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Controversial highway guardrails must face additional testing

Trinity industries indicated it will appeal multi-million dollar verdict

ORLANDO, Fla. – The federal government has ordered a highway guardrail manufacturer accused of selling guardrails that can fail and pierce cars like spears to submit a plan for additional testing by Friday.

The move comes in the wake of a landmark jury verdict last week, which found Trinity Industries defrauded the federal government after it failed to disclose design changes in its guardrail end terminal known as the ET-Plus.

[WEB EXTRA: Lawmaker calls on FDOT to investigate | FDOT issues statement ]

"We think the evidence that the jury has already seen is very clear that it's not a safe product," said Karen Dyer, an attorney representing Joshua Harman, the whistleblower who filed the lawsuit and exposed the secret guardrail dimension changes, including shrinking the width from 5 to 4 inches.

"These things are a death trap. I've said that from the get go and I'll continue saying it," Harman said, while referencing several crashes that resulted in a victim losing a leg.

Harman says the modified version is failing when a vehicle crashes into it because the changed dimensions can't handle the impact. The terminal locks up and forms a spear that can slice right through a vehicle, he said.

It happened to one Seminole County family driving through Virginia. The family members believe they're very fortunate they all survived. 

"Once I realized once the guardrail had done, instead of what it was supposed to do -- I mean we were horrified," said Luke Robinson, whose young son was injured in the crash.

Rather than point the guardrail toward the vehicle, the guardrail system is supposed to feed the guardrail away from the vehicle and safely bring the vehicle to a stop.

Harman, a competitor who discovered the changes in an unrelated patent case Trinity brought against him, alleges Trinity secretly made the changes to save money. An internal memo written by a Trinity employee seems to back the cover-up theory.

"I'm feeling we could make this change with no announcement," read the internal email that came to light at trial. It went on to say Trinity could save about a quarter million dollars over five years.

Now Trinity is on the hook for at least a half billion dollars in damages.

The company has defended the product and told Local 6 in a statement that "Trinity believes the decision cannot and will not withstand legal scrutiny," indicating an appeal is imminent.

Dyer said even if her team never recovers a dime from the situation, what's important is the trial has begun a discussion about the safety of the product.

"They need to do the right thing and they need to make sure that the product that they're putting out there is safe and they haven't done that to date," Dyer said. 

On Friday, Trinity said it would stop selling the product, which 13 states have banned, until additional testing is completed, according to the New York Times. 

Florida is not among the states that banned the product, prompting concern from state Rep. Irv Slosberg, D-Delray Beach, a veteran member of Florida's Transportation & Highway Safety Subcommittee, who called for a formal investigation into the product.

"It is simply outrageous that the Florida DOT continues to overlook the obvious safety concerns associated with the products of Trinity Industries," Slosberg said in a press release last week. The statement suggested FDOT join other states in banning the product. 

In response, FDOT Secretary Ananth Prasad told Slosberg that "FDOT continues to monitor any new information regarding the Trinity ET-PLUS product and will take appropriate action when necessary to preserve the safety of the transportation system."

In a formal statement to Local 6, FDOT pointed out how the Federal Highway Administration has a process for imposing sanctions to address conduct by product manufacturers who violate federal regulations and the standards for approval of products for use on federal highways. 

"The state of Florida adopts the federal sanctions on state projects. Safety is our top priority at the Florida Department of Transportation. At the present time, the department has not been made aware of any product failure from Trinity products used on highways in the state of Florida," the FDOT statement read.