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Turgeon v. Trinity Industries, Inc.

United States District Court, D. New Hampshire

September 5, 2018

Cheryl Turgeon, et al.
Trinity Industries, Inc., et al.

          D. Michael Noonan, Esq. Anthony Carr Esq. Stephanie K. Annunziata, Esq. Timothy John McLaughlin, Esq. Brian T. Kelly, Esq. Asha L. Spencer, Esq. Christopher Queenin, Esq. John C. Fitzpatrick, Esq. Mark Tyler Knights, Esq. David Cates, pro se.


          Paul Barbadoro United States District Judge.

         I must determine in this case whether federal common law should shield a state government contractor from product liability claims if the federal government has reimbursed the state for some or all of the cost of the product that gave rise to the claims.

         Cheryl Turgeon was injured when the car she was driving struck a guardrail end terminal manufactured by Trinity Industries, Inc (“Trinity”). A contractor working for the State of New Hampshire purchased the end terminal from Trinity and installed it on a roadway that is a part of the National Highway System. The federal government ultimately reimbursed the State for the cost of the end terminal pursuant to a program that covers improvements to the National Highway System.

         Turgeon and her husband later sued Trinity to recover for their injuries. Trinity responded with a motion for summary judgment arguing that the federal government contractor defense recognized in Boyle v. United Technologies Corp., 487 U.S. 500 (1988) should be extended to cover the Turgeons' claims because the federal government reimbursed the State for the cost of the end terminal. I decline Trinity's invitation to extend the federal contractor defense to claims against state contractors.

         I. BACKGROUND

         On July 17, 2014, at approximately 10:35 A.M., Cheryl Turgeon was driving alone in her 2013 Dodge Durango, southbound on New Hampshire Route 9 (“NH Route 9”) in Stoddard, NH. For reasons that are not specified in the record, her car drifted to the right, exited the single-lane roadway, and struck head-on the flat, steel face of a guardrail end terminal head-on. Instead of safely absorbing and dissipating her car's energy, as the device was designed to do, the end terminal allegedly malfunctioned and “jammed” at a critical point shortly after impact. Turgeon alleges that the jam was caused by several defectively designed components of the model at issue. The jam, in turn, triggered a rapid chain of events that ultimately resulted in the impalement of the vehicle's driver's side compartment by a jagged piece of folded guardrail. Turgeon's legs were severely injured in the process. She now claims that the accident would not have unfolded as it did had the end terminal been safely designed and tested.[1]

         Trinity manufactured and sold the end terminal at issue under the “ET-Plus” brand name. It was installed at the direction of the New Hampshire Department of Transportation (“NH DOT”) by a private contractor. Prior to the sale of the terminal in 2006, Trinity had sought and obtained an “approval letter” for the terminal from the Federal Highway Administration (“FHWA”). The approval letter signified that the FHWA had reviewed certain design specifications and crash-test reports submitted to it by Trinity, and determined that the ET-Plus was sufficiently “crashworthy” under relevant federal testing standards. As such, the FHWA deemed the ET-Plus “eligible” for federal reimbursement under the Federal-Aid Highway Program (“FAHP”). This meant that, pending further project approval, the NH DOT could have sought federal funding to help pay for the purchase and installation of ET-Plus terminals on NH Route 9 where the accident occurred.

         Trinity contends that the FHWA's continued approval of the ET-Plus under the FAHP constitutes sufficient federal involvement to entitle it to the federal government contactor defense recognized in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). It argues that the FHWA's review and approval of the device through correspondence with Trinity conclusively establishes the elements of the defense as outlined in Boyle, and therefore entitles it to summary judgment on all of the Turgeons' claims. Before addressing Trinity's argument, I first describe the design and relevant mechanics of the ET-Plus and the FHWA's role in administering the FAHP. I then explain the federally accepted testing standards used to assess the “crashworthiness” of equipment like the ET-Plus, and the FHWA's “approval” process for establishing reimbursement eligibility for such devices. Lastly, I discuss the FHWA's review of the ET-Plus and the specific design defects alleged by Turgeon in greater detail.

