CINCINNATI, OH (FOX19) - Amid a FOX19 investigation, the Ohio Department of Transportation decided last week to stop purchases of a guardrail end that a whistleblower claims has killed and severely injured more than 1,000 people across the country. The ODOT announcement is irrelevant, though. The guardrail end maker stopped shipping the end nearly two weeks before ODOT decided to act.
The guardrail end, called the ET-PLUS, is manufactured by Trinity Industries' Trinity Highway Products, LLC, which has two plants in Ohio.
A whistleblower filed a false claims suit against Trinity in 2012 on behalf of the federal government. The whistleblower, Joshua Harman, uncovered secret changes to the ET-PLUS; changes Harman claims causes the head to fail and results in impalements. Harman contended from the start that Trinity Industries defrauded the Federal Highway Administration by never reporting the changes and trying to cover those changes up.
On Oct. 20, 2014 a federal jury sided with Harman and found Trinity Industries and Trinity Highway Products guilty of fraud. The jury awarded the government $175 million in damages; a figure that could grow close to a billion dollars after damages are calculated.
ODOT SPOKESMAN TURNS PROFANE BEFORE INTERVIEW
On Oct. 17, FOX19 emailed ODOT spokesman Steve Faulkner a request, asking for several pieces of information regarding the ET-PLUS in Ohio. We wanted to know how many of the devices were on the state's highways, their location and how many had been involved in crashes. On Oct. 24, Faulkner responded with a list of approved guardrail ends used in Ohio, which is posted on the agency's Web site.
“The rest of the information does not exist,” Faulkner wrote. In a follow up email Faulkner could not give an exact accounting for the ET-PLUS in Ohio and confirmed the agency was not conducting any surveys or collecting any crash data regarding the performance of the ET-PLUS.
FOX19 made multiple email and phone requests to Faulkner asking to interview ODOT Director Jerry Wray. Each time Faulkner refused to schedule an interview with Wray and never sent a statement on ODOT's plans to deal with the controversial guardrail heads.
FOX19 informed Faulkner we'd be looking to interview Wray at the next possible opportunity as this issue was of great public concern and tax payers deserved to hear from the head of ODOT.
On Nov. 6, two days after the first FOX19 investigation aired, we found Wray at a Transportation Review Advisory Council meeting at ODOT headquarters. Wray chairs the TRAC. We set up a camera at the back of the public meeting room and waited for the council to finish its business. As we walked toward Wray, Faulkner stepped in.
“Get over here,” Faulkner told FOX19 reporter Jody Barr. "Just one second," Barr responded. “No, this way, we're going to bring the director to you," Faulkner said. “Yes, calm the [expletive deleted] down, we'll bring him to you,” Faulkner said.
Faulkner and Wray agreed to an interview after we made the trip to Columbus to question the director about the state's plans for the ET-PLUS.
ODOT WORKERS HAVE 'NO CLUE' ABOUT THE ISSUES WITH THE ET-PLUS
On Oct. 30, FOX19 and the attorney who helped argue and win the whistleblower lawsuit against Trinity went inside the ODOT garage in Cuyahoga County to document an ET-PLUS head involved in an incapacitating crash in Nov. 2013. The ET-PLUS head malfunctioned and sent more than 20 feet of guardrail through an Amherst woman's car, attorney Steve Lawrence said.
ODOT staffers told us the garage handled guardrail maintenance for the county. While inside the garage, several ODOT workers grew curious over why two attorneys and a news outlet were pouring over an ET-PLUS end terminal.
Lawrence explained that secret changes were made to the heads around 2005 and were the reason more than 1,000 people were killed and maimed by guardrail impalements across the country.
“There are dozens and dozens and dozens after they switched to the 4 inch channel," Lawrence explained to two workers.
“These are out there, still being installed today?" an unidentified ODOT worker asked Lawrence. “We saw some being installed today," Lawrence responded.
“Trinity lied to the federal government. They lied to every state, they lied to contractors, they lied to everyone,” Lawrence told FOX19. “Had they been honest upfront, the cost would have been high to them, but now we have costs--no only to Trinity--but in human lives. That is a direct result of the lies they (Trinity Industries) told and have continued to tell for years.”
ODOT: 'NO EVIDENCE' ET-PLUS IS A PROBLEM
When we spoke with ODOT Director Jerry Wray on Nov. 6, he claimed the state had “no evidence” the ET-PLUS guardrail end terminal ever malfunctioned here. Wray made the statement despite the fact that his own agency was holding onto an ET-PLUS guardrail head that was suspected of malfunctioning causing an impalement and severely injuring a Cleveland-area woman last year.
