Road Design

Manufacturer of dangerous Trinity ET Plus guardrails ordered to unseal entire court files

An image from the Harman v. Trinity complaint. (Courtesy credit:

An image from the Harman v. Trinity complaint. (Courtesy credit:

Yesterday, a court order to unseal the entire court file in the massive whistleblower case against Trinity Guardrails (maker of now infamous ET Plus guardrails) will likely save many lives. This file contains literally hundreds of sealed pleadings and exhibits relating to a dangerous highway guardrail that’s been linked to dozens of deaths and injuries.  The court also held that all of the testimony and exhibits from a recent trial of the case must also remain open to the public, effective immediately.

Below is an excerpt from the Public Justice website*:

The [court order to unseal all of the files for public access] is so important in this case. A major highway guardrail manufacturer, Trinity, will not be able to hide the fact that it kept its changed guardrail design from the federal government and that that guardrail design is unsafe. The victory also means that the public has access to facts that will be critical for making the case that the federal government should withdraw its approval of these guardrails. And it’s ammunition for states seeking to phase out and remove these lethal guardrails from our highways.

Trinity was sued for defrauding the federal government by changing the design of its guardrail end terminals, not conducting appropriate crash tests on the new design, and not telling the federal government about the changes—meaning that the guardrails remained on the Federal Highway Administration’s list of approved guardrails. A jury found that Trinity defrauded the government to the tune of $175 million.

Because of the design change, when the terminal is hit by a car, instead of absorbing the energy of the crash and slowing the vehicle, the guardrail jams and turns into a potentially lethal spear. Drivers and their passengers have been decapitated, their limbs have been severed, and they have been stabbed by these guardrails. A study by Public Justice client, The Safety Institute found that the redesigned Trinity guardrail was 2.86 to 3.95 times more likely to be involved in a lethal accident and 1.36 to 1.95 times more likely to be involved in an accident with serious injury than Trinity’s older design.

In the case against Trinity, huge swaths of court records—including crash test documents—were filed under seal. On behalf of The Safety Institute and the Center for Auto Safety, consumer protection attorneys sought to intervene to unseal the records. Although our motion to intervene was denied, our efforts to unseal the records helped to convince the court to do the right thing.

*NOTE: Stritmatter Kessler Whelan partner Brad J. Moore currently serves as President Elect of Public Justice, the country’s largest public interest law firm.



Pillow talk over airbags: Shacking up in a hotel to talk Takata

Takata's refusal to expand national recall spurs on big legal fight w/US.

Takata’s refusal to expand national recall spurs on big legal fight w/US.

Takata, a Japanese airbag manufacturer, whose executives were questioned in House & Senate hearings a couple weeks ago, remains defiant in expanding any recall of its airbags. Its faulty airbags have been ruled as the cause of at least five deaths and about 50 injuries. However, Takata refused to comply with the National Highway Traffic Safety Administration’s request to issue a national recall.

The Detroit News reports that NHTSA will bring Ford, FCA US and BMW to court if necessary, compelling the automakers to recall 5 million affected vehicles along with those already recalled.

The first act in bringing the named parties to trial is a formal demand letter issued to all concerned. Upon refusal, the NHTSA will file a suit against each party in U.S. District Court, a process that could last for months, if not years. NHTSA agency’s deputy administrator David Friedman explained in an interview, “This is a serious safety issue, and Takata needs to move forward. If Takata fights us all the way to the end, I want to be able to walk into a courtroom with as close to a slam dunk as I can get.”

In the meantime, Toyota, Honda, GM and seven other car makers recently met in a hotel conference room in a Detroit area airport hotel to address the risky airbags. As Takata has dug in its heels, the automakers are understandably concerned aboutthe industry wide issue that calls for a “coordinated, comprehensive testing program” to identify exactly what are the problems with the airbags. The automakers and NHTSA are conducting independent investigations.

Doesn’t look like this problem with dangerous Takata air bags is going to blow over for quite some time (pardon any unintended puns).

Seattle supposedly ranks #1 for pedestrian safety. Really?

Insurance company's study cites Seattle as safest for pedestrians.