         A. The ET-Plus & the Federal Highway Administration

         1. The ET-Plus

         The ET-Plus is an energy-absorbing guardrail terminal system installed on the exposed ends of “W-beam” roadway guardrails. The model is widely used on roadways throughout the country. Its general purpose is to mitigate the risks historically implicated when an automobile collides with the end of an exposed or buried guardrail. Generally, it does so by absorbing a vehicle's energy upon impact and dissipating it down the length of the guardrail. Made of steel, the terminal consists of four basic parts: (i) the strike plate, (ii) the impact head, (iii) the extruder throat, and (iv) the feeder channel or “channel chute.” See Apps. A & B. The strike plate is a flat, rectangular surface, with outward protruding edges along its vertical sides, known as “teeth.” It is attached to, and reinforced by, an asymmetrical, quadrilateral-shaped block known as the “terminal head.” The head tapers back from the plate and attaches to the “extruder throat, ” which in turn attaches to the “feeder channel.” The three-foot-long “feeder channel” is an oblong, rectangular structure that attaches to the front of the “W-beam” guardrail to which the entire terminal is affixed.

         In a head-on collision, the strike plate and impact head catch the vehicle's momentum and the entire assembly is designed to slide down the “W-beam” barrier until the vehicle comes to a relatively safe stop. As the terminal's feeder channel slides down the rail, the W-beam guardrail threads through the terminal's extruder throat. The throat flattens the guardrail out of its W-shape and passes it through a curved “exit gap” in the terminal head, pushing or “extruding” it out and away off the side of the road. The process produces a curled ribbon of steel that squeezes out through the exit gap of the terminal alongside the edge of the roadway as the vehicle decelerates to a stop.[2]

         The ET-Plus is the latest model of end terminals manufactured and sold by Trinity. It was preceded by the “ET-2000.” See Apps. C & D. Both models function in the same general manner. See Doc. No. 46-7 at 12-19 (Expert Report of Dr. Marthinus van Schoor, Dec. 8, 2017). The ET-2000 was designed and developed by the Texas A&M Transportation Institute (“TTI”) at Texas A&M University in the late 1980s and was manufactured and sold by Trinity from 1992 to 2004 pursuant to an exclusive licensing agreement with TTI. Doc. No. 46-8 at 28-33 (Dep. Of Brian Smith, Feb. 22, 2018). In 1999, TTI began to develop the ET-Plus. See Doc. No. 46-8 at 34, 37.

         The ET-Plus was generally designed to function like the ET-2000 and closely resembles its predecessor-model, except for several specific design features that were modified between the two models. The strike plate on the ET-Plus consists of a narrower, 15-inch-wide rectangle, as compared to the ET-2000's 20-inch-wide square plate. The newer strike plate also abandons use of the horizontal “teeth” protruding from the top and bottom edges of the ET-2000's plate, leaving only vertical teeth aligning the sides for the ET-Plus. Additionally, the shape and position of the ET-Plus's impact head resembles an off-centered, asymmetrical quadrilateral favoring the side away from the road, whereas the ET-2000's head resembled a symmetrical triangle, centrally aligned with the axis of the feeder channel. See Apps. B & D. Among other changes, the exit gap, i.e. the available space for the flattened guardrail to slide through and exit the terminal head, was narrowed from 1.5 inches (ET-2000) to 1 inch (ET-Plus). See Doc. No. 46-7 at 32-34 (Dr. van Schoor Expert Report). In 2004, the ET-Plus was further modified to reduce the width of the feeder channel from five inches to four inches. Doc. No. 46-8 at 82-84 (B. Smith Dep.); see Doc. No. 46-9 (Email from S. Brown to S. Malizia, Nov. 9, 2004). In all, these changes reduced the weight of the ET-Plus by roughly 100 pounds.

         Both the ET-2000 and the ET-Plus were originally designed to be used on 27-inch-high guardrails. At some point after September 2005, Trinity began selling a version of the ET-Plus for use on 31-inch-high guardrails and it is that version of the product that is at issue in this case.

