Virginia Joins Whistle-Blower Suit Against Guardrail Firm

Virginia joined a whistle-blower lawsuit against Trinity Industries Inc. over an allegedly defective guardrail system, becoming the first state to say it will seek to claw back money spent on the company’s roadside safety hardware.

Trinity sold the state thousands of unapproved and potentially dangerous pieces of highway guardrail equipment, according to the complaint unsealed in state court in Richmond.

The suit is at least the fourth whistle-blower complaint against Trinity following a series of accidents across the U.S. in which drivers or their families have alleged that the company’s products didn’t work properly. Virginia is among at least 42 states -- and the District of Columbia -- that have stopped installing Trinity’s ET-Plus guardrail end terminals.

Plaintiffs in more than a dozen personal-injury and wrongful-death suits allege some ET-Plus units have malfunctioned, impaling vehicles rather than absorbing the shock of impact as intended.

Collectively, the suits allege a link between Trinity’s product and at least eight deaths. Trinity has denied that the ET-Plus has a deadly flaw and a company spokesman today said “Trinity did not commit fraud” against Virginia.

‘Deeply Disappointed’

The company is “surprised and deeply disappointed” that the state “chose the lawsuit path,” spokesman Jeff Eller said in an e-mailed statement. “We have given them all the data they requested. We will continue to work with them. We will defend ourselves fully against these allegations.”

Virginia seeks to force Trinity to pay for the replacement of defective guardrail parts installed on public roads, plus additional damages. Trinity has come under scrutiny after modifying its ET-Plus in 2005 without telling federal transportation officials.

“It is shocking that a company would think they could secretly modify a safety device in a way that may actually pose a threat” to motorists, Virginia Attorney General Mark Herring said today in a statement.

The complaint was originally filed by Joshua Harman, whose company competes with Trinity.

Harman also filed a federal whistle-blower suit in Marshall, Texas. A jury there found in October that Dallas-based Trinity’s false claims duped U.S. taxpayers into paying $175 million for guardrail equipment. Trinity faces more than a half billion dollars in penalties.

Federal Spending

The federal lawsuit covered what the U.S. government paid to reimburse states for part of their spending on the Trinity systems.

In addition to the Virginia suit, at least two other state whistle-blower cases, in Massachusetts and Florida, have been filed against Trinity over the ET-Plus units, according to Wyatt Durrette, an attorney for Harman.

Durrette said he could confirm those cases, which were filed under seal, because their existence has been inadvertently disclosed.

The state case is Virginia ex rel v. Trinity Industries, CL13-698m, Circuit Court for the City of Richmond.

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