ORLANDO, Fla. – Guardrail systems blamed for malfunctioning and slicing off the legs of crash victims are undergoing new testing, but the man who exposed the controversy is questioning the effectiveness of the tests and whether the product linked to deadly accidents is truly the one being tested.
"This is the cover up," said Joshua Harman, who won a federal whistleblower lawsuit against his competitor, Trinity Industries, after uncovering that the company made a secret design change to its ET-Plus guardrail system end terminal.
The December and January tests in San Antonio are one step in a process to determine the future of the ET-Plus terminal on U.S. roads, according to the Federal Highway Safety Administration. Trinity insists its product is safe. The terminal is banned from being installed in most states, including Florida, while the testing continues.
"It looked liked it passed and moved exactly as you'd expect it to," FHWA associate administrator for safety, Tony Furst, said following the first of eight tests.
He said the second test was also unremarkable.
But Harman and his attorneys said they are concerned about the effectiveness of the ongoing tests; in part because half of the guardrails being tested have larger dimensions in a critical area known as the exit gap than what Trinity previously testified was being manufactured, according to measurements of the test units provided by the federal government.
The media was banned from measuring the test units independently.
"We've asked to go along with experts when they measure them and we haven't been able to do that," said Jace Larson, one of the only two permitted media observers present during testing, and an investigative reporter at KPRC, Local 6's sister station in Houston.
When a vehicle hits the ET-Plus guardrail end terminal it's designed to push the steel out of the side and away from the vehicle like a ribbon, absorbing energy and bringing the vehicle to a stop while preventing the metal from entering the vehicle.
But Harman points to situations where the steel jams up, stops moving away from the vehicle, and instead forms a spear that pierces the vehicle and can cost life and limb.
Harman said he believes part of the problem can be equated to trying to fit a square peg in a round hole.
"Each one of those splices have eight splice bolts," Harman told Local 6, while pointing to the area where one piece of the steel is joined to the next. "Each splice bolt is an inch and a half length overall. They will not go through a 1 inch exit gate."
Trinity Vice President Brian Smith, in a 2012 sworn statement, said, "Throughout its product lifecycle, the ET-Plus has been designed and manufactured with an exit gap having a manufacturing variance of 1 to 1.15 inches."
But four of the eight units undergoing the new testing have an exit gap, or gate, larger than that .15 inch variance -- measuring 1.25 inches.
"These terminals are a different model," Harman said. "Another secretly changed model."
Trinity spokesman Jeff Eller denied that there are multiple versions of the ET-Plus extruder head.
"There is a 1-inch design minimum required for the exit gap of the ET-Plus (R) System. That has never changed," Eller said. "All the heads being tested have the 1-inch minimum. Designers at TTI say it is acceptable for the exit gap to be larger than 1 inch. Trinity is confident the ET Plus(R) System will perform as designed with an exit gap manufactured at 1 inch or larger."
Local 6 obtained a copy of the Florida Department of Transportation's inventory of the ET-Plus guardrails, which was conducted at the request of the FHWA. FDOT counted 1,678 of the controversial modified ET-Plus model, with the 4-inch guide channel, with nearly 200 in Central Florida alone.
FDOT released a statement saying it "fully supports" FHWA's ongoing tests, but FDOT did not respond to requests for comment regarding whether the department had any concerns with the evidence indicating that the new tests being conducted may not reflect what's on Florida roads.
FDOT's inventory did not produce information to reveal how many of the ET-Plus terminals in the state have exit gaps that match the maximum size being used in the ongoing tests.
"I'm told that our maintenance crews did not measure exit gaps," said Dick Kane, FDOT's communications director.
Florida was among the last of the states to temporarily ban the installation of the ET-Plus guardrail terminals and has announced no plans to remove them, unlike Virginia, which has started the bidding process to have them removed.
FDOT's comparatively slow response in banning the product had been previously criticized by state Rep. Irv Slosberg, D-Delray Beach, a veteran member of Florida's Transportation and Highway Safety subcommittee, who called for a formal investigation into the product.
"It is simply outrageous that FDOT continues to overlook the obvious safety concerns associated with the products of Trinity Industries," Slosberg said
Harman is calling for a nationwide recall and is convinced everyone who drives is in danger until that happens.
"If someone hits the head, impacts that head, it's a roll of the dice how it's going to react," Harman said.