Trinity Industries Ordered to Mediation After Trial Loss

Trinity Industries Inc., which last week lost a $175 million verdict for hiding from regulators changes to its highway guardrails, was ordered by a judge to enter into mediation with the whistle-blower who brought the case.

Lawyers for Trinity and whistle-blower Joshua Harman were told by U.S. District Judge Rodney Gilstrap in Marshall, Texas, to mediate the lawsuit before the end of the year, according to a court filing today. Gilstrap has yet to decide on penalties to impose on Trinity, which a company lawyer has said could reach $1 billion.

“We intend to follow the court instructions and attend mediation,” the Dallas-based company said in an e-mailed statement. “Trinity continues to believe that the jury decision cannot and will not withstand legal scrutiny.”

The lawsuit, brought by Harman on behalf of the U.S. government, alleged that Trinity made secret changes to its ET-Plus guardrail system, transforming the devices into spears that could impale cars upon impact. The end terminal is mounted on the tip of a guardrail to absorb the impact of a crashing car.

Judges often require litigants to mediate disputes before a final judgment is entered, said Nicholas Gravante, a lawyer at Boies Schiller & Flexner LLP who represented Harman at the trial.

Guardrail Recall?

Along with damages, the mediation may also focus on whether there should be a recall of the ET-Plus, unless the U.S. government initiates one on its own, Gravante said.

“We have to work together to make sure appropriate steps will be taken to make the nation’s roads and highways safe,” he said in an interview today. “The federal government is going to have to have a seat at the table, too.”

Francis McGovern, a Duke University law professor, will serve as mediator, Gilstrap said.

At least 10 lawsuits have been filed against Trinity this year, claiming the device caused three deaths and nine injuries. Jurors in last week’s trial didn’t rule on whether the ET-Plus is defective.

The case is Harman on behalf of the U.S. v. Trinity Industries Inc., 12-cv-00089, U.S. District Court, Eastern District of Texas (Marshall).

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