Bloomberg had an interesting story last month about a whistleblower who claims that an unapproved change to highway guardrails by their manufacturer, Trinity Highway Products, has rendered them dangerous. The trial started on Monday.
At the beginning and end of a guardrail, there is a piece designed to minimize damage from the guardrail to a vehicle during a crash. Without the specially designed end treatment, it risks impaling the car and severely injuring or killing occupants.
The original design was approved by the Federal Highway Administration and functions properly, minimizing the risk that it becomes a danger in a collision. However, in 2005, a different design began appearing on the National Highway System. The lawsuit alleges that this change was not approved and poses a safety risk.
When Trinity sells the product, it has to certify to the buyer that it has essentially the same geometry and mechanical properties as the one approved by the Federal Highway Administration. The states will then submit the cost of the purchase to the federal government for reimbursement from the Highway Trust Fund.
The false certification has become the core claim in the whistleblower lawsuit brought by relator Joshua Harman on behalf of the U.S. government under the False Claims Act. The False Claims Act permits lawsuits to recover money spent by the federal government as a result of a false claim or fraud. The complaint asks for damages sufficient to replace the defective guardrail and three times the government’s actual damages. If the lawsuit is successful, Harman will be entitled to an award of between 25 and 30 percent of the recovery.
The Business Week article has Harman’s interesting back story. He copied the Trinity end treatment design, manufactured it and sold it in Virginia because he believed it was off patent. Trinity sued him for it. His investigation led him to examine a guardrail that had malfunctioned in a crash. That is when he first discovered that the approved design was not the same as the design on the road.