EAST ST. LOUIS – St. Clair County State’s Attorney Brendan Kelly and special assistant David Cates, who claim a Texas firm must remove bad guardrails from roads statewide, expect local crews to distinguish good ones from bad ones. 

Their Aug. 11 motion to certify a class action against Trinity Industries at U.S. district court didn’t begin to measure the size and cost of the project. 

They asserted only that St. Clair County and second plaintiff Macon County together have about 141 ET-Plus model rails requiring replacement. 

They would require similar counting not only in 100 other counties but also in 1,298 municipalities and 1,431 townships. 

All ET-Plus rails with a certain channel five inches wide would pass their test, but those with a channel four inches wide would require replacement. 

“It will merely require class members that cannot already distinguish between five inch and four inch feeder channels to simply count the number of four inch ET-Plus units in their jurisdiction,” Cates wrote. 

He declared it no more burdensome than average for class members in other cases. 

He wrote that members of the proposed class have already responded to information requests, and that some members produced hundreds of documents, “which was certainly a much more burdensome and substantial individualized inquiry for proposed class members than simply counting their four inch ET-Plus units.” 

He offered the fact that no other class member pursued a claim against Trinity as evidence in support of a class action. 

“Practically speaking, this is not surprising, as many if not all counties, cities, villages, incorporated towns, and township governments in the state of Illinois cannot afford to replace the guardrails, let alone undertake the cost associated with fighting a corporate giant with unlimited funds who has demonstrated it will use any and all means and funds necessary to fight this and other companion litigation across the United States,” he wrote. 

He wrote that four simple steps would calculate the replacement cost. 

“Inventory the modified ET-Plus units for each member,” he wrote. 

“Solicit a detailed replacement cost proposal from a qualified vendor. 

“Each member shall provide a detailed inventory of currently installed Type A guardrail with replacement cost per foot, that will need to be brought up to current height standards of 31 inches when the modified ET-Plus units are removed and replacement end terminals are installed. 

“Calculate the total value of the replacement cost.” 

Kelly and Cates sued Trinity in November 2014, claiming it sacrificed safety by narrowing the channel and concealing the change from regulators. 

A month earlier, jurors at U.S. district court in Marshall, Texas, had assessed $175 million in damages against Trinity on behalf of the United States. 

The verdict prompted the Illinois Department of Transportation to ban ET-Plus rails, and the ban remains in place. 

The verdict didn’t alter the position of the U.S. Highway Safety Administration, which regards the ET-Plus as safe. 

It remains in suspense at the Fifth Circuit appellate court in New Orleans, where judges heard oral argument last December. 

U.S. District Judge David Herndon presides over the local case. 

He dismissed counts of deceptive trade practices and breach of implied warranty in January, while allowing St. Clair and Macon counties to allege unjust enrichment. 

Along with Cates as lead lawyer, Kelly has appointed Eric Holland, Seth Crompton, Christopher Ellis and Shane Mendenhall as special assistants. 

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St. Clair County State's Attorney
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