Madison - St. Clair Record

Monday, February 17, 2020

Proposed class action against guardrail maker Trinity Industries shutting down

By The Madison County Record | Sep 5, 2017

General court 08

EAST ST. LOUIS – St. Clair County State’s Attorney Brendan Kelly and special assistant David Cates have abandoned a mammoth suit seeking replacement of highway guardrails statewide. 

Fifteen lawyers stipulated dismissal in U.S. district court on Sept. 1, six for St. Clair County and nine for Texas guardrail maker Trinity Industries. 

The stipulation provided that all claims were dismissed “without payment by defendants of any money in connection therewith.” 

The shutdown occurred three weeks after Cates moved to certify a class action for all counties and almost 3,000 local governments. 

Cates filed the suit in November 2014, on behalf of St. Clair County. 

A month earlier, jurors in a similar case in Texas had assessed $175 million in damages against Trinity on behalf of the United States. 

Cates alleged that Trinity sacrificed safety by narrowing a channel in terminals and concealing the change from regulators. 

Last year, District Judge David Herndon denied a motion to dismiss the suit. 

Last September, Trinity moved for judgment on the pleadings. 

Cates moved to amend the complaint in October, writing that he and Trinity agreed that changes were necessary. 

He wrote that he would remove a claim of breach of warranty, and that he would remove any deficiency in a claim of deceptive trade practices. 

He wrote that he might bring further causes of action against Trinity. 

Magistrate Judge Stephen Williams denied the motion in November, finding it untimely and unduly prejudicial. 

He wrote that plaintiffs proposed to raise claims of racketeering, civil conspiracy and common law fraud. 

“Such claims would change the nature of the action which defendants have been defending,” Williams wrote. 

Cates appealed to Herndon, who affirmed Williams in January. 

He ruled that St. Clair and Macon counties could only claim unjust enrichment. 

On June 6, Trinity moved to bar liability expert Kevin Schrum from testifying. 

Trinity claimed he failed to produce data underlying a study he incorporated into the report he submitted to the court. 

Trinity claimed he misrepresented the study and underlying data. 

Cates withdrew Schrum on that date. 

Cates moved to certify a class on Aug. 11, writing that local crews could distinguish good guardrails from bad ones. 

He wrote that about 141 rails required replacement in St. Clair and Macon counties. 

“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. 

The Texas verdict remains under review at the Fifth Circuit in New Orleans.  

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