The Madison County Record Mar. 5, 2015, 7:33am

St. Clair County has replaced Hamilton County as leader of a class action that David Cates of Swansea filed against a highway guardrail manufacturer.

Cates, son of Fifth District appellate judge Judy Cates, dropped Hamilton County from his federal suit against Trinity Industries in February.

He amended a complaint he had filed last November, writing that St. Clair County came to court through state’s attorney Brendan Kelly.

Hamilton County state’s attorney Justin Hood did not answer a call about his county’s withdrawal on March 4, due to a snowstorm that closed the courthouse.

Macon County, second plaintiff in the original complaint, retains that position in Cates’s new complaint.

Cates claims Trinity concealed defects on terminals of its ET-Plus rails.

He seeks an injunction requiring replacement of ET-Plus rails on county roads throughout the state.

He seeks damages to be determined at trial.

Trinity has asked District Judge David Herndon to stay the proceedings, arguing that identical issues remain pending at federal court in Marshall, Texas.

In that case, Joshua Harman sued Trinity under the False Claims Act in 2012.

He claimed Trinity made false statements that its rails complied with federal highway safety regulations.

Harman sued on behalf of the United States, but the government did not join the case.

Trinity twice moved for judgment as a matter of law, claiming it told the truth when it stated that its rails complied with regulations.

District Judge Rodney Gilstrap denied the motions without explaining why he did.

Last year, as he prepared to hold trial, Trinity petitioned the Fifth Circuit Court of Appeals to stop the proceedings.

Fifth Circuit judges found no authority for interlocutory review prior to the start of a trial, but they cast doubts on Harman’s allegations.

They wrote that a letter from the Federal Highway Administration seemed to compel a conclusion that it found the rails sufficiently compliant with safety standards and fully eligible for federal reimbursement.

"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.

They expressed concern that Gilstrap “never issued a reasoned ruling rejecting the defendant’s motions for judgment as a matter of law.”

Trial began in October, and ended with jurors awarding the United States $175 million in damages.

Harman would qualify for up to 30 percent of the award, or as much as $52.5 million.

Trinity immediately moved for judgment as a matter of law.

Gilstrap then issued a peculiar order, on his own motion, for mediation before Duke University professor Francis McGovern.

Gilstrap empowered McGovern to invite the Department of Justice and the Federal Highway Administration, though neither had participated in the trial.

Gilstrap set a Dec. 31 deadline, but later extended McGovern’s appointment for so long as the court retains jurisdiction over the action.

Meanwhie, Gilstrap has not entered judgment on the verdict, nor has he ruled on the motion for judgment as a matter of law.

The lack of a judicial stamp on the verdict did not deter Cates from suing Trinity last November, on behalf of all 102 counties in Illinois.

In January, Trinity moved to dismiss the case or stay discovery pending resolution of the Harman case.

Trinity counsel Sarah Teachout, of Dallas, wrote that the Federal Highway Administration confirmed after trial that ET-Plus meets crash testing criteria.

She wrote that the Illinois Department of Transportation has not recalled ET-Plus.

On Feb. 5, Cates amended his complaint to remove Hamilton County and install St. Clair County as lead plaintiff.

He opposed the motion to dismiss the case or stay discovery on Feb. 27, writing that the Texas case involved different plaintiffs and legal theories.

“The nature of this particular case, claims of deadly product defects in a guardrail which is critical to the safety of those operating automobiles on the roads of the counties of Illinois, mean that the harm to plaintiffs and their citizens is continuing every hour of every day,” Cates wrote.

On March 4, Trinity counsel Nicholas Lamb, of Thompson Coburn in St. Louis, replied that any harm the plaintiffs would suffer from a stay is entirely speculative.

He wrote that their allegation of harm is undermined by email from Illinois Department of Transportation to the Federal Highway Administration.

He quoted an official who wrote that the department “had no indication from our IDOT districts, local agencies, or the Illinois state police of any adverse performance issues to date associated with the ET Plus terminal.”

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