         2. The Federal-Aid Highway Program & the FHWA

         State expenditures on end terminals like the ET-Plus are often eligible for federal reimbursement under the FAHP, as set out in 23 U.S.C. § 101, et seq. The FAHP is a “federally assisted State program, ” see 23 U.S.C. § 145, that enables states and localities to seek and obtain federal financial assistance for a variety of projects related to the construction, maintenance, and operation of the National Highway System (“NHS”). See 23 U.S.C. § 101, et seq.; City of Cleveland v. Ohio, 508 F.3d 827, 832 (6th Cir. 2007). The NHS encompasses a vast network of public roadways that serve broad, national interests. See 23 U.S.C. § 103(b). This includes the majority, if not entirety of NH Route 9.[3] See id. The FAHP is administered by the FHWA, an agency within the U.S. Department of Transportation. See 49 U.S.C. § 104; 49 C.F.R. §§ 1.85(a)(1), 1.84. The FHWA is empowered “to prescribe and promulgate all needful rules and regulations for the carrying out of [the FAHP], ” see 23 U.S.C. § 315; 49 C.F.R. § 1.85, but states ultimately retain “their sovereign rights . . . to determine which projects shall be federally financed.” 23 U.S.C. § 145(a); City of Cleveland, 508 F.3d at 832. To avail itself of federal assistance, each state must at least maintain a transportation department (“State DOT”) capable of performing certain functions. 23 U.S.C. § 302 (West 2018); see 23 C.F.R. § 1.3. The FHWA oversees certain activities of State DOTs electing to participate in the program, and it ultimately authorizes federal reimbursements by ensuring that projects seeking assistance comply with relevant federal law. See Lathan v. Brinegar, 506 F.2d 677, 682 (9th Cir. 1974) (“[P]rimary responsibility for highway planning, design and construction rests on state highway departments, aided by federal assistance.”). It may withhold distribution of FAHP funds for “any cost which is not incurred in conformity with . . . [its] regulations . . . policies [or] procedures.” 23 C.F.R. § 1.9; see 23 U.S.C. § 315 (conferring rulemaking authority “needful . . . for the carrying out of the provisions of [Title 23]”); 23 C.F.R. §§ 1.32 (FHWA authority to issue directives), 1.36 (FHWA authority to withhold federal funds).

         The funding process is rather complex and generally occurs through several stages of federal approval. State of La. ex rel. Guste v. Brinegar, 388 F.Supp. 1319, 1321 (D. D.C. 1975). First, specific sums of money are authorized by Congress to be appropriated from the Highway Trust Fund each fiscal year and made available to the FHWA for administrative expenses. See 23 U.S.C. § 104(a)(1). The FHWA is statutorily directed to distribute a “base apportionment” from that amount to each state in accordance with a statutory formula. See id. § 104(b), (c); 49 C.F.R. § 1.85 (delegating Secretary's authority). Other statutory provisions then dictate how that apportionment must be distributed among six component programs within the FAHP. See 23 U.S.C. § 104.[4] Specifically, they prescribe the priority of distribution among programs, the method for calculating specific apportionment amounts, and formulae to determine the respective federal and state shares for any given project. See 23 U.S.C. §§ 104 (apportionment), 120 (federal share payable).

         For each proposed project seeking federal financing, the State DOT is required to submit “to the [FHWA] for approval such plans, specifications, and estimates . . . as the [FHWA] may require.” id. § 106(a); see id. § 109 (charging the FHWA with ensuring that plans and standards adequately serve their intended purpose, and providing further instruction for their development). The FHWA must then act on that submission, and the two entities enter into a “project agreement . . . formalizing the conditions of the project approval.” id. § 106(b). Such project agreements are required before payment to states can be made. See id. § 121. The execution of a project agreement is “deemed a contractual obligation of the Federal Government for the payment of the Federal share of the cost of the project.” id. § 106(c); see also 23 C.F.R. §§ 630.102-630.112 (FHWA regulations pertaining to project agreements).

         It is uncontested that the NH DOT's installation of guardrail end terminals on NH Route 9 generally would have been an “eligible project” for federal funding. Federal funds would not be committed to such a project, however, until the FHWA approved relevant “plans, specifications, and estimates” and the two government entities executed a “project agreement” pursuant to 23 U.S.C. § 106. See Movement Against Destruction v. Volpe, 361 F.Supp. 1360, 1380 (D. Md. 1973), judgment aff'd, 500 F.2d 29 (4th Cir. 1974) (discussing a since repealed and amended provision of 23 U.S.C. § 105 pertaining to states' “program[s] for projects, ” which imposed similar requirements contained in the current regulations pertaining to statewide transportation improvement programs (“STIP”), 23 C.F.R. § 450.200, et seq.).

