Protecting America's Drivers From Dangerous Roadways

Cohen Milstein - Leading the Country in Roadway Litigation and Advocacy

Cohen Milstein is at the forefront of defective guardrail litigation and advocacy. Our work in guardrail litigation has been promoted nationally by NBC's TODAY ShowCBS This Morning, CBS Evening News, as well as their local syndicates across the country.

We are currently involved in four wrongful death lawsuits against Lindsay Corporation relating to the Lindsay X-LITE guardrail. In addition, the firm has been involved in wrongful death lawsuits against Trinity Industries, another national manufacture of guardrail systems.

Cohen Milstein's Guardrail Lawsuits

Our Leadership in Guardrail Investigations

As an essential part of our guardrail litigation, we have done extensive research on guardrail safety and design, traveling across the country, inspecting accident sites, and hosting countless meetings with guardrail and highway system design experts from around the world. In so doing, we have discovered, among other things, a new series of catastrophic failures pertaining to guardrail systems. For example, specifically to the X-LITE system, when impacted, the end rail often fails to properly contain the telescoping rails, resulting in violent and deadly penetration of the vehicle. (Read about our research below.)

Our Leadership in Guardrail Advocacy

As a result of our efforts, we have also forged strong relationships with guardrail and highway system design experts, as well as state and federal legislatures, and the media. We have worked with the media to communicate our findings about these roadway hazards, and we have proactively advocated on behalf of our clients before state and federal legislatures to remove hazardous guardrails.

Our Leadership in Getting Results

Led by Theodore J. Leopold and Leslie M. Kroeger, Cohen Milstein has had multiple meetings with federal government officials and corresponded with multiple State Department of Transportation (DOT) offices.  In April 2017, Mr. Leopold, Ms. Kroeger, and Cohen Milstein associate, Poorad Razavi, participated in a closed door meeting with the heads of the Federal Highway Administration (FHWA) at the boardroom of the United States Department of Transportation, along with several United States Senate staff members. Shortly after that meeting, many legislators around the country began to initiate laws to remove the Lindsay X-LITE guardrails from their roadways. In addition, on May 16, 2017, Mr. Razavi traveled with Cohen Milstein client, Stephen Eimers, father of a victim of a defective guardrail, to the New York State Capitol in Albany, New York for a joint press conference with several New York State Senators and Congressional members to address a proposed bill that would completely ban the Lindsay X-LITE from New York and develop a plan to remove the product from state roadways.

Cohen Milstein - Research in Defective Guardrails

    America’s Dangerous Roadways

    Guardrails are installed along America’s roadways for the protection of motorists.  Guardrails, if properly designed, keep vehicles from straying off the roadway and, when impacted at the end points, should absorb or dissipate energy from the crash and give way, rather than remaining rigid and potentially penetrating and spearing into the accident vehicle. But, unfortunately, there are tens, if not hundreds, of thousands of guardrails that will not achieve this purpose either due to poor design or improper installation.

    For example, according to the United States Department of Transportation Federal Highway Administration (FHWA), 29 States in the country have the X-LITE installed on state-owned roadways.  There are approximately 14,000 X-LITEs nationwide; however over 80% are concentrated in seven States: Maryland, Massachusetts, North Carolina, Tennessee, Texas, Virginia, and West Virginia

    In Tennessee, where Cohen Milstein has filed several wrongful death lawsuits against related to the Lindsay X-LITE guardrail, the Tennessee Department of Transportation (TDOT) determined on October 26, 2016 that the Lindsay X-LITE guardrail end terminal was no longer qualified for its qualified products list, based upon concerns for potential long-term performance issues of the terminal’s telescoping W-beam slider assembly friction-reduction type system. However, the TDOT, unfortunately, also determined that it would not replace or install new Lindsay X-LITE guardrail terminals.  Today, over 1,000 X-LITE guardrail terminals remain on the roads across the state.  The same X-LITE guardrail has been involved in at least four fatal crashes in Tennessee in 2016.

    Later in 2016, TDOT made the decision to remove these guardrail end terminals entirely from roads where the speed limit is greater than 45 mph.  The TDOT has started the process, but it is unclear how long such a massive overhaul project will take.

    Our Findings – Testing and Approval Process

    All of the defective and potentially dangerous guardrails on our roads begs the question: why and how did this product get approved for American roadways?  While the “why” answer is more complex, the “how” is much easier to describe.  The United States government, through the Federal Highway Administration (FHWA) sets out testing criteria for guardrail systems. If a company provides passing results to the government, then the FHWA will inform individual States that Federal funding can be used for the installation of those systems.  

    However, the testing criteria is a minimal standard that is outdated by all measures due to the inherent inability of a publicly funded governmental program to keep up with state of the art technology.  Unfortunately, individual State Department of Transportations (DOT) are left with the impression that FWHA approval is the gold standard, despite the reality that the standards are the bare minimum criteria that fail to take foreseeable real-life scenarios into account. 

    Our Findings – Lindsay Corporation

    We uncovered that the company that was performing the ‘independent’ testing on the Lindsay X-LITE was in fact owned by Lindsay Corporation.  Shockingly, the documentation of the test results submitted to the FHWA indicate that Lindsay cherry-picked specific test findings in order to obtain approval.

    Roadway contractors and designers, much like in the automotive industry, habitually seek to shield themselves from liability by hiding behind their compliance with governmental testing standards.  Cohen Milstein understands that it is crucial to the welfare of our clients and to society as a whole that we properly implement the various techniques to identify these defects, and strategically maneuver through the industries’ various propagated defenses.

    In addition, Cohen Milstein uncovered, following nationwide publicity of several lawsuits filed against Lindsay by the firm in June 2017, Lindsay has sought and received FHWA support for yet another similar guardrail design, the Lindsay MAX-Tension, on June 15, 2017.  It is anticipated that this new design was also subject to same self-testing and self-reporting as prior Lindsay products.  Cohen Milstein will be closely monitoring the performance of this new rail by utilizing the firm’s vast network of Department of Transportation and political contacts throughout the country.

    Our Findings – Trinity Industries

    As a part of our litigation against Trinity Industries, Inc., we found that Trinity covertly reduced the steel in their ET-Plus end rail terminal, resulting in violent deaths on the roadway due to failing guardrail end terminals.  Following our litigation against Trinity, the ET-Plus was completely removed from all federally associated Qualified Products Lists for roadway use.  Trinity was later ordered to pay $663,000,000.00 for its improper actions. See our discussion on this issue, “Deadly Roadways: Guideposts for Defective Guardrail Litigation,” published by Florida Justice Association, Fall 2013.

    Conclusion – A Competitive Market with Little Oversight

    The removal of the Trinity ET-Plus resulted in companies rushing to market to fill the vacuum of tens of thousands of ET-Plus units that were previously being sold.  One of those companies was the Lindsay Corporation, with whom we are currently involved in litigation.  They designed, marketed, and sold a completely new end rail concept.  Prior end rails, such as the ET-Plus, ET-2000, and the SKT 350 used a feeder chute system whereby an impact by a vehicle into the end terminal would result in the guardrail peeling out and coiling away from the vehicle through the end terminal chute.  The Lindsay X-Lite system, however, was designed so that the guardrail beams would simply slide and telescope upon each other and all come to a stop at the black and yellow end terminal.

    Contact Cohen Milstein

    If you or a loved one has been injured in or died due to an accident involving a guardrail, please contact one of our lawyers listed below. We represent clients across the country in state and federal courts. We would be happy to discuss your accident for the purpose of potential representation. Telephone: 877 515-7955

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