Whizzing along New Hampshire’s highways, most drivers probably don’t give much thought to those square black and yellow plates on the end of guardrails – called end plates. But there’s a concern that one of the models used in New Hampshire and many other states could be dangerous.
The worry is that, instead of guiding an errant vehicle away from danger as they are meant to do, the guardrail may pierce the passenger compartment and skewer its occupants.
Replacing the units could cost New Hampshire millions of dollars at a time when the the transportation department's budget is threatened with enormous cuts.
The issue is a guardrail end plate made by Trinity Industries and called the “ET Plus.” The ET Plus is used throughout the state including near mile post 78 on southbound Interstate 93 in Ashland.
Last June an Ohio couple, Cindy Martin and her fiancée Blaine Markland, were approaching it as they were winding up what was planned to be a romantic, holiday trip.
Martin, who was driving the rental car, looked down to fiddle with the radio. Markland was on his cell phone.
“The next thing I know we are spinning and I start to feel impact,” he said.
When the vehicle stopped they looked down. There was blood, torn flesh and broken bones. The guardrail had come into the passenger compartment, slicing into their legs and pinning them in the vehicle.
“The guardrail came across and pretty much devastated my right leg,” said Markland.
Markland was the most seriously injured. He had to be cut from the vehicle first and was rushed by a helicopter to a hospital.
Then, it took another 45 minutes to free Martin.
“They cut the roof off the car and still couldn't get me out because of the way the guardrail had me pinned. They had to cut the guardrail apart a piece a time,” she said.
Martin and Markland are considering suing the ET Plus’ manufacturer, said David Kwass, their lawyer.
But highway officials say they are not surprised when a guardrail causes damage to a vehicle. Guardrails are designed to protect a vehicle from a greater danger such as going over a cliff, hitting trees or rolling over. But they can cause damage.
“One of the incorrect assumptions is that guardrails are safe. Guardrails are not safe. Guardrails are a hazard,” said Keith Cota, an official with the New Hampshire Department of Transportation.
At least 30 states, including New Hampshire, Maine, Vermont and Massachusetts have stopped installing the ET Plus over concerns it is not performing properly.
Working properly means when a vehicle hits that black-and-yellow end plate the plate supposed to slide along the guardrail, allowing the guardrail to crumple, thereby slowing the vehicle.
The concern is that the ET Plus may jam. Then the rigid guardrail can become a spear and pierce the occupant compartment.
The manufacturer has denied that happens and for years the ET Plus has been approved by the Federal Highway Administration (F.H.W.A.).
Getting that approval included passing a series of crash tests in 2000.
But late last year – in a whistleblower suit - a Texas jury found the ET Plus’ manufacturer guilty of defrauding the federal government about its performance.
The jury concluded Trinity Industries significantly changed the design of the ET Plus in 2005 to save money and kept important information about its crash performance from federal regulators.
Not knowing about the change, the regulators continued to approve it. And states – like New Hampshire - continued to buy it.
But in 2012 the NH DOT’s Cota became worried about reports that the ET Plus might not be working properly.
Cota said he wasn’t aware of any problems in New Hampshire, but he heads up the Technical Committee on Roadside Safety for the American Association of State Highway and Transportation Officials.
And because of that position the man behind the Texas whistleblower suit – Joshua Harman - contacted Cota about his concerns.
On Oct. 10, 2012, Cota sent an F.H.W.A. official an e-mail. “There appears to be mounting evidence putting into question the field performance of these energy absorbing systems,” he wrote.
A day later the federal official responded. He said the federal agency had been assured by Trinity Industries it had done the proper testing and the ET Plus works properly. But Trinity had admitted it forgot to tell the agency about a key design change in 2005, he noted.
Cota told the federal agency that put his concerns “to rest” although he would ask New Hampshire’s maintenance engineers to report any problems.
For almost two years, federal regulators continued to approve the ET Plus. When questions were raised they said they had “no reliable data” to show there was anything to worry about.
But suddenly, last October, when that Texas jury found the ET Plus manufacturer guilty of fraud, resulting in a $525 million verdict, there were doubts.