         In 2006, Trinity sold an unspecified number of ET-Pluses end terminals to C.W. Sliter & Sons, a highway engineering and construction company based in New Hampshire. C.W. Sliter & Sons, in turn, contracted with the NH DOT to install those ET-Pluses onto guardrail systems throughout the State, including the portion of NH Route 9 where the accident occurred. See Doc. No. 46-8 at 36, 140 (B. Smith Dep.). Absent from this record, however, is any evidence of “project agreement” between the FHWA and the NH DOT pertaining to these installations. Instead, Trinity offers an “approval letter” that it received from the FHWA on September 2, 2005, see Doc. No. 32-14 at 2 (FHWA Approval Letter, Sept. 2, 2005) and a reaffirmance of that approval dated June 17, 2014. See Doc. No. 32-13 at 2 (FHWA Memorandum, June 17, 2014). Both documents reflect the FHWA's determination, after review of certain materials submitted by Trinity, that the ET-Plus was crash tested in compliance with federal testing standards and was found to be sufficiently “crashworthy.”

         B. Federal Testing Standards (NCHRP Report 350) & FHWA Approval

         At all relevant times, the FHWA determined the “crashworthiness” of highway safety products based exclusively on the testing standards set forth in the National Cooperative Highway Research Program's (“NCHRP”) Report 350 (“Report 350”). Published in 1993 by the Transportation Research Board of the National Research Council, Report 350, by its own terms, provides “recommended procedures for evaluating the safety performance of various highway safety features.” See Doc. No. 46-6 at 5-7 (Report 350). End terminals, like the ET-Plus, are one of several features covered. See id. at 27. When Report 350 was published in 1993, it purported to “represent a comprehensive update of the procedures for safety performance evaluation, ” see id. at 6, according to the then-existing state of the art. See id. at 5, 7. Its recommended “procedures are presented in the form of guidelines that describe how a feature should be tested and evaluated.” Id. at 11. Among other areas covered, it prescribes optimal parameters and conditions for testing end terminals, data acquisition requirements, evaluation criteria, and other guidelines pertaining to test documentation, implementation, and evaluation. See Doc. No. 46-6 at 8-10 (Report 350); see also United States ex rel. Harman v. Trinity Indus. Inc., 872 F.3d 645, 648 (5th Cir. 2017). A more detailed examination of its content will be discussed below.

         The FHWA's formal reliance on Report 350 grew out of the Intermodal Surface Transportation Efficiency Act of 1991 (“ISTEA”). See PL 102-240, Dec.18, 1991, 105 Stat 1914. ISTEA directed the Secretary of Transportation to “initiate a rulemaking proceeding to revise the [FAHP] guidelines and establish standards for installation of roadside barriers and other safety appurtenances, ” including end terminals. PL 102-240, § 1073 (23 U.S.C. § 109 note); see id. § 1049 (directing development of report on “crashworthiness” of such features). Consequently, on July 16, 1993, the FHWA promulgated a final rule adopting Report 350, which had been released that same year, “for guidance in determining the acceptability of roadside barriers and other safety appurtenances for use on [the NHS].” Design Standards for Highways; Requirements for Roadside Barriers and Safety Appurtenances, 58 Fed. Reg. 38, 293 (Jul. 16, 1993) (codified at 23 C.F.R. Part 625). In so doing, the FHWA “expect[ed] to advance the state-of-the-art in the evaluation and selection of traffic barriers to the point where one [could], with input needed from crash tests, analytically compare the merits . . . of alternative designs for use under specified conditions.” 58 Fed. Reg. at 38, 296. The rule became effective on August 16, 1993, and a citation to Report 350 was thereafter added to the “Guides and References” portion of the Code of Federal Regulations, listing the standards as acceptable guidance. 58 Fed. Reg. at 38, 293; United States ex rel. Harman, 872 F.3d at 654 n.31.

         Following a several-year grace period, on July 25, 1997, the FHWA issued a “policy memorandum” implementing a requirement for compliance with Report 350 (“July 1997 Policy Memo”).[5] It provided that, effective October 1, 1998, “all new or replacement safety features on the NHS covered by the guidelines in the NCHRP Report 350 . . . [and installed] by State forces . . . are to have been tested and evaluated and found acceptable in accordance with the guidelines [therein].” See FHWA July 1997 Policy Memo, supra note 5; Doc. No. 32-11 at 2.

