Whistle-Blower Says $1 Billion Isn’t Enough in Guardrail Lawsuit

By 4:30 a.m. on Monday, Joshua Harman was awake and reviewing documents before the last day of trial in his whistle-blower case against Trinity Industries, one of the biggest makers of guardrails in the U.S. Less than 12 hours later, a federal jury issued its verdict: Trinity cheated the federal government of $175 million by selling a secretly modified guardrail product for use on U.S. highways.

The verdict vindicated Harman, who’s spent more than two years trying to convince the public that Trinity’s modified ET-Plus end terminal—which is a steel mechanism mounted onto the end of a guardrail to absorb the impact of a crash—was impaling cars instead of slowing them down safely. Trinity has sued him twice for defaming its product, and the company insists he’s a money-hungry “professional plaintiff” putting forward “baseless allegations.”

“The main thing I’ve been concerned about is to have that credibility to where I can get people to listen and look,” Harman says. “Everybody realizes it’s no longer just Josh Harman. It’s a federal judge and a jury.”

The jury’s $175 million award will be tripled, and the judge will also add penalty fines. Company lawyers have said total liability for the company could reach $1 billion. Trinity says it plans to appeal the verdict. Throughout the litigation, the company has said it maintains “a high degree of confidence” in the several hundred thousand ET-Plus units it says are installed across the country.

Four states have already banned new installations of the product, pending current investigations. Virginia set a deadline of Oct. 24 for Trinity to crash-test the modified ET-Plus in the presence of state authorities so they can determine if it’s safe for use on state roadways.

The jury in Harman’s whistle-blower case wasn’t asked to rule on whether the modified ET-Plus is defective. That question will be taken up by the jurors who decide the outcome of more than a dozen pending injury and wrongful-death lawsuits that allege problems with Trinity’s product.

The ET-Plus is still approved for use on U.S. highways by the Federal Highway Administration. The agency said it would consider whether the jury verdict “affects the continued eligibility of the ET-Plus.” Democratic Senator Richard Blumenthal of Connecticut sent the agency a letter on Tuesday expressing concern that it “failed to protect against potentially fatal defects in this product.”

By evening, Harman was back on the road, driving to his next media engagement to spread the word about what he says is a potentially lethal Trinity product. “I won’t rest until I get a total product recall,” he said outside the courthouse, soon after the jury announced the verdict. “This is just a step.”

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