Local 6 investigates guardrail safety

Gov. Scott's legal staff involved in ongoing state investigation

By Sean Lavin - Producer

ORLANDO, Fla. - Luke Robinson will never look at a guardrail the same way again.

[WATCH: Gov. Rick Scott discusses safety | WEB EXTRA:  In-depth look at guardrails  | Map of Central Florida locations ]

"I drive by them nowadays, hoping and praying that it's one that works," said Robinson, a Seminole County father of three.

When Robinson's family crashed head-on into a guardrail back in 2012, the guardrail failed -- the rail impaled the vehicle, caused the car to flip, and pinned his son to the roof, according to a lawsuit filed by the family's mother, Brittany Robinson.

"As horrible as ours was, we were the lucky ones," Luke Robinson said. "We still have each other. We can still run and play and laugh and live."

The Robinsons hit the guardrail in Virginia, halfway on their trip from Florida to New York. But the type of guardrail they claim has a potentially fatal flaw is all over Orlando -- including near Disney and OIA -- and across the country.

The part of the guardrail they claim is flawed is the end terminal, called the ET-Plus. It's made by Trinity Industries and is at the center of a federal whistleblower case after the company changed design dimensions without first telling the federal government or Florida's Department of Transportation.

One change made was a reduction in width from 5 inches to 4 inches. It was exposed by Joshua Harman, who filed a federal whistleblower lawsuit against Trinity and has documented dozens of crashes like the Robinsons'.

Harman says the smaller dimensions throughout the modified version of the ET-Plus cause the terminal to lock up and form a spear, often impaling the people inside a vehicle and causing victims to lose limbs after a crash. He said the original model worked as intended, causing the guardrail to move away from the vehicle.

"The 4-inch model is the death trap," said Harman, who calls the original 5-inch model a "work of art." Harman alleges Trinity secretly reduced the size to increase profits. Trinity calls Harman's allegations "false and misleading."

Local 6 has learned from public records released by FDOT that Harman also filed a state whistleblower lawsuit against Trinity on behalf of the State of Florida.

Florida Gov. Rick Scott's legal staff has been involved in the ongoing state investigation into the whistleblower lawsuit as recently as late May, according to a timeline released among the FDOT public records.

Other records released show FDOT product evaluator Paul Gentry expressed "a major safety concern with the ET-Plus system," in a September 2013 email to Trinity regarding consideration of another Trinity product for approval on Florida's Quality Product List.

An FDOT spokesman would not directly answer the question of whether Gentry's safety concerns were alleviated, and instead responded by attaching a June 2014 Federal Highway Administration memo which states the ET-Plus "continues to be eligible for federal-aid reimbursement."

The FHWA memo also confirms the federal agency was not told of the 2005 design change by Trinity and that on Feb. 14, 2012 Trinity told the agency the change "was a design detail inadvertently omitted."

After the 2005 change was made, Trinity sent a required recertification notarized letter to FDOT in January 2007 suggesting there were "no major 'design changes'" of its product.

Trinity did not report the changes to FDOT at the time because "they did not consider it a major change," according to a letter FDOT Assistant Secretary Brian Blanchard sent state Rep. Irv Slosberg, in response to his questions over the controversy.

Trinity has aggressively defended its product and vows to continue doing so, including during the ongoing whistleblower litigation.

"Trinity has a high degree of confidence in the performance and integrity of the ET-Plus® System, which we are proud to manufacture and sell under license from Texas A&M University," Trinity said in a statement. "The false and misleading allegations being made by Mr. Harman were reviewed by the Federal Highway Administration (FHWA).¬† The FHWA re-affirmed its acceptance of the ET-Plus® System in October 2012 and its eligibility for use on the National Highway System."

Trinity failed to convince a federal judge in Texas to throw out the federal whistleblower case on Monday. The case is set to go to trial early next week.

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