This was the romantic getaway of a lifetime for Cindy Martin and her long-time boyfriend, Blaine Markland. They were on a road trip through upstate New York and New England.
Blaine asked Cindy to marry him. She said yes. She was thrilled and couldn’t wait to tell her family.
The day after their engagement, the couple were back on the road, on their way to tell Cindy’s family in Massachusetts.
They would never make it to that State.
It was a guardrail similar to tens of thousands of others that line the roads in Canada and the U.S. The guardrail which speared their car was an ET Plus, made by Trinity Industries.
“I heard us hit and felt the spin and heard the noises… when we came to a stop and I looked up and there was…you know my leg with a bone sticking out of it,” says Blaine Markland who spent months in a local hospital recovering. “I had Blaine’s blood and matter from his leg all over the side of my face and he was screaming,” says Cindy Martin, still visibly shaken by the experience.
Blaine nearly lost his leg. To fix it, he had to go through almost 30 surgeries and now, more than a year later, is still struggling to walk. Cindy also went through several surgeries “I have a ten inch plate and a five inch plate about 16 screws holding my leg together,” she told 16×9.
Guardrails are supposed to absorb a car’s energy when they are hit from the front. In many cases, they are designed to absorb the energy and coil away.
But critics say that the ET Plus can sometimes fail, with catastrophic results. Rather than absorbing the impact, the guardrail can enter the car and spear the people inside.
“We feel awful,” says Trinity spokesperson Jeff Eller. “We don’t want anybody to get hurt ever. People get hurt every day. People get hurt on our guardrails. They get hurt on our competitors’ guardrails. It does not mean the product’s defective.”
But Trinity’s apology is little comfort for Cindy and Blaine. The two are planning to sue Trinity. Their lawyers say the ET Plus should have never gone into the car. Their lawsuit is part of a number of cases by accident victims.
Eller told 16×9 that the couple was going well above the 70 MPH speed limit — a claim denied by the couple’s lawyer. New Hampshire transportation officials who looked at the incident said the terminal coiled as designed but eventually kinked. One state official 16×9 spoke with said speed could have been a factor, but there is not enough information to make any final conclusions.
Josh Harman, who makes guardrails himself and is a competitor of Trinity, has clocked thousands of miles in his car looking for accidents involving ET Pluses.
“I don’t fly in a plane most of the time. I always drive and that purpose is to find these accidents. I finally collected about a little over 100 accidents, somewhere around there.”
“I hear about accidents… I got people across the nation. I get phone calls, I’ve got Google alerts. I’ve got everything,” Harman says.
What he discovered was that Trinity modified their guardrail, changing the dimensions without telling the U.S. government. Harman says this absolutely leads to “fatalities, like men and women losing legs and limbs.”
There is a history between the man and the company. Years ago, Trinity sued him saying he copied their patent without permission. “It began a fight, yes,” says Harman.
The suit was settled confidentially, but he would become Trinity’s most vocal critic.
In 2012, the two met back in court when Harman accused Trinity of fraud. In October 2014, a U.S. federal jury delivered a big verdict against the company. They said Harman was right.
Although there was no decision made about whether the guardrail was safe, Trinity was found to have acted fraudulently in changing the design of the ET Plus without telling the government. The company was now on the hook for more than $660 million and Harman was entitled to a big chunk of that.
“I’ve stood up. I’ve stood up against them. It went to a court of law and it was sounded very, very loud and clear they committed fraud,” Harman says.
Trinity disagrees with the decision and is appealing, arguing it was not required to disclose the change in the first place because it did not impact safety. They also said the omission was an administrative error.
Eller says Harman is an opportunist and accuses him of having “counterfeited guardrails.”
“He got caught. He went bankrupt, and he’s using both the Canadian and the U.S. legal system to try to make his money back. He is a conman in whistleblower clothes,” Eller says.
Though Trinity says the jury made the wrong decision, the U.S. Federal Highway Administration (FHWA) decided to do a review in October 2014. FHWA is a key regulator of guardrails in the U.S. and its decisions are closely monitored both by the U.S. states and Canadian provinces.
As part of the review, the ET Plus guardrail would need to be crash-tested in eight collisions.
Critics say the eighth test was a violent crash that could cause serious injury.
In fact, by the Federal Highway Administration’s own admission – the forces of the crash could shatter a person’s leg bone.
“The 5-inch passed all tests. The 4-inch passed all tests,” says Eller. “If you go look and read closely what Federal Highway Administration’s independent experts said… it performed as designed…Don’t equate a visual reference on Test 8 to the real data that got collected by unbelievably qualified engineers… who said within these standards, Test 8 is a pass.”
FHWA also defended the pass, saying the U.S. federal government, the crash test facility and an independent expert agreed that test eight “met the applicable crash test criteria.”
Accident victim Cindy Martin doesn’t believe it. “They went back in. They did eight crash tests. One of them failed. Guess what, that means eight failures to me…I get mad,” Martin says.
“It just seems like… the government is trying to cover their tail as well instead of getting to the truth,” adds her husband Blaine.
Data about how ET Pluses are performing is still coming in. In September the FHWA published a report with state transportation officials which concluded that there are vulnerabilities in other Guardrails lining U.S. roads, not just the ET Plus. They also said there needed to be more rigorous testing and better installation.
While legal wrangling and regulatory arguments continue south of the border, Quebec, Alberta and most of the Maritime provinces followed the move made by approximately 40 U.S. states announcing that the ET Plus was suspended from their approved list of guardrails.
Ontario and Manitoba were the holdouts and contractors could keep installing the ET Plus there.
“Right now we are not aware of any information here in Ontario that our systems are not working as designed,” says Mark Ayton Senior Engineer responsible for road safety with Ontario’s Ministry of Transportation. “It’s not being installed because it’s not available but it’s still in our specs”.
Trinity suspended manufacturing the ET Plus last year but they could be installed if Trinity starts shipping them again. Ontario also told us that after examining an eight year period, “no fatalities involving” guardrail heads occurred.
For more about the ET Plus, watch “Highway Hazard?” on 16×9 Saturday at 7pm.
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