IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISON

JOSHUA HARMAN, on behalf of

THE UNITED STATES OF AMERICA,

PLAINTIFF/Relator,
v.
TRINITY INDUSTRIES, INC. and
TRINITY HIGHWAY PRODUCTS, LLC,
DEFENDANTS.

CIVIL ACTION NO. 2:12-cv-0089

DECLARATION OF BRIAN A. COON

Brian A. Coon declares under penalty of perjury pursuant to 28 U.S.C. 1746 as

follows:
1.

I have been retained by the law firm of Boies Schiller & Flexner LLP, one of the

counsel for Joshua Harman, to provide expert opinions in the above titled action.
2.

As part of this retention, I have reviewed the publicly available photographs and

videos of the crash testing done on January 27, 2015, by Southwest Research Institute (SWRI),
Trinity Industries, Inc. and Trinity Highway Products, LLC (referred to collectively as
"Trinity).
3.

This crash test was one of eight crash tests that the FHWA mandated in

November 2014 that Trinity perform on the ET-Plus. Four of the tests were to be performed on
ET-Plus units at a height of 27 inches and four were to be performed at a height of 31 inches.
It is my understanding that the January 27, 2015, crash test was performed on an ET-Plus with
31-inch guardrail.
1

4.

Counsel provided a document designated Chain of Custody & Measurements for

ET-Plus Retest, as shown in Appendix A. Terminals #1, #3, #7, and #8 all have exit gaps larger
than Trinitys design specification of 1" (minimum 1.00" exit gap, maximum 1.125" exit gap).
Not only are these terminals outside of Trinitys design specifications, the use of 1.25" exit gap
terminals is in direct conflict with Trinitys agents sworn testimony, as noted in Appendix B,
who have repeatedly stated that all ET-Plus heads have 1" exit gaps.
5.

It is my understanding from an FHWA December 16, 2014, memorandum and

public statements that the dimensions of the ET-Plus terminal head unit tested on January 27,
2015, included a 4-inch channel, a 1.0495-inch exit gap, and a vertical height of 14-15/16 inches.
6.

From my review of the January 27, 2015, crash test, the guardrail buckled and

began violently penetrating the occupant compartment.

7.

Section 4.4 of the NCHRP Report 350 guidelines state that One of the factors to

be considered in the evaluation of a crash test is the structural integrity of the occupant
compartment . . . These criteria require that the test article not penetrate the occupant
compartment and that there be no deformation of or intrusion into the occupant compartment that
could cause a disabling injury.
8.

In my opinion, the January 27, 2015, test of the ET-Plus guardrail end terminal

failed NCHRP Report 350 Criteria D, Deformations of, or intrusions into, the occupant
compartment that could cause serious injuries should not be permitted. NCHRP Report 350,
Table 5.1, Page 54.
9.

The deformation of the drivers side door in the January 27 crash test not only

could have caused disabling injuries, but showed a propensity to penetrate the vehicle and cause
devastating injuries. This was a clear failure under NCHRP Report 350 guidelines.

10.

I have also reviewed photographs and videos of the five crash tests performed by

TTI on the commercialized ET-Plus head between June 2005 and March 2006. Each of these
crash tests failed. The failure mode in those crashes were similar to that observed in Trinitys
previous tests on the ET-Plus, as shown in Appendix C.
11.

The flared ET-Plus crash test failures and the January 27 crash test failure are

similar to failures occurring on the nations roadways during collisions with the ET-Plus terminal
heads, which, in many cases, cause severe injuries and death.
I hereby declare under penalties of perjury that the foregoing is true and correct.

Executed on February 5, 2015.

/s/ Brian A. Coon

Brian A. Coon

APPENDIX A
FHWA Memorandum
(non-compliant measurements highlighted)

December 16, 2014

CHAIN OF CUSTODY & MEASUREMENTS FOR ET-PLUS RETEST

FHWA is committed to ensuring credibility in the retesting of the ET-Plus devices.

FHWA worked with State DOTs to identify ET-Plus devices for the crash tests that had
been previously sold into the market and were part of a State DOTs inventory.

Caltrans owns and provided the eight ET-Plus devices for use in the crash tests. Upon
learning that these devices were available in Caltrans maintenance inventory, FHWA
arranged with Trinity to inspect, measure and confirm that the devices were in fact the 4
model of the ET-Plus. This confirmation took several forms:
o Caltrans confirms that it purchased the devices from Trinity in June 2014 for
normal installation on roads within the State and that Trinity shipped these
devices to Caltrans in September 2014.
o Senior FHWA staff measured the eight devices at the Caltrans facility on
11/12/14. FHWA later confirmed that the measurements met the dimensions
called for on the design drawings for the test plan.