Insurance company’s study cites Seattle as safest for pedestrians. (Credit: Mike Siegel/Seattle Times)

According to a Liberty Mutual study, Seattle is at the top of the list for the safest city in the country for pedestrians. Thanks to additional infrastructures like the wonderful new pedestrian walkway about a block from SKW’s building, residents are safer. The study cited Boston as the second safest among 25 cities studied. D.C. followed as #3 safest with Detroit at the very bottom as the most dangerous. Note that the study is based on “city statistics and residents’ and commuters’ perceptions of safety” between 2005 – 2010. People! This suggests that the “data” used is dated and doubtful. Regardless, here’s the insurer’s list:

Top 15 Safest U.S. Cities for Pedestrians
  1. Seattle, Wash.
  2. Boston, Mass.
  3. Washington, D.C.
  4. San Francisco, Calif.
  5. New York, N.Y.
  6. Portland, Ore.
  7. Pittsburgh, Pa.
  8. Minneapolis, Minn.
  9. Chicago, Ill
  10. Atlanta, Ga
  11. Denver, Colo.
  12. Philadelphia, Pa.
  13. Baltimore, Md.
  14. Columbus, Ohio
  15. Los Angeles, Calif.

Yes, I admit that I read the study with a cynical eye. The age and skewed nature of the data yield misleading conclusions. Remember my recent rant about distracted pedestrians? A more credible study is the one cited in the Seattle Times, which noted that 1/3 of us are dangerous pedestrians because of high tech distractions such as smartphones, iPods, etc.

At Stritmatter Kessler Whelan, we represent an increasing number of seriously injured pedestrians or the family of those wrongfully killed when struck as a pedestrian. The higher instance of catastrophically injured pedestrians that are calling belies Liberty Mutual’s study, although of course our information is a tiny sample based on a wide array of factors (perhaps it helps that we’re located in Lower Queen Anne, near a burgeoning hub of pedestrian activity?).

Well, at least the insurance company lists these commonsense steps to stay safe when walking:


  • Avoid using your phone while walking. Keep texting, emailing or browsing the Internet to a minimum while walking, and always put down the phone when crossing the street. Avoid the use of headphones and loud music while walking and crossing the street to ensure you can hear motorists approaching.
  • Observe all pedestrian traffic safety rules. Never jaywalk; use sidewalks and designated crosswalks, and always wait for the walk sign before crossing at lights.
  • Look both ways! It’s the first rule children are taught, yet adults often forget it. Even when there is a walk signal or stop sign, look both ways and be aware when crossing the street.
  • Make yourself visible to motorists. Wear light colored clothing and outerwear with reflective patches so drivers can see you on the road. If your children walk to school, make sure their backpacks and shoes have reflective patches. If you must walk on a roadway, walk on the proper side of the street so you’re facing traffic.

Second Avenue Redux: Solving the mystery of those curved arrows…

In a previous post, I asked if anyone knew what those curved arrows at the Madison intersection signified. Bike Man Dan (our Dan Laurence, who is an experienced cyclist, when he’s not busy representing injured clients as an attorney) wondered too, when he rode his bike down the redone 2nd Ave corridor. Certainly, two arrows from opposite directions pointing to one spot was not self-explanatory to me, Dan or anyone else I asked.


Strange curved arrows befuddle and distract cyclists, pedestrians & drivers.

Strange curved arrows confuse rather than clarify.

So, I searched online and found the following:

Seattle DOT offers this postcard that says it's "What you need to know." Really?

Seattle DOT offers this postcard that says it’s “What you need to know.” Really?

Hmm… “What you need to know.” Really? More like, “What you need to know is not always clear and certainly not contained on this postcard.” At least the postcard (courtesy of Seattle taxpayers) gave me an important clue by including the term Bike Box*. Thank you for that much. (Really, I’m not a cranky person, but it amazes me how this important info is laid out in such an unorganized and cryptic way. Even after a tragic and needless death of a cyclist on this specific stretch of road.)

So, I searched SDOT’s site for info about “bike box.” Lo and behold, I found this:

A whole page is devoted on SDOT's website to Bike Boxes.

A whole page is devoted on SDOT’s website to Bike Boxes.

Look carefully at the Bike Box on the screen shot of the SDOT webpage. Does it resemble those curved arrows? I will go out on a limb here and say, “No!” Why make something so important to our safety perplexing and wildly inconsistent? Aren’t these based on some uniform codes?

