Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 1 of 43 PageID 946 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION CHARLES W. PIKE, Plaintiff, v. TRINITY INDUSTRIES, INC., a Delaware corporation, and TRINITY INDUSTRIES PRODUCTS, LLC a Delaware limited liability company, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 5:12-cv-00146-Oc-99TJC-PRL DEFENDANT, TRINITY INDUSTRIES, INC’S, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT Defendant, TRINITY INDUSTRIES, INC., (hereinafter “Trinity Industries”), by its counsel, hereby responds to Plaintiff’s Amended Complaint as follows: 1. Trinity Industries admits for jurisdictional purposes that the matter in controversy exceeds the jurisdictional limits of this Court, and that diversity of citizenship exists between the current parties to this action and is otherwise without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of the Plaintiff’s Amended Complaint, and therefore denies same. 2. Trinity Industries is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 2 of the Plaintiff’s Amended Complaint, and therefore denies same. 3. Trinity Industries admits that it is a Delaware corporation with its principal place of business at 2525 N. Stemmons Highway, Dallas, Texas 75207, the balance of the allegations contained in Paragraph 3 of the Plaintiff’s Amended Complaint are denied. Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 2 of 43 PageID 947 4. Trinity Industries denies the allegations of Paragraph 4 of the Plaintiff’s Amended Complaint. 5. Trinity Industries denies the allegations of Paragraph 5 of the Plaintiff’s Amended Complaint. 6. Trinity Industries denies the allegations of Paragraph 6 of the Plaintiff’s Amended Complaint. 7. Trinity Industries admits that Trinity Highway Products. LLC (Trinity Highway) is a wholly owned subsidiary of Trinity Industries with its principal place of business located at 2525 N. Stemmons Highway, Dallas, Texas 75207, admits that Trinity Highway is subject to personal jurisdiction in the State of Florida but otherwise denies the remaining allegations contained in Paragraph 7 of the Plaintiff’s Amended Complaint. 8. Paragraph 8 of the Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent Paragraph 8 is in any way intended or implied to apply to Trinity Industries, it is admitted that Trinity Highway sells highway guardrail and end treatment systems which have been accepted (or deemed eligible) by the Federal Highway Administration (“FHWA”) for use on the national highway system, admits that state departments of transportation, or the applicable highway authority, can specify Trinity Highway Products systems for use on their roadways. In many instances, those products must be accepted by the FHWA for use on the national highway system, or deemed “eligible” and is without knowledge or information sufficient to form a belief as to the truth of the balance of the allegations contained in paragraph 8 of the Plaintiff’s Amended Complaint, and therefore denies same. 9. Trinity Industries denies that it designs, manufactures and sells guardrails to cities, counties, and state departments of transportation for roadway and highway safety. It is 2 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 3 of 43 PageID 948 admitted that Trinity Highway manufactures and sells highway guardrail end treatment systems which have accepted, or deemed eligible, by the FHWA for use on the national highway system, admits that state departments of transportation, or the applicable highway authority, can specify Trinity Highway’s systems for use on their roadways. In many instances, those products must be accepted by the FHWA for use on the national highway system (or deemed eligible). Trinity Industries is without knowledge or information sufficient to form a belief as to the truth of the balance of the allegations contained in Paragraph 9 of Plaintiff’s Amended Complaint, and therefore denies same. 10. Trinity Industries admits that the accident that Plaintiff complains of appears to have happened in Lake County, Florida and is otherwise without knowledge or information sufficient to form a belief as to the truth of the balance of the allegations contained in Paragraph 10 of the Plaintiff’s Amended Complaint, and therefore denies same. 11. Trinity Industries is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 11 of the Plaintiff’s Amended Complaint, and therefore denies same. FACTUAL ALLIGATIONS 12. