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Most of us probably take the guardrails by our highways for granted, but Virginia lawmakers are now saying that fraud and deception could have turned them into serious safety risks. In a letter to Trinity Industries (the maker of the endcaps on many of Virginia’s guardrails), the Virginia Department of Transportation accused the company of changing the product’s design without disclosing that fact to the states that the endcaps were sold to. As a result, the endcaps fail to slide along and redirect guardrails in the event of a collision, and instead allow the metal rails to impale cars.
The letter referenced Trinity Industry’s duplicity in allowing states to install products different than those that had undergone safety testing. The company has been convicted of fraud for failing to disclose the endcap’s changing dimensions. Even before the company’s conviction, a number of states, including Virginia, issued a moratorium on installation of new endcaps. Now Virginia’s letter threatens a ban and possible recall if Trinity fails to provide proof of the endcap’s safety.
The company has chosen to stand behind the safety of its product, referencing a federal government finding from earlier this year that concluded the endcaps were safe. The company claims “no reliable data indicating that the ET-Plus end terminals are not performing as they were intended to perform.” Since that time they have come under increasing scrutiny as deaths and serious injuries continue to accumulate from guardrails speared right through cars. In September, a study conducted by the University of Alabama at Birmingham concluded that the new rail was more than three times as likely as the old to cause a fatality.
Virginia has installed more than 11,000 endcaps on its roads since the design was first changed in 2005. Faced with mounting evidence of an unsafe situation, lawmakers could no longer wait for federal action. Ms. Herman of the Virginia Transportation division spoke critically of federal standards, saying “even if a product may be on the federal approved list, that doesn’t mean we’d want it on ours.” If the guardrails cannot be proven to be safe, the state is prepared to strip the product from its list of approved equipment, seek out and uninstall all Trinity endcaps in the Commonwealth, and go after the company in court.
Their lawsuit would only be the latest surrounding the beleaguered company as accident victims already seek to lay five deaths and uncounted injuries at its door. This is almost a textbook case of corporate wrongdoing, provoking a well-deserved severe response from a state government that feels it has been manipulated and deceived into compromising public safety.
About The Author: Jason Konvicka is a personal injury and medical malpractice laywer with the Allen Law Firm in Richmond, Virginia. His work has resulted in a series of impressive verdicts and settlements for his clients in personal injury, wrongful death, and traumatic brain injury cases. Jason has successfully argued before the Virginia Supreme Court and the Fourth Circuit Court of Appeals.
 https://www.nytimes.com/2014/10/15/business/virginia-threatens-to-remove-guardrails-unless-manufacturer-performs-new tests.html?_r=0&gwh=7159A10223A97391EE0F7F6CF5C55AF9&gwt=pay&assetType=nyt_now#story-continues-2
 See Footnote 2.