FHWA Measurements of Caltrans ET-Plus Devices

Measurements
Unit
1
2
3
4
5
6
1 - Exit Gap
1 1/4"
1.0"
1 1/4 "
1.0"
1.0"
1 1/8"
2 - Channel Width 4.0"
4.0"
4.0"
4.0"
4.0"
4.0"
3- Guide Chute
Exit Height
(Outside)
1' 3.0" 1' 2 7/8" 1' 3.0"
1' 2 7/8" 1' 2 7/8" 1' 3.0"

1 1/4"

1 1/4"

4.0"

4.0"

1' 3.0"

1' 3.0"

o Trinity also measured and examined the devices and confirmed that they were
Trinity products.
o Caltrans observed the FHWA and Trinity measurements.
o Caltrans engraved a unique identifier on each of the eight devices.

o Trinity also marked each device with a signature and a steel punch number.
FHWA staff photographed these markings at the Caltrans facility in November
and again at the testing site in December.

FHWA photo taken of Device 1

at Caltrans facility

FHWA photo taken of Device 1

at Southwest Research Institute

Once FHWA and Trinity both confirmed that the devices were in fact the ET-Plus 4
model and within manufacturing specifications, FHWA accepted the devices for use in
the testing at Southwest Research Institute (SwRI).

Trinity arranged for transportation of the devices from Caltrans in California to SwRI in
Texas. Global Pioneer Logistics transported the devices to SwRI.

Upon completion of each test at SwRI, FHWA staff will visually confirm that the
engravings on the end of each device match the unique identifiers Caltrans and Trinity
placed on each device.

SwRIs test report submitted to FHWA will include confirmation of the chain of custody
of the devices tested and the devices measurements.

APPENDIX B
(Filed Under Seal)

Trinity Deposition Testimony

Acknowledging 1" Exit Gap

APPENDIX C
Comparison to Prior Failed Testing

TTI Test 220513-4 (October 2005)

SwRI Test ET31-30 (January 2015)

TTI Test 220513-4 (October 2005)

SwRI Test ET31-30 (January 2015)

10

TTI Test 220513-1 (June 2005)

TTI Test 220513-4 (October 2005)

TTI Test 220513-5 (March 2006)

SWRI Test ET31-30 (January 2015)

11

SwRI Test ET31-30 (January 2015)

SwRI Test ET31-30 (January 2015)

12

SwRI Test ET31-30 (January 2015)

SwRI Test ET31-30 (January 2015)

13

APPENDIX D
Relevant Portions of NCHRP Report 350

14

NCHRP Report 350, Page 54 (deformations not permitted)

Deformations of, or intrusions into, the occupant compartment that could cause serious injuries
should not be permitted.

NCHRP Report 350, Page 14 (occupant is vunerable)

Experience gained from limited side impact tests clearly shows the vulnerability of an occupant
on the impact side of the vehicle, due typically to large intrusions of the test article into the
occupant compartment.

NCHRP Report 350, Page 51 (test article not to penetrate the occupant compartment)
One of the factors considered in the evaluation of a crash test is the structural integrity of
the occupant compartment. . . . These criteria require that the test article not penetrate the
occupant compartment and that there be no deformations of or intrusions into the occupant
compartment that could cause a disabling injury.

NCHRP Report 350, Page G-19 (intrusion of the door is hazardous)

The intrusion of the door into the passenger compartment is one of the most hazardous
characteristics of side impact accidents. The occupant strikes the intruding door structure in a
typical side impact event. Penetration of the passenger compartment has long been recognized
as a very hazardous event in roadside collisions. Any significant penetration or deformation of
the passenger compartment is disallowed in all other types of full-scale appurtenance crash tests.

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NCHRP Report 350, Page G-23 (discussion of head injury criterion)

It is widely agreed, however, that the head is probably less tolerant in lateral impacts
than in frontal impacts.

NCHRP Report 350, Page 52

Detached elements, fragments, or other debris from the test article should not penetrate or
show potential for penetrating the occupant compartment or present an undue hazard to other
traffic, pedestrians, or workers in a construction zone if applicable.

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