Highway official stood by guardrail system as doubt mounted

NEW YORK — U.S. highway safety officials defended a widely used guardrail system’s crashworthiness even as they worried whether its design had been altered in a potentially deadly way, according to internal emails.

Starting in 2012, a Federal Highway Administration engineer fielded emails from state officials, plaintiffs’ lawyers and others asking about a change that Trinity Industries Inc. had made to its guardrail system years earlier.

The engineer, Nick Artimovich, told one state official that Trinity had a good track record. In another instance, after a safety expert wrote to Artimovich that Trinity may have made a second unauthorized change, the engineer forwarded the allegation to a Trinity consultant, suggesting he alert the company’s lawyers.

Several such exchanges show how Artimovich, whose agency’s aim is to ensure the safety of America’s roads, related to Trinity, which stood to gain millions of dollars in federal funds from the agency’s sign-off on its products.

“My ‘customers’ include both the industry and the driving public,” Artimovich responded in a March 2012 email to a plaintiff’s lawyer who had asked him to investigate the design change. He added: “However, profit does not outweigh human life.”

Trinity did continue to profit, for more than two years, as it sold the system under the federal agency’s certification.

On Oct. 20, a Texas jury found that Trinity, one of the nation’s main producers of the shock-absorbing mechanisms mounted at the end of guardrails, had changed the units’ dimensions without notifying the safety agency.

The plaintiff, Joshua Harman, alleges that there are hundreds of thousands of modified Trinity end terminals around the country prone to jamming up instead of giving way when hit, potentially spearing vehicles and leaving their occupants with grave injuries. Harman’s cross-country quest to document accidents related to Trinity’s so-called ET-Plus end terminal was the subject of a Bloomberg News article in June.

Trinity’s false claims about the unit defrauded taxpayers of $175 million, the Texas jury said. States received that much in federal reimbursements for the ET-Plus since 2006. The jury wasn’t asked to rule on the ET-Plus’s safety.

The day after the verdict, the FWHA told Trinity, which stands by the product’s safety and plans to appeal the verdict, that it had 10 days to come up with a plan to crash-test the modified version. The agency said it would review the plan it received on Oct. 31 “expeditiously, but carefully.”

“Widespread use of these potentially dangerous guardrails was on FHWA’s watch, and I demand to know why FHWA allowed it” even after evidence of the change became apparent in 2012, Sen. Richard Blumenthal, D-Conn., wrote last week in a statement accompanying a letter to the FHWA’s acting administrator, Gregory Nadeau.

Federal safety officials “need to be growling, not cuddling up to the industry,” Blumenthal added in an interview.

Criticism of the FHWA, a division of the Department of Transportation, is emerging as U.S. highway-safety overseers face some of their sharpest scrutiny in years. Another DOT agency, the National Highway Traffic Safety Administration, is at the center of firestorms over whether it has been slow to respond to defective ignition switches in General Motors Co. vehicles and Takata Corp. air bags that can deploy with potentially lethal force.

Artimovich didn’t respond to requests for comment and the FHWA declined to make him available.

In an emailed statement last week, the FHWA said that in 2012, it reviewed ET-Plus crash test data and reports from states about accidents involving end terminals. This summer, the agency reviewed ET-Plus-related data from a national crash study, it said. None of those analyses revealed any performance issues, the agency said.

Dallas-based Trinity said on Oct. 24 it had halted shipments pending completion of the additional crash-testing the FHWA mandated this month. Trinity has said, including in a 2013 open letter, that the lack of disclosure was an inadvertent omission in paperwork submitted to the FHWA.

“We have confidence in the ET-Plus System as designed,” Gregg Mitchell, president of one of Trinity’s highway products units, said in a statement. “It has met all tests previously requested by FHWA. We take the safety of the products we manufacture very seriously.”

At least 36 states have said they’ll stop installing the terminals. Virginia has said it will start removing them.

The FHWA, according to its website, offers financial and technical assistance to state and local governments to ensure that America’s highways are among the world’s most technologically sound. While states are responsible for ensuring their roadside hardware meets safety standards, most look to the FHWA to certify such gear by vetting crash-test data compiled by accredited laboratories. The federal government reimburses states for some of their spending on highway safety systems, but only on those certified to be crash-worthy.

The agency doesn’t regulate manufacturers of highway equipment and doesn’t have the power to require makers to recall faulty devices. The FHWA can, however, revoke or modify a certification, a move that could encourage states to switch to a different company’s product.

The government deemed versions of the ET-Plus system eligible for federal reimbursement in 2000 and again in 2005 and 2010, according to FHWA letters.

Trinity made several changes to the device from 2002 to 2005 without informing the agency, alleges Harman, the plaintiff in the Texas whistle-blower suit.

Harman, whose Virginia companies used to make and install guardrail equipment, was defending himself in late 2011 against a patent-infringement suit brought by Trinity, he has said, when he discovered that Trinity had changed the ET-Plus’s dimensions. He alerted the FHWA’s Artimovich to the change in January 2012, he said.

Seven months later, late on an August night, Texan Aaron Rausche was driving home after coaching his nephew’s little league team and attending a charity event. Rausche said he nodded off at the wheel. When he awoke, he said, he was bleeding, with one of his legs broken and the other shattered by a length of guardrail piercing through his door.

Rausche, now 37, sued Trinity in August, alleging that he hit a malfunctioning ET-Plus that “acted as a spear and impaled the vehicle and its occupant.”

His suit is among at least 18 that have been filed against Trinity since 2005, alleging that defective terminals are to blame for at least 14 injuries and eight deaths. Ten were filed this year alone. More than a dozen of the suits are pending.

“We take any lawsuit against us seriously and will respond in the appropriate manner,” Trinity said in an emailed response to inquiries about the personal-injury suits.

After Harman shared his findings with the FHWA in January 2012, Artimovich told Trinity about them. Artimovich later forwarded Trinity a presentation Harman had put together, according to one of the emails reviewed by Bloomberg News, which include Trinity-related conversations among FHWA officials as well as with people outside the agency.

“I think it provides some pretty good documentation that there are extruder heads out there that do not conform to the crash-tested designs. Let me know what you think,” Artimovich wrote to Brian Smith, Trinity’s vice president of international sales, in a Feb. 2, 2012, email.

Trinity declined to make Smith available for comment.

Trinity officials met with Artimovich on Feb. 14 during a highway-safety industry conference in Florida, according to the emails. At the meeting, Trinity employees told Washington-based Artimovich that they hadn’t previously informed the agency of a 2005 change to the ET-Plus and that the revised version had been properly crash tested, Trinity and the FHWA have said.

In March 2012, Artimovich received an email from Dean Sicking, who helped develop a predecessor to the ET-Plus as well as competing products. Sicking forwarded a law firm’s press release about a suit it was bringing against Trinity over the device. “Is the claim about making changes without testing or gaining FHWA acceptance true?” wrote Sicking, who is now an engineering professor at the University of Alabama at Birmingham.

Artimovich responded that he had seen additional crash tests of the modified version “that performed as expected.” He added: “However it’s hard to ignore the fatal results.”

“He expressed what I thought he should express,” Sicking said in a phone interview. “I took that to mean they were going to look into it.”

Also in March 2012, personal-injury lawyer Ted Leopold emailed Artimovich, asking him about the alterations. “I just hope and trust that despite some calling you an ‘industry guy’ that that is not true and you will fully and completely investigate this very important and life threatening issue,” Leopold wrote.

Artimovich’s response — that he serves both industry and the public but that profit doesn’t trump human life — was “vague at best,” Leopold said in an interview.

Over the next year, officials from at least six more states contacted Artimovich about the design change, according to the emails. Most said they had heard about it from Harman, who said he was contacting state transportation officials to pressure them to act.

“I’m leery of this product. What am I to do? How do I advise my state on the use of this product? Should I put a moratorium on new installations?” Monique Burns, a Connecticut transportation engineer, wrote to Artimovich in March 2012. “How is a user agency expected to make good informed decisions about these systems if not all changes are reported?”

Burns confirmed the email exchange.

“These are questions we are looking into also,” Artimovich responded to Burns. “Trinity is actually one of the better manufacturers in trying to document changes via letter or at least through email correspondence.”

Later, Artimovich alerted Trinity to a potential legal challenge.

Late on Dec. 17, 2012, Tom Klement, an independent road engineer, sent Artimovich an email noting a possible “unauthorized change by Trinity” to the guardrails’ support posts. Klement declined to comment on the email.

The next morning before 8:30, Artimovich forwarded that message to a longtime Trinity consultant: “You might send Mr. Klement’s note below to Trinity’s lawyers,” he wrote.

It’s not clear whether Artimovich had sent the note to others first. Alerting the manufacturer’s lawyers, rather than its engineers and federal highway officials, sounds inappropriate and could raise the prospect of a collusive relationship, said Joan Claybrook, a public safety advocate and former NHTSA administrator.

“If the government gets information, they’re not supposed to give it to suppliers so they can protect themselves in court,” Claybrook said. “They may need to use that” in their own investigations, she said.

Around that time, a second FHWA official, Atlanta-based Frank Julian, was raising questions. Julian put Harman in touch with a New Hampshire transportation official, who in turn e- mailed his concerns about the ET-Plus to Artimovich.

“I am not sure if I want to wait until the court case is decided and all the appeals have been completed to take action,” wrote Keith Cota, the New Hampshire official, who confirmed the email exchange in an interview.

Artimovich’s response to Cota matched those to several state highway officials: The FHWA’s position was that the changed version was crash-tested in 2005 and remained eligible for federal reimbursement.

“FHWA has received no complaints from the states over the past seven years during which the terminal has been used nationwide,” according to an email Artimovich sent to an FHWA colleague in North Carolina in February 2013.

That same month, Julian received an email from a safety specialist in Kentucky, who pointed out a recently published investigative article on the website Consortium News laying out Harman’s allegations. “Thought it would interest you since it appears to be about the ET-Plus,” the specialist wrote.

“It does not matter how we got here, the important thing is we need to assess the performance and decide if this thing is a problem,” Julian responded. Until 2012, Julian noted, “nobody in the field realized this was not the approved design being installed.”

He added: “It seems nobody is looking and everybody is on autopilot.”

Julian declined to comment on the emails.

Julian forwarded the article to Artimovich.

“FYI It continues,” Julian wrote to him. “Next few meetings should be fun.”

Rausche, who has titanium rods in both legs after several surgeries, said his 2012 accident left him grateful to be alive. “I was just trying to focus on how lucky I was and how much worse it could have been,” he said.

Months later, he said, his father told him he’d seen something on the news about allegedly defective end terminals. In August, Rausche sued Trinity.

“You go to the whole other end of the spectrum a year later, that it shouldn’t have been that bad,” he added. “You just want no one else to have to go through this.”