From the patched together bits of information, I now understand the Bike Box as the designated area for cyclists to move ahead of cars at an intersection. A draft Final Report for the City of Portland regarding Bike Boxes at Signalized Intersections is included as a reference at this SDOT page.

Stay tuned. A future blog post will include excerpts from Bike Man Dan‘s trek on the new “Protected” Bike Lane on 2nd Avenue. Hint: Cyclists should not feel protected.

*Bike Box is only capitalized in this blog post to emphasize that this is a term that SDOT assumes we know all about.

2nd Ave Corridor & downtown Seattle need to do more for bicycle safety

Email if you know what these curved arrows mean!

Email if you know what these curved arrows mean!

A little more than three months after the tragic and preventable death of cyclist/new mother/attorney Sher Kung, more is needed for bicyclist safety on the treacherous Second Avenue corridor in downtown Seattle.  Our own Bike Man Dan took to the roads recently on his bike, braving this stretch on 2nd Ave. We will share with you excerpts from that bike ride and let you decide where you might see additional room for improvement.

In the meantime, do you know what the heck these curved arrows in the above photo mean? Send us your insights, wisdom, comments or best guesses to

Seattle’s Second Avenue Bike Traffic Triples

About a week after the tragic death of Sher Kung, a cyclist who was hit by a left-turning truck on 2nd Avenue, the new protected bike lane with new traffic signals were installed on that infamous corridor in downtown Seattle.

The day the new bike lane was unveiled, I had a chance to drive down it. The exact intersection where Sher was struck confused almost every driver, including me. While the rest of the lanes had a green light, the left turn lane had a red arrow which flashed quietly in the low left corner of the new traffic signal. Distracted by the heaps of flowers and photos that memorialized that fatal spot, I was prepared to make a left turn despite the red arrow. A City worker alerted me to the fact that there was a new signal, as he pointed to the red arrow. Confusing, to say the least. Not to mention–there were dozens upon dozens of small aluminum pinwheels every several feet leading up to that stretch on the road, which added to the drivers’ distraction.

2nd_Ave_counts1Regardless, the bike traffic has tripled on Second Avenue. Looks like cyclists feel more confident that they can commute safely there. But, according to the Seattle Times blog, a young woman was almost hit during morning rush hour on Sept. 16th, when “she failed to notice the red bike icon, and rode downhill near a left-turning car at Spring Street. She shrugged as if to confess her mistake, and continued south.  A couple minutes later, a driver stopped for the red arrow, then illegally made the left turn.”

The Seattle DOT shot an instructional video along Second Avenue last week and disbursed about $250 in privately-funded gift certificates to drivers and cyclists who obeyed the new traffic signals. The real reward: A safer bike route and fewer bike accidents.

In Memoriam Sher Kung: Sharp legal mind…warm and witty soul.

The past week or so I’ve been focused on the start of school for our little one (kindergarten, so this is all new to me!) and the piles of priorities at the office.  So, when I heard about another cyclist who was killed in Seattle, I didn’t catch the name. But tonight I pieced things together when I saw an old photo of Sher Kung on Seattle Times with the headline, “Dead cyclist was new mom, well-regarded attorney.”  Held my breath for a moment. Read on, not wanting to believe what I was reading. Then, I finally understood why a beloved friend had posted a wonderful photo of her and Sher pictured here.

Sher Kung with friend Nika. Sher was killed when riding her bike in the infamous 2nd Avenue corridor.

Sher Kung with friend Nika. Sher was killed when riding her bike in the infamous 2nd Avenue corridor.

Four years ago, I met Sher through Nika over pizza and beers. We hit it off instantly. She made me laugh with her sharp wit and similar politics.

Sher was 31 when she lost her life. I’m really at a loss for words. My main purpose here is to pay a small tribute to a warm, wise, and bright woman.

Sher had her entire life in front of her. She had already done so much at the ACLU, challenging the Don’t Ask Don’t Tell policy, then at Perkins as a litigator.

To Sher’s family and closest friends: My deepest sympathies go to you.  To those of you who did not know her, please remember to stay safe especially when riding your bike in Seattle. Please also consider donating, after reading this story on The Stranger.

Rest in peace, dear Sher.