“The day after that whistleblower suit we removed the ET Plus from our qualified products list,” Cota said. That meant the state would no longer installing them. It has other models that have federal approval.
With that guilty verdict federal regulators were facing unavoidable questions about the safety of the ET Plus. They began investigating, including requiring a new series of crash tests to be conducted by Trinity in Texas with federal regulators observing.
But those tests immediately came under criticism from officials, including Sen. Richard Blumenthal of Connecticut and Sen. Charles Schumer of New York. They complained to the F.H.W.A. that the tests were not severe enough, don’t reflect real-world crashes and the federal agency isn’t being tough enough.
“We find it difficult to maintain confidence that your agency is taking proper action to ensure that the device meets the highest safety standards,” Blumenthal and Schumer wrote.
Another critic was Dean Sicking, a professor of engineering at the University of Alabama at Birmingham. In 2005 Sicking was honored by President George W. Bush with the National Medal of Technology for his work in “technologies that safely dissipate the energy of high-speed crashes.”
“There’s going to be very little benefit out of this test procedure,” Sicking said.
Sicking testified in the Texas trial and noted that he owns “portions of patents” on several competitors to the ET Plus. So, he could benefit if the ET Plus lost its approval rating.
But he says his overriding concern is highway safety and he asserts that federal regulators don’t want to find a problem.
“My concern is that they are trying to avoid the embarrassing situation where they have approved a product that has been on the road for nine years,” he said. “They would like to say this product is safe. There is not an issue here.”
Sicking says the agency should be taking an in-depth careful look at real-world crashes throughout the United States.
The agency has said it is taking a thoughtful and comprehensive approach to evaluating the ET Plus, including the crash tests, reviewing material from the trial in Texas and asking states to provide information about real-world crashes.
But Sicking says that plan is too shallow to be meaningful.
“There is nine years of accident history. It is out there to be collected and they haven’t done it,” he said.
The eight crash tests were finished earlier this year. The first seven were described by officials as “unremarkable.”
But in the last test the driver’s door was pushed in, damage seen by some – including Sicking - as validating the concern about the ET Plus.
Federal officials, however, said the ET Plus passed that test and although the door was pushed in 6.75 inches “the location and level of occupant compartment deformation in this test would not be likely to cause serious injury.”
The prompted outrage anew from Blumenthal who said that “The F.H.W.A. has given the ET-Plus a passing grade after allowing the manufacturer to conduct sham tests rife with flaws.”
The federal agency defended the tests as proper and Trinity Industries has repeatedly said its units are safe.
New Hampshire’s Cota says the test results are “encouraging” but not yet enough to give the department of transportation “the comfort” level it needs to start using the ET Plus again.
Whatever happens with the ET Plus, Cota sees a benefit from this issue. He said it brings attention to something A.A.S.H.T.O. had advocated for years: the need to evaluate how such highway devices perform in the real world and not just in crash tests.
The federal agency is still collecting information about the ET Plus and later this year it is expected to make a decision on whether the ET Plus poses a hazard.
It is possible that the federal agency could conclude there is not a problem so its approved status would continue.
However, if the agency decides the ET Plus does not function properly, it will take the unit off its approved list.
That would raise a serious issue for New Hampshire and other states: should the existing units be replaced and if so who would pay?
Not every black-and-yellow end piece in New Hampshire is an ET Plus.
The state buys from several companies.
But out of roughly 23,000 end units at least 3,000 and perhaps as many as 5,000 are ET Plus models. They are used on two lanes as well as interstates.
In New Hampshire, buying and installing just 3,000 units could cost at least $4 million.
Virginia has already sued Trinity, saying if federal regulators find there are problems with the ET Plus it wants Trinity to reimburse it for the replacement cost.
Such an action “is certainly not off the plate,” said Cota, although it would require consulting the attorney general.
But such litigation could take years.
Cota says the American Association of State Highway and Transportation Officials will also be evaluating the information gathered about the ET Plus and it will draw its own conclusion.
That may or may not be the same as the Federal Highway Administration.
In either case, Cota says the New Hampshire DOT will review the conclusions and make its own decision about what’s best for the state.
“We will be very cautious about how we approach it,” he said.