The I-Team has been going through the court documents. When I first investigated the safety of guardrails around the Bay Area in 2002, the issue was improper installation. However, this time, it's a "design change" that may be a problem on 600,000 guardrails around the country and across California.
Driving Bay Area highways, you've seen the rectangles that are called "guardrail end terminals" or "heads". And this is how they're supposed to work in a collision: the force of the crash feeds the W-shaped guardrail into the head, where it gets flattened into a ribbon of steel, curling off to the side. That process absorbs the energy of the crash and slows down the vehicle.
Josh Harman told us, "I'm a manufacturer of guardrails and own a company that installs and have installed and repaired these terminals."
Harman says one of his biggest competitors, Trinity Industries of Dallas, modified its end terminals without telling the government -- shrinking the length, the height and the width -- to save money. He identified a four-inch model off Highway 101 in Gilroy, but they're all over the Bay Area.
In his whistleblower lawsuit, Harman says, with Trinity's four-inch wide "ET-Plus" model, "The guardrail does not feed properly through the chute." It "throat locks ... causing the guardrail to double over on itself or protrude through the crashing vehicle."
Harman says, "The four-inch locks up, when the head locks up, the head either kicks to the side, flips the vehicle around and ultimately the W-beam, which is extremely rigid enters the compartment, cuts off legs, cuts people in half."
Harman says he found this information while defending himself against a patent infringement lawsuit filed by Trinity; it ended with a confidential settlement. And he agreed to stop producing an end terminal that was similar to the ET-Plus. Harman says he's not a sore loser trying to strike back at the competition, as Trinity claims.
Harman says, "That is something that is per se, a red herring, they're trying to distract from it. Whether I'm trying to sell the company or whether I'm trying to stay in business has no bearing on the fact that they're failing, people are getting injured, killed."
Harman has launched a website about the ET-Plus. His lawsuit says he has identified more than 100 accidents in which the head failed to function properly and "is personally aware of several fatalities involving the modified ET-Plus" including a 2008 crash in Tennessee. A 38-year-old paramedic died when a guardrail entered the passenger compartment of her Honda.
In response, Trinity has filed defamation lawsuits against Harman -- dropping the one in Georgia, but pursuing another in Texas. The company says Harman "has published false and malicious statements about [its] highway safety products" … "falsely claiming that ET-Plus heads are killing people ... [and] are failing completely." The statements "are completely contrary to the product's acceptance by the Federal Highway Safety Administration." The suit claims "Harman hopes to financially benefit from ... a class action lawsuit against the plaintiffs."
Harman says it's not about the money. He says, "They're suing me for defamation, they're trying to shut me up. I will not shut up. It's that simple, I will not."
The Federal Highway Administration approved the ET-Plus after a crash test in May 2005. However, documents from the patent infringement case show, Trinity made changes to the ET-Plus after that crash test, without telling the federal government.
In a deposition, Harman's lawyer hands a drawing of the end terminal to a Trinity vice president, and asks about revisions it shows.
Harman lawyer: "Revisions 5-10 were done after the May 27th test weren't they?"
Trinity Lawyer: "Objection to form."
Brian Smith, Trinity VP of Sales: "According to the drawing, yes."
Highway officials learned that Trinity had shrunk the width of the ET-Plus from five inches to four and made other changes, only after Josh Harman told them seven years after that crash test.
In his deposition, Nicholas Artimovich of the Federal Highway Administration says, "I believe I first heard of those in either late 2011 or early 2012 through telephone conversations with Mr. Joshua Harman."
After that, the Federal Highway Administration drafted a letter to Trinity calling for an "in-service performance evaluation" of the terminals and "an investigation into the crashes documented by Mr. Joshua Harman." It says, "The number of highway crashes with fatal injuries involving the ET-Plus terminals does not match the excellent history of the original ET-2000 terminal," the one with the five-inch wide feeder channel.
But, the FHWA tells me they scrapped that letter -- never sent it, because it was a competitor making the accusations against Trinity. They also declined to join Harman's whistleblower lawsuit, and reaffirmed that the ET-Plus is acceptable for use in the national highway system.
Harman says, "It has got to come to light, this cannot just be out there, this could be my children. These have a 50-year life expectancy, and if I don't do something, they'll be out here as little mines and they'll kill whenever they get hit or maim, very highly possible."
Harman is very clear. He told us he will never settle his whistleblower lawsuit, unless the deal includes a recall of the ET-Plus heads. A spokesman for Cal-Trans tells me they've looked into Harman's complaints, and "did not find any safety issues identified here in California at all." We'll see how this plays out. No one from Trinity would appear on camera, but they provided us a statement.