Two days before we found Wray for this interview, he announced ODOT would no longer purchase the ET-PLUS, pending new crash tests and direction from the Federal Highway Administration on what to do about the heads. Nearly two weeks before that, Trinity Industries had already announced it would stop shipping the heads, which meant Wray's agency couldn't purchase them if they tried.
“But, does that address the real problem here," Barr asked Wray, meaning ODOT's decision still didn't take the ET-PLUS off the state's highways. “We don't know there's a problem,” Wray responded, “We have no evidence that there's actually is a problem.”
You can't tell that to Amy Vitelli, the Cleveland-area woman who was gravely injured in a November 2013 guardrail impalement involving an ET-PLUS. Vitelli told FOX19 she blamed ODOT as much as she blamed Trinity Industries for what's happened to her since she first made contact with an ET-PLUS end terminal, breaking multiple bones, causing internal injuries and concerns from her doctors that she may never walk again.
"What would you tell ODOT today," Barr asked Vitelli.
“I would tell them to think again. I wish they would rethink that decision. The people who were supposed to be paying attention weren't,” Vitelli said.
Despite a federal jury's verdict on Oct. 20, finding Trinity Industries guilty of fraud, Wray maintained the legal wrangling over the unapproved changes to the ET-PLUS was just “a point of contention between two manufacturers.”
“You could be considered a victim here as the state of Ohio,” Barr told Wray, “Does that not concern you," Barr asked. “That would concern me, however, what you're talking about is an ongoing case. There has been no resolution to that," Wray countered. “There was a jury verdict that found this company guilty of fraud," Barr reminded the director. “We have no evidence in the state of Ohio that there's any issue with these," Wray said.
In September, the University of Alabama at Birmingham published a study on the performance of the ET-PLUS. UAB used crash data from Missouri and Ohio to determine the ET-PLUS' performance when compared to the other end terminals on the FHWA's approved products list.
GOVERNMENT STUDY: ONLY ET-PLUS 'STATISTICALLY LESS SAFE'
In September, University of Alabama-Birmingham researcher, Dr. Kevin Schrum, put together a comparison of the modified ET-PLUS and the ET-2000. The ET-2000 was the predecessor to the ET-PLUS.
Researchers looked at crash data from Missouri and Ohio and concluded, “…in both states, it was found that the ET-PLUS placed motorists at a higher level of risk of both serious injury and fatal injuries relative to its predecessor, the ET-2000.”
In Ohio, the study looked at all deadly and serious injury crashes involving the ET-PLUS. Researchers used crash scene photographs to determine the specific guardrail end involved and found 60 deadly and serious injury crashes in Ohio between 2006 and 2013. That data, ODOT spokesman Steve Faulkner claimed, “did not exist.”
Of the 60 Ohio crashes, the study showed five were deadly. Of the five deadly crashes, four involved the ET-PLUS, one deadly crash involved the ET-2000.
We requested crash data from ODOT in October, but the agency told FOX19 it did not collect crash data involving guardrail strikes and could not provide it.
We requested the same information from the Ohio Highway Patrol. The patrol was able to provide FOX19 with a spread sheet showing 277 guardrail end strikes in the last five years across the entire state. These crashes involved either death or serious injury. The patrol does not notate what guardrail end terminal is involved. Given the lack of information, we were unable to determine which—if any—of the 277 crashes involved the ET-PLUS.
Despite the study and the OHP crash data, ODOT's Wray wasn't interested in discussing those points with FOX19, “There's a study from the University of Alabama--hold on director, we--," Barr said as Wray walked away from the interview. “It's all the time we have, Jody," ODOT spokesman Steve Faulkner said.
FOX19 followed Wray down a hall and to the elevator, "Director, one more point--there's a study commissioned by the University of Alabama and Missouri that shows these devices are four times more likely to be involved in a deadly crash--is that not evidence enough," Barr asked the director. “There is no evidence of that in Ohio," Wray said as he walked into the elevator, surrounded by his staff.
ODOT followed the lead of more than 35 other states in taking the ET-PLUS off the state's approved products list. The move means contractors and ODOT are not allowed to install ET-PLUS terminals on any new guardrail construction in the state. The problem for those who uncovered the changes to the ET-PLUS, that does not get them off the nation's highways.
The FHWA ordered Trinity Industries to devise a plan and submit it by Oct. 31 for how it will perform new crash tests for the ET-PLUS, but the agency has not disclosed whether Trinity has agreed to perform the tests or a timeline for doing so.
States are banning the ET-PLUS from new construction, but only Virginia's DOT has taken steps to remove the ET-PLUS from its highways. VDOT is putting together a plan on how it will inventory the end terminals on its highways, then mark the ET-PLUS for removal.
Sunday that Kentucky state officials are planning an evaluation of the faulty guardrail heads on Kentucky roads and highways. Federal officials have ordered a new round of tests.
. The state banned the product made by Trinity last week.