State halts use of highway guardrail after deaths and $100 million lawsuit

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SEATTLE — The crashes have been horrific.

People have been killed, others suffered life-changing injuries after colliding with highway guardrails that were supposed to save their lives.

“I’ve got widows who have lost husbands. I`ve got mothers who have had their children butchered. I`ve got a Marine that cut both his legs off. It`s unacceptable,” whistle-blower Joshua Harman said.

In a number of crashes across the country, the guardrails didn`t work as they should. Instead, they sliced through cars, and impaled or maimed drivers and passengers.

It is very possible the problem might have gone unnoticed had it not been for Harman, the plaintiff in a federal whistle-blower lawsuit.

Harman's suit targeted Dallas-based Trinity industries and the company`s `ET-Plus` guardrail with a four-inch head.

A Q13 Fox News investigation found the potentially dangerous ET-Plus rails along our interstates and roadways.

Here`s how the rails are supposed to work: in the event of a head-on collision with the terminal head, the energy from the car forces the w-shaped guardrail to ribbon, or flatten out, as it is forced through the terminal head, leaving it virtually harmless like a piece of sheet metal.

Harman accused Trinity of changing the design of its ET-Plus terminal head -- making it potentially dangerous.

He claimed Trinity reduced the terminal head from five inches to four -- a potentially deadly change.

Harman alleged Trinity made the change without necessary government approval.

"They are responsible for this. It was slipped in. It was secretly put out there. Us, as taxpayers, or the federal government was defrauded,” Harman said.

Last month, Harman`s lawsuit went to trial in Texas and a jury agreed with Harman that Trinity defrauded the federal government.

The jury awarded $175 million; a judgment that is automatically tripled under the whistle-blower statute.

"It`s disturbing that us as a nation with all the checks and balances that they got away with this but the justice system has sounded. They have been convicted of fraud and we`ll see what happens,” Harman said.

In the past, Trinity has insisted the ET-Plus is safe.

After the judgment Trinity released a statement saying in part;

"The company respects the jury's decision. However, Trinity believes the decision cannot and will not withstand legal scrutiny. The company strongly believes the courts will affirm its position."

By law, Harman is entitled to a portion of the judgment, usually between 15 and 25 percent.

But he says it`s not about the money and there`s no time to rest.

"There are 600,000 still on the roads today. I mean, to this moment, you are exposed driving down the road,” Harman said.

In spite of the judgment, Harman is back on the road.

His goal now -- a full and complete product recall of Trinity`s ET-Plus end terminal with the 4-inch head.

"This product recall has to happen. Why? People are dying, literally, every day and if something isn`t done, there will be more. I don`t want to see any more victims. Most all the victims I dealt with want the same thing. They don`t want no one else to go through what they have to go through,” Harman said.

After our investigation, and the Texas jury verdict, Washington state has now put the brakes on the ET-Plus, issuing a moratorium.

"If there are any ET terminals that get damaged, that they would be replaced with an alternative product, that we will no longer spec that end terminal in our current contracts or in our future design," Washington State Department of Transportation spokeswoman Linea Laird said.

Thirty-two states have already issued moratoriums or banned the ET-Plus with the 4-inch head all together.

“Safety is our number one priority and so we do believe we`re taking all appropriate actions to safeguard the public,” Laird said.

And the federal government has ordered new testing of the ET-Plus. Trinity announced it would stop the manufacture and distribution of the end terminal until new testing is complete.

Harman says the case has never been about money.

He hopes to use the recent verdict as leverage to get an all-out recall of the ET-Plus.

“I will not negotiate a settlement, a monetary value, without the product recall being part of it. I believe with all my heart, like I`ve told you before, that these things are failing. They`re killing people and things have got to happen,” Harman said.

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