DOJ Investigating Maker of Controversial Guardrail

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The company that developed, manufactured and marketed a guardrail end terminal being blamed on a number of deaths is under investigation by the federal government.

When hit head-on by a vehicle, the X-LITE is designed to collapse on itself to absorb the energy, but in some cases, it has speared vehicles instead, killing or maiming those inside. The maker of the X-LITE, Lindsay Transportation Solutions, insists its product is not defective and is safe.

In its annual report to investors, the parent company, Lindsay Corporation, disclosed the following:

In June 2019, the Company was informed by letter that the Department of Justice, Civil Division, and U.S. Attorney’s Office for the Northern District of New York, with the assistance of the Department of Transportation, Office of Inspector General, are conducting an investigation of the Company relating to the Company’s X-Lite end terminal and potential violations of the federal civil False Claims Act.

While the exact allegations being investigated are unknown at this time, the False Claims Act signals that someone is accusing the company of knowingly defrauding the government.

News4 reached out to the Department of Justice, the Department of Transportation Office of the Inspector General and Lindsay Corporation for more details. None of them were able to comment on the investigation.

A Father’s Mission

Hannah Eimers was 17 years old when she crashed into an X-LITE in Tennessee and died in 2016. The guardrail pierced the driver’s side door. The Tennessee Department of Transportation says the X-LITE functioned properly since it collapsed as designed. However, the department pointed to two other accidents in the state before Hannah’s where the X-LITE did not function properly. Wilbert Byrd, Jacob Davison and Lauren Beuttel died when the guardrail speared the vehicles they were in.

After learning about the other deaths, Hannah’s father, Steve Eimers, started researching the X-LITE. He traveled to Washington, DC in April 2017 and asked the Federal Highway Administration (FHWA) to consider revoking its Federal Aid eligibility letter for the X-LITE.

Companies request eligibility letters from FHWA to make it easier to market their products to state departments of transportation. The letters are issued once FHWA confirms all required crash tests were run on the product. But according to a 2016 report from the Government Accountability Office, “FHWA does not have a process for formally verifying the testing outcomes and making its own or providing for an independent pass/fail determination.”

After Eimers’ meeting, FHWA re-examined the X-LITE crash tests and found “no notable concerns.” In a memo issued on May 3, 2017, FHWA said it also asked states for input on their “usage and experience” with the X-LITE. “Three states expressed some concerns with the device, including constructability challenges and overall quality concerns.” The memo does not specify which states that included, but Tennessee and Virginia had already stopped using the X-LITE due to concerns.

In its May 2017 memo, FHWA said it also examined the “most rigorous” data that it had at the time about how X-LITEs and other guardrails performed in real world crashes. That information came from a pilot program that was underway on guardrail crash data collection, a process known as in-service performance evaluation (ISPE). The memo states, “In considering the 200-plus crashes, the ratio of Fatality + Serious Injury per total crashes does not lead to any conclusions that any of the devices, including the Lindsay X-LITE, are unsafe.”

FHWA admits to News4 that the data was very limited. Also, the FHWA ISPEpilot program was not designed to collect data to make safety determinations. From the description of the program: “Based on the number of crashes expected and based on historic trends, the current timeframe for completion will likely be insufficient to collect enough data to draw statistically significant conclusions about the safety performance of the devices.”

At the time, most states weren’t conducting ISPEs, which is why they did not have much information to share with FHWA. The pilot program was created to find the best processes and practices and share those with the states. The pilot program wrapped up in January 2019, and the final report is expected by the end of 2020.

"The Federal Highway Administration (FHWA) has examined and re-examined the X-Lite and its in-service performance and has gathered input from state departments of transportation across the country. In FHWA's evaluations, the X-Lite has performed consistently with other end terminals on U.S. roads and highways.”

— Lindsay Transportation Solutions

New Crash Test Standards in Place

FHWA never revoked the eligibility letter for the X-LITE, but the guardrail is no longer being installed. Stricter crash test standards, known as MASH, took effect July 1, 2018. The X-LITE was not designed to meet those standards, so it’s no longer eligible for federal reimbursement.

States aren’t required to remove non-MASH guardrails from the roads right away. However, many of them, including Virginia, are in the process of replacing X-LITEs as they proactively upgrade their guardrails. Virginia expects to have all X-LITEs on state roads with a speed limit of 55 mph or more replaced by the end of 2019. Tennessee and Maryland launched replacement programs specifically targeting X-LITEs. Maryland expects to have all X-LITEs removed from state roads by the end of February 2020.

“Beginning July 1, 2018, new crash-testing standards for road safety equipment, including guardrail end terminals, started going into effect nationwide and states continue to transition to the new MASH standard as budgets and other factors permit. We respect the efforts of the Maryland Highway Administration in moving toward the new MASH standard and replacing all products from all guardrail end terminal manufacturers that have not been tested to this new standard.”

— Lindsay Transportation Solutions

Changes Questioned

While no new X-LITEs are being installed on America’s roads, there are still hundreds of them in place. Steve Eimers says he’s inspected about a hundred X-LITEs in at least eight states and contends he has found dozens of changes to the guardrail since it was crash tested in 2010 and received an eligibility letter from FHWA in 2011.

Changes to guardrails aren’t prohibited, but prior to May 2015, it was up to the manufacturers to decide whether the modifications needed to be reported to FHWA.

According to NCHRP Report 350, the crash test standards in place when the X-LITE was developed, “It is not uncommon for a designer/tester to make design changes to a feature during the course of conducting the recommended test series or after successful completion of the test series. Changes are often made to improve performance or to reduce cost of the design or both. Questions then invariably arise as to the need to repeat any or all of the recommended tests. Good engineering judgment must be used in such instances. As a general rule, a test should be repeated if there is a reasonable uncertainty regarding the effect the change will have on the test.”

The X-LITE eligibility letter states:

  • Any changes that may adversely influence the crashworthiness of the system will require a new acceptance letter.
  • Should the FHW A discover that the qualification testing was flawed, that in-service performance reveals unacceptable safety problems, or that the system being marketed is significantly different from the version that was crash tested, we reserve the right to modify or revoke our acceptance.

Eimers believes the system that is on our roads today is significantly different than the version that was crash tested and that the eligibility letter should have been revoked under the second bullet point listed above.

Lindsay Transportation Solutions did report two changes to FHWA which resulted in additional eligibility letters — one in March 2013 and another in January 2014.

The requirements for reporting changes to FHWA have changed twice since then. On May 18, 2015, FHWA issued a memo stating that manufacturers must notify the agency of any modification to a guardrail with an existing eligibility letter.

That changed again in May 2017 when FHWA decided it would no longer issue new eligibility letters for modifications. It is now up to the manufacturers and states to work together to evaluate the crashworthiness after changes are made.

Eimers sent News4 this statement about the federal False Claims Act investigation against the maker of the X-LITE:

“While I find this development very intriguing it would be irresponsible for me to speculate further. My focus remains on comforting the families whom have lost loved ones in X-LITE involved incidents and engaging with State DOTs around the country in an effort to prevent the next tragedy.

"We miss our daughter Hannah greatly. As we enter this Holiday Season, please pray for peace for our family, and the many others, around our great nation that will have an empty place at family gatherings.”

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