October 3, 2017 by Colin Perkel - THE CANADIAN PRESS
TORONTO – A proposed Canadian class action over a highway safety guardrail is going ahead even though an American Appeal Court has found no evidence the manufacturer made secret cost-saving design changes the plaintiffs allege turn the barriers into potentially lethal spears.
Lawyer Matthew Baer said he had not read the U.S. decision, but said a hearing on whether the $500-million lawsuit he filed on behalf of the town of Stratford, Ont., against Trinity Industries will be certified as a class action is likely to be heard in February.
“My understanding of that (American) lawsuit…was that it only had to do with Trinity’s modifications not having been disclosed,” Baer said. “This (Canadian) case is with respect to the alleged increased safety risks of using the modified units.”
At issue is Trinity’s ET Plus — the end unit of the guardrail — which is supposed to absorb impact and guide the rail so a crashing vehicle doesn’t slam into the rigid steel end. The system has been installed on highways across the U.S. and Canada.
Last week, a U.S. Appeal Court in New Orleans overturned a US$663-million judgment against the company that a Texas jury had awarded to Joshua Harman, a self-styled whistleblower and failed Trinity competitor.
Harman alleged Trinity, which operates primarily out of Dallas, Texas, had cheated the U.S. government by withholding crucial safety information. He insisted a revised faulty design was to blame for 200 deaths and injuries in the U.S.
The original jury finding in his favour prompted dozens of states and some provinces to stop installing the ET Plus. It also prompted American highway authorities to order new tests, which found no issues with the rails.
In a strongly worded decision, the court found the jury’s liability finding could not stand because the U.S. government, aware for years of Harman’s allegations, had nevertheless rejected them and had continued to pay for installation of the guardrails.
“The government has never been persuaded that it has been defrauded,” the Appeal Court ruled. “It so advised Harman after his repeated meetings disclosing the changes in the product he says were wreaking havoc on America’s highways.”
Harman did not immediately respond to a request for comment on Tuesday, but a Trinity spokesman minced no words about the unanimous ruling by the U.S. Court of Appeals for the Fifth Circuit.
“There was no fraud. Plain and simple,” said Jeff Eller. “There never should have been a trial in the first place.”
The Canadian lawsuit, filed in Ontario Superior Court on behalf of all affected jurisdictions in Canada, also alleges Trinity Industries secretly made unauthorized changes to the ET Plus 12 years ago and failed to warn anyone about ‘serious failures” it knew about.
“Rather than absorbing the crash energy as originally intended, designed and tested, the guardrail becomes a rigid spear that impales the vehicle and its occupants, often severing limbs,” the suit alleges.
Trinity has always denied any issues with its product or any problems with the information supplied to highway authorities … beyond “inadvertently” failing to disclose one design drawing.
Eller noted — as did the Appeal Court — that people do get hurt when cars slam into guardrails, and that no roadside barrier can be completely effective in all situations but that does not make them defective.
“At best, these roadside barriers can only mitigate — they cannot erase the risks attending all unintended exits nor can they assure safety at all speeds, angles, and weights,” the Appeal Court said. “There have always been deadly accidents involving roadside barriers — an unfortunate reality of our automobile-centric culture.”