JOHNSON CITY, TN (WJHL) – The Federal Highway Administration says it does not think further testing should be conducted on the ET-Plus guardrail.

And the FHWA made it clear it has no plans to recall the guardrail or retest it despite continued questions about the product’s effectiveness and safety.

The recommendations made as part of a federal review of guardrail end terminals, unveiled Friday morning, come just days before the Virginia Department of Transportation is set to conduct its own independent testing of the roadside safety product that’s been the focus of multiple lawsuits.

The federal task force found all guardrail terminals – not just ET-Plus, “…have performance limitations under certain impact or installation conditions.” So the task force recommended “moving to the next generation of guardrail terminals” meeting new safety criteria.

Last year, a federal court ruled Trinity Industries committed fraud when it changed the design of the ET-Plus end terminal in 2005 without telling customers. Multiple crash victims sued the company claiming the modification causes the end terminal to fail by allowing the guardrail to pierce vehicles instead of peeling it away from the vehicle during a crash.

Trinity denies it committed fraud and maintains exhaustive testing proves ET-Plus performs as designed. “The ET Plus System has been successfully crash tested more times than any product of its kind,” the company has repeatedly said.

But two weeks ago, VDOT announced it would conduct a new independent round of crash tests – a clear sign the state doesn’t trust recent federal tests, which the FHWA said ET-Plus passed.

VDOT has refused to comment on the decision, but letters from the Virginia Attorney General’s Office to Trinity Industry attorney reveal VDOT decided to re-test ET-Plus because federal testing didn’t include low-angle tests which, according to the Virginia Attorney General’s Office, ET-Plus failed in previous testing – a fact the AG says the company initially failed to disclose.WEB EXTRA: Emergency motion on behalf of Trinity to compel the Commonwealth to allow inspection of crash testing (.pdf)

“Trinity intentionally failed to disclose the existence of five failed tests,” said Richard Tyler McGrath,Sr. Assistant VA Attorney General in a September 8th letter. “Virginia has no knowledge that any other end treatment being used on its highways has failed any crash tests.”

“Virginia can ill afford to rely on the recent testing under these circumstances,” McGrath wrote.

A Trinity Industries spokesman said the Attorney General’s Office is knowingly trying to mislead in referencing the failed low-angle tests.

“The VA AG’s office is purposely mixing apples and oranges to justify it’s tests,” said Jeff Eller. “Yes, failed crash tests were introduced at trial. However, those tests were on a prototype research project.”

“…and the VA AG’s office not only knows this, but is purposely ignoring that important fact,” Eller said.

As Trinity Industries praised the FHWA review which included a plan to move forward with updated standards for roadside safety equipment, the company’s attorneys filed an emergency motion in court to require VDOT to release details of its independent crash tests in California starting September 17th. The company also asked a Richmond judge to require VDOT to allow Trinity to send representative of its choosing to observe the crash tests to be conducted by KARCO Engineering LLC at its facility in Adelanto, California.

“Instead of fixing the problem, FHWA is kicking the can down the road at the expense of the traveling public’s safety,” said Joshua Harman, a whistl blower on behalf of taxpayers in the case against Trinity Industries’ ET-Plus terminal. .

Trinity Industries continues to openly question VDOT’s motives for the test, claiming the state agency’s real goal is to “support its legislative agenda” referring to an on-going fraud lawsuit filed by Virginia against Trinity.

“The only logical outcome is for the Commonwealth to test all end terminals installed on Virginia roadways to the same conditions,” said Matthew Kirsner, Trinity attorney, in a letter to the VA AG’s office sent Friday.”

The man who brought the federal whistle-blower lawsuit against Trinity critcized the FHWA decision.

“Instead of fixing the problem, FHWA is kicking the can down the road at the expense of the traveling public’s safety,” Joshua Harman said.

Also critical of the FHWA was U.S. Sen. Richard Blumenthal (D-Conn.), a ranking member of the Senate Commerce Committee’s Subcommittee on Consumer Protection.

More than three and a half years since states first raised concerns about ET-Plus guardrails and nearly one year since a jury reached a bombshell half-billion-dollar verdict against the ET-Plus’s manufacturer for fraud, FHWA still inexplicably denies that adequate evidence exists to remove these potentially-dangerous devices from our roads. Despite the mounting, irrefutable evidence, FHWA continues to look the other way, an approach that endangers our roads and imperils our drivers. FHWA’s continuing safety failure is a reason why some states are starting to re-test ET-Plus devices on their own – a troubling vote of no confidence in this agency.”

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