         1. Report 350

         By its own terms, Report 350 “contains recommended procedures for evaluating the safety performance of various highway safety features.” See Doc. No. 46-6 (Report 350) at 5. It prescribes testing conditions, evaluation criteria, and reporting requirements to aid developers in preparing and making safety assessments for covered products. See FHWA July 1997 Policy Memo, supra note 5. The 74-page document is subdivided into six chapters dedicated to (i) “test parameters, ” e.g. compatible soils, vehicles, and installation details for executing tests; (ii) “test conditions” for various types of features; (iii) “data acquisition” in preparing reports; (iv) testing “evaluation criteria, ” i.e. “structural adequacy, occupant risk, and post-impact vehicular trajectory”; (v) “test documentation”; and (vi) “implementation and in-service evaluation” for post-installation testing. See Doc. No. 46-6 (Report 350) at 8-10. Among other things, the report aims to provide “a basis on which user agencies can formulate performance specification for safety features.” Id. at 13. The document summarizes its “purpose and scope” by stating the following:

Procedures presented herein involve vehicular tests to evaluate the impact performance of permanent and temporary highway safety features. Performance is evaluated in terms of the degree of hazard to which occupants of the impacting vehicle would be exposed, the structural adequacy of the safety feature, the hazard to workers and pedestrians that may be behind a barrier or in the path of debris resulting from impact with a safety feature, and the post impact behavior of the test vehicle. Other factors that should be evaluated in the design of a safety feature, such as aesthetics, costs (initial and maintenance), and durability (ability to withstand environmental conditions such as freezing and thawing, wind-induced fatigue loading, effects of moisture, ultraviolet radiation, etc.) are not addressed.

Doc. No. 46-6 at 13 (Report 350). In other words, the report is concerned with testing standards rather than design standards or specifications.[6]

         Report 350 outlines ten different types of tests for end terminals that are “designed to evaluate one or more of [three] principal performance factors: structural adequacy, occupant risk, and post-impact behavior of [the] vehicle.” Doc. No. 46-6 at 25 (Report 350). The guidelines also envision three different “Test Levels” at which individual tests can be conducted. See id. at 29-31 & Table 3.2. The different levels correspond to different classes of roadways or areas on which a given device may be installed, e.g. rural collector, urban street, freeway, etc. See id. at 13, 26-31 (Table 3.1 & 3.2). The three levels differ according to “impact conditions, ” i.e. speed of the test vehicle and impact angle, and “the type of vehicle” being used in the test, ranging from a small car to a fully loaded truck. See id. at 13. Test Level 3, for instance, is the level at which “most crash-tested safety features in use on U.S. highways have been qualified.” Id. at 13. Report 350 recommends seven different tests for end terminals such as the ET-Plus to determine crashworthiness at Test Level 3, with variations for four of the seven that are considered “optional.” See id. at 31; see also Doc. No. 32-14 at 3 (FHWA Approval Letter, Sept. 2, 2005).

         The parameters for each type of test are prescribed by the report in relatively precise detail. For example, “Test 30” is “conducted with the vehicle approaching parallel to the roadway with the point of impact to the left or right of the vehicle's centerline.” See Doc. No. 46-6 at 27 (Report 350). Test 30 requires that “[t]he vehicle should be offset to the most critical side, that is, the side which will result in the greatest occupant risk during and subsequent to impact, ” and provides some guidance for making that determination. See Id. at 27 (Report 350). By contrast, “Test 31” requires impact to be “at the vehicle's centerline.” Id. (emphasis added). Both tests are designed to evaluate occupant risk and vehicle trajectory criteria. See id. at 27-28. Testing at Level 3 for either test requires impact to occur at a zero-degree angle while traveling 100 km/hr, but Test 30 utilizes a “small car” as a test vehicle whereas Test 31 utilizes a “pickup truck.” See id. at 20 (defining 820C and 2000P vehicles), 31 (Table 3.2). “Test 32” and “Test 33” entail the same conditions as those just discussed but at a nominal impact angle of 15 degrees instead of zero. Id. (Table 3.2). The six remaining tests vary in a similar manner, testing different aspects of the terminal feature under slightly different conditions to evaluate different performance factors. See id. at 27-29.

         2. FHWA “Acceptance/ Eligibility Letters”

         Since as early as 1997, it has been the practice of the FHWA, “[a]s a service to . . . state and local highway agencies, and industry, ” to “review crash test reports and other supporting documentation” submitted by developers and issue “acceptance letters to developers of crashworthy hardware.” See FHWA July 1997 Policy Memo, supra note 5 (Attachment); Doc. No. 32-11 at 4. Pursuant to that service, the July 1997 Policy Memo attached “Submission Guidelines” for the purpose of “better describe[ing] what must be submitted by those wishing to take advantage of [the FHWA's] service.” Doc. No. 32-11 at 3 (July 1997 Policy Memo). The FHWA does not conduct testing itself, rather it requires ...

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