A Texas federal judge Monday declined to toss a False Claims Act suit alleging that Trinity Industries Inc. secretly changed the design of its ET-Plus guardrail end terminal, finding the plaintiff entitled to additional discovery to prove his accusations.
The FCA complaint was brought against the highway guardrail manufacturer by relator Joshua Harman of Swords Creek, Va., on March 6, 2012, following his publicity campaign to highlight the deficiencies of the new ET-Plus, according to the opinion.
The ET-Plus was designed to absorb and dissipate the impact of a collision by flattening the guardrail and pushing it out into a ribbon that is deflected away from the collision, thereby reducing the impact forces felt inside a crashing vehicle. Trinity first had the device approved for use by the Federal Highway Administration in 2000.
But Harman claims Trinity changed the design of its ET-Plus sometime between 2002 and 2005 and that the modifications were so substantial that the modified version no longer functions as originally intended. The new design locks up, folds over and protrudes into the crashing vehicle, according to Harman.
But Trinity never specifically disclosed these changes to the FHWA or test the units according to FHWA protocols, Harman said. The FHWA approved the unit for certain Midwestern highways after Trinity reported the results of a crash test in 2005, but it is uncertain whether Trinity used the new ET-Plus for the test.
Harman alleged Trinity falsely claimed that the modified ET-Plus was properly crash tested and that the 2005 test did not adequately ensure the unit’s safety.
Harman is represented by Nicholas A. Gravante Jr., Karen Dyer, George F. Carpinello and Jeffrey S. Shelly of Boies, Schiller & Flexner LLP, Wyatt B. Durrette Jr. of Durrette Crump PLC, Josh B. Maness, Justin Kurt Truelove and Steven Lawrence.
The case is United States ex rel. Joshua Harman v. Trinity Industries Inc. et al., case number 2:12-cv-00089, in the United States District Court for the Eastern District of Texas.
Read More: http://www.law360.com/articles/498867/trinity-can-t-dodge-fca-suit-over-defective-guardrails