plans to remove all of the defective end-caps from existing ET-Plus guardrails throughout the state.

By Mary Ellis LaGarde

Missouri resident Brad Abeln was killed in January after another driver swerved and pushed him into the guardrail.

According to whistleblowers, the faulty guardrail contains a steel bar that should function as a shock absorber but instead acts as a sort of bayonet, piercing through the automobile body and injuring or killing those inside. A whistleblower trial against the manufacturer, Trinity Industries, is underway in a federal court in Texas.

The New York Times has found emails showing that official concerns about the fatal consequences of the guardrail design date back to 2012. Those concerns were not made public, and states did not begin banning the guardrail until this year.

In the wake of Abeln’s death, the state of Missouri and a non-profit advocacy group commissioned a study of the guardrail. The results showed that the guardrail had a fatality rate three times higher than that of a previous design. Missouri banned future purchases of the guardrail in late September.

The federal lawsuit against Trinity Industries alleges that the company secretly changed the guardrail design to save money, and then mislead state transportation departments to hasten purchases.

Several wrongful death lawsuits have been filed in relation to the guardrail, according to Bloomberg News.

The federal case is Harman v.Trinity Industries Inc. It was filed in the U.S. District Court for the Eastern District of Texas. The case number is 2:12-cv-00089.

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The lawsuit was filed by a whistleblower alleging that guardrails produced by Trinity Industries, a Texas-based guardrail manufacturer, are malfunctioning and killing drivers. The lawsuit further charges that the guardrail defect is the result of a product change that the company hid from the government and safety inspectors.

The judge dismissed the case over what he found to be “inappropriate conduct” on both sides, according to a report from the Wall Street Journal. The judge suggested that representatives from Trinity Industries may have tampered with witnesses. Further, the judge found that the whistleblower and plaintiff, Joshua Harman, may have destroyed evidence.

Since Harman has come forward with the charge of a product defect, numerous accident victims have claimed that guardrails malfunctioned, causing injury or death. A recent article by Bloomberg News noted that at least nine lawsuits have been filed by victims claiming personal injury or wrongful death caused by the guardrail malfunction.

The danger, according to Harman, is the end-cap on some of the guard rails. Allegedly, an impact plate that is meant to absorb energy and move along with the car can instead malfunction and pierce through the car, grievously injuring those inside.

Trinity Industries denies that any secret change was made to the guardrails. The company acknowledges that a change was made, but it insists that all regulatory bodies were appropriately informed and that all necessary safety testing was performed. The company also insists that the guardrails function properly, and it has not recalled any of the hundreds of thousands of implicated guardrails that currently line highways across the United States.

The case in question is Harman v. Trinity Industries, 2:12-cv-00089, in the U.S. District Court, Eastern District TX.

At The Hale Law Firm, we have helped thousands of clients successfully prosecute their personal injury claims including auto accidents, wrongful death, dangerous products, brain injuries, burn injuries, and defective medical devices. Clients depend on their personal injury attorneys for guidance and legal advice across a broad range of personal injury accidents. To learn more, visit http://www.hale911.com/ or call 972.351.0000.