Healthy Aging After a Catastrophic Accident

My parents are in their early 70’s. They hike up mountains, golf daily, walk for hours, garden, and travel constantly. Sometimes, I get tired just hearing what they’re up to. But I’m pleased that they’re healthy and so physically capable. But it is more difficult to age in a healthful manner for some over 65 years old–particularly those who have sustained catastrophic injuries.

Lan Remme works harder to age while staying healthy. Pictured with wife Laura. Photo credit: Ruby De Luna

Lan Remme works harder to age while staying healthy. Pictured with wife Laura. (Photo credit: KUOW Photos/ Ruby De Luna)

A local NPR reporter for KUOW, Ruby De Luna, examines the aging population with disabilities in “Aging With Grace For Boomers With Disabilities.”  Ms. De Luna’s story centers on Lan Remme, a recent bicycle injury client that Stritmatter Kessler Whelan attorneys represented.  Keith Kessler, one of the SKW lawyers on Remme’s team comments, “Lan is one of those who has handled such adversity with grace and wisdom.”

His grace and wisdom will help and so will his optimism. Ms. De Luna  reveals how people with physical disabilities, such as 67 year old Lan, face greater obstacles in aging gracefully.

A University of Washington study takes a closer look at this segment of our population with the goal of assisting them to lead healthy lifestyles. After SKW bike injury client Lan Remme hit his bicycle wheel against a defective sidewalk on the Montlake Bridge, he lost use of his legs and must now use a wheelchair to get around.

In Ms. De Luna’s interview, Lan explains that he would love to maintain his independence, despite his physical limitations. He tells Ruby,“Anytime that I can head out someplace or do something on my own without relying on someone, it’s a huge boost of independence.  But, he explains, “The thing about being in a wheelchair is that it makes you a person 50 times more dependent on others than you would be normally.”

Remme is not going to let his disability get in the way of aging gracefully. He was physically active (cycled in many events in the years and months before his tragic accident) before he was wheelchair bound. Now, he will just work that much harder to stay physically fit. Laura Remme, Lan’s wife, is a model partner in helping him navigate the rough waters. He’s starting yoga and who knows what else he will tackle in the coming years.  We salute Lan Remme for his fortitude and determination.

Listen to Ruby De Luna’s story and interview of Lan Remme.

Mayor Announces Some Good News for Seattle Cyclists

Projects like the Puget Sound Bikeshare are helping grow the number of cyclist commuters,

Projects like the Puget Sound Bikeshare are helping grow the number of cyclist commuters,

Seattle cyclists have something to look forward to this month. We at SKW are thrilled to see anything that may reduce the number of injured bicyclists. Cyclists whom we’ve represented were all skilled on their bikes. However, they sustained serious injuries because of either flawed roads or negligent drivers.

But cyclists in our city are undaunted. Among all of the nation’s major cities, Seattle is ranked fifth for bike commuters and seventh for walking commuters. Projects like the Puget Sound Bikeshare are helping grow the number of cyclist commuters.

Celebrating Bike to Work Month, this past Tuesday Mayor Ed Murray announced that a pilot project for the 2nd Avenue Protected Bike Lane will be in place before the launch of bike share.

Second Avenue has been cited as an especially dangerous path for cyclists. As Rutgers professor and bike evangelist, John Pucher, pointed out last year to the Seattle Times reporter Lindblom, “I’d say [2nd Avenue is] as bad as a major avenue on Manhattan. I think it’s maybe even worse, because I think here, there’s more left and right turns, there’s more doors that are being opened, more cars that are trying to park.”

Seattle’s pilot bike lane project will hopefully provide for safer trips for those biking around downtown– whether they are on the new bike share bikes or on their own bicycles.

Part of the funding of the pilot project is from the Green Lane Project,which selected Seattle as one of six cities to receive financial, strategic and technical assistance to install protected bike lanes.

If you want to learn about the City’s effort to build protected bike lanes on 2nd and 4th Avenues and other bike-ped improvements around the City, join others at the Cascade Bicycle Club’s Downtown Policy Ride. The Policy Ride will end at a Bike Happy Hour at Von Trapp’s near Capitol Hill.

According to a recent King5,com article,  Seattle area bike commuting has risen from 1.9 percent in 2000 to 3.4 percent.  Biking to work has jumped by 60% in the U.S. over the last decade.

NOTE: This blog post is excerpted from SKWBikeLaw’s blog.


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