Canadian Class Action Settlement of Roadside Barrier Controversy Has Done Absolutely Nothing For Innocent Victims

Gorski Consulting has monitored the developments relating to the controversy surrounding the ET-Plus guardrail terminal manufactured by Trinity Highway Products of Dallas Texas since the summer of 2014. At the time we became aware of allegations that the ET-Plus could be defective and dangerous we began conducting surveys of the installations in Southern Ontario and subsequently we examined a number of ET-Plus terminals that were damaged from vehicle impacts. All this has been reported in a number of articles that have been uploaded to this website.

As the saying goes, we have no horse in this race. It is of no particular interest to us whether anyone is found at fault for anything. The closest we came to placing our boots on one side of the fence or the other is that we were contacted by McKenzie Lake, which instigated the Canadian class action law suit against Trinity, and we were asked to document the dimensions of several ET-Plus terminals in the Stratford, Ontario area. We were also contacted by Global News in Toronto where a TV segment was prepared to be aired on their “16X9” documentary series that focused on the ET-Plus. In fact the footage that Global news shot during our meeting and field exercise was never aired on their program: another lost moment of fame, if one cared about that. The point is that we have treated this controversy no differently than any other allegation, civil suit or criminal matter: we simply told the truth based on observable fact.

Our field studies demonstrated that, regardless of whether  there were some secret alterations to the design of the ET-Plus that were not revealed by Trinity to the U.S. Federal Highway Administration, there were some results in the in-service functioning of the system that raised our concerns. The ET-Plus was not functioning in the manner in which it was shown to function in controlled testing. In a large number of instances, upon impact, the rear end of the ET-Plus terminal was deforming the top of the guardrail before the rail had a chance to reach the throat of the terminal and this prevented the rail from passing through the terminal as demonstrated in the controlled testing. In fact we do not know if this was the mechanism that caused the result, it is just a suspicion, and other factors could also be at play. But whatever factors were at play the bottom line is that the terminal was not functioning as it was claimed to function.

Sure enough, other products that exist on the roadside might also not function in the manner they are illuminated to perform in controlled testing. Who knows? Certainly we do not have the resources to study all of the roadside structures and this is a major point. No one knows, and no one is in a position to know, except those specific entities with deep pockets who have the resources to know. Trinity Highway Products has the deep pockets to know however they are not the only ones. The U.S. Federal Highway Administration (FHWA) should have infinitely deep pockets because, like any government agency, they simply reach their hands into everyone’s pockets, regardless of whether those pockets are deep. So did the FHWA administration know what they were required to know?

It has been indicated that a jury’s verdict in favour of Mr. Joshua Harmon, and against Trinity, was overturned by a higher U.S. court citing the fact that the FHWA had “approved” the installation of the ET-Plus on U.S. highways. Thus because of this tacit approval blame could not be placed on Trinity. In our view this reasoning should be of grave concern. It was the FHWA which failed to conduct proper evaluations, including in-service documentations of the ET-Plus, which led to the uncertainty about this structure’s adequate performance. Not until many years later, after Mr. Harmon had commenced his legal actions, did FHWA begin to search for performance data from other entities – data that they should have had if they were the agency responsible for determining which roadside structures would be safely installed on U.S. highways. Even upon request of that data it was clear to us that this data was insufficient and thus this led to a selected group of experts to claim that there was no indication that the ET-Plus was any more dangerous than any other roadside structure.

This is a common fact about data and research. Many official agencies sponsor research not to uncover a specific problem, but rather to create confusing data that, upon analysis, reveals that nothing can be concluded. It is a true tragedy when these actions result in the needless loss of innocent lives.

What remains is that perhaps thousands of installations of ET-Plus terminals remain on North American highways without any proper determination whether they will needlessly injure and influence the death of future road users. If those installations are, in fact, no less dangerous than any others then Trinity has also suffered because there has been an obvious decrease in the number of installations of ET-Plus terminals throughout most jurisdictions. Was this done because of the legal issues? Was it done because those jurisdictions found out that there were safety problems but decided not to reveal them for fear of being sued? No one will know.

In the end this does nothing to provide a proper justice to those road users who have sustained major injuries or to the families and friends of those who have lost their lives. The need, that should be obvious to everyone, is that a proper documentation of instances involving impacts of ET-Plus terminals must be conducted and made public and that has not occurred.