The Madison County Record Dec. 4, 2014, 11:57am

Attorney David Cates of Swansea sued guardrail maker Trinity Industries on behalf of Macon and Hamilton counties in federal court on Nov. 26, proposing to replace rails statewide and award damages to all counties.

Cates, son of Illinois Fifth District appellate judge Judy Cates, wrote that Trinity sold an unsafe and unapproved rail end treatment and counties paid for thousands of them.

He proposed a class action for all 102 Illinois counties.

His complaint relied on a $175 million verdict that Texas jurors reached against Trinity on Oct. 20, after trial over alleged deficiencies in guardrails.

Jurors found Trinity filed false claims with the government, but the damages they assessed would flow to “whistle blower” Joshua Harman, who sued on behalf of the government.

U.S. District Judge Rodney Gilstrap of Marshall, Texas, signaled his unease with the result eight days later, by ordering mediation.

He told the mediator to invite and include the Federal Highway Administration, which was not a party to the case, and the Department of Justice, which didn’t participate in the case.

Gilstrap set a Dec. 31 deadline. Meanwhile he has not entered judgment on the verdict.

He also has under advisement defense motions for judgment as a matter of law.

Though the verdict hangs in suspense, it motivated the Illinois Department of Transportation to ban Trinity’s ET-Plus system on active and future contracts until further notice.

Cates wrote in his complaint that the department would not allow ET-Plus systems “on current or future contracts,” omitting the part about further notice.

Trinity argued in Texas that the Federal Highway Administration never declared its systems deficient or removed them from its list of approved products.

Gilstrap started trial last summer but declared a mistrial.

Trinity petitioned the Fifth Circuit Court of Appeals in New Orleans for a writ to keep him from starting another trial.

Fifth Circuit judges denied mandamus but warned Gilstrap of danger.

“This court is concerned that the trial court, despite numerous timely filings and motions by the defendant, has never issued a reasoned ruling rejecting the defendant’s motions for judgment as a matter of law,” they wrote.

They wrote that a June 17 letter from the Federal Highway Administration seemed to compel a conclusion that the product sufficiently complied with safety standards.

“[A] strong argument can be made that the defendant’s actions were neither material nor were any false claims based on false certifications presented to the government,” they wrote.

Gilstrap proceeded to trial anyway, and now he wrestles with the result that the Fifth Circuit tried to prevent.

On Nov. 25, he wrote to the Fifth Circuit that he would issue a written, reasoned opinion on Trinity’s motions with all possible expediency.

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