Court Enter’s $663,360,750.00 Judgment for Guardrail Whistleblower

DurretteCrump is proud to have played a major role in achieving a widely publicized multi-million dollar verdict in favor of one of its clients.  On June 9, Judge J. Rodney Gilstrap, in United States of America ex rel. Joshua Harman v. Trinity Industries, Inc. and Trinity Highway Products, LLC (Case No. 2:12-CV-00089-JRG,  pending in the United States District Court for the Eastern District of Texas (Marshall Division)), rejected the defendants’ post-trial motions and entered final judgment in favor of the qui tam plaintiff, as shown in the initial attachment above.  Judge Gilstrap awarded a total of $663,360,750.00 in (i) damages that were trebled and (ii) civil penalties.

Because the Relator, Joshua Harman, a resident of Sword’s Creek, Virginia, proceeded without the benefit of a federal intervention, the Court awarded him 30% of whatever will be recovered—which is the maximum percentage permitted under the federal False Claims Act.

In addition, Judge Gilstrap awarded attorneys’ fees of $16,535,035.75; expenses of $2,300,000.00; and taxable costs of $177,830.00.

 The Trinity defendants (“Trinity”) make and distribute guard rail end terminals that are positioned at the end of guard rail installed on the sides of the nation’s highways and secondary roads, including in Virginia.  Such products must be approved by the Federal Highway Administration (“FHWA”) in order for states buying and using this hardware to be reimbursed by the federal government.  Non-approved terminal heads are not eligible for such reimbursement.

 After seeking and receiving FHWA approval, Trinity made cost-saving changes to the product that the jury determined were (i) material and (ii) intentionally concealed from the FHWA.  Nonetheless, reimbursements continued for years afterward.  Upon discovering what he thought to be a violation of the law, Mr. Harman filed his qui tam lawsuit.

This case has made national and regional news for many months, with various local broadcast network affiliates featuring stories of accidents in their geographic areas resulting in grim personal injuries to vehicle occupants.  Instead of causing the guard rail itself to extrude away from a vehicle striking the terminal, the heads occasionally “lock up.”  As a direct result, the guard rail spears an occupant like a jousting pole.  There have been several deaths and critical injuries.

DurretteCrump PLC has served as part of Mr. Harman’s litigation team.  Wyatt B. Durrette, Jr. has led the effort for this firm, with assistance from Barrett E. Pope, Debbie Seidel, and J. Buckley Warden IV.  Upon being brought into the case, the firm arranged—through  our prior associations—to enlist Boies, Schiller & Flexner LLP, who they served as lead trial counsel.  We have collaborated with the Boies attorneys, as well as with counsel who assisted locally, throughout the entire process—from just after the unsealing of the original whistleblower complaint to the entry on June 9, 2015 of final judgment in favor of Mr. Harman and the United States on the jury’s verdict.  The firm expects that Trinity will file an appeal with the Fifth Circuit.

Meanwhile, the Commonwealth of Virginia has intervened in and is pursuing a parallel qui tam case against Trinity pending in the City of Richmond Circuit Court.  Filed by Mr. Harman, who is again represented by DurretteCrump and other attorneys, the suit seeks to recover Virginia’s damages (based on state expenditures on the product) apart from those suffered by the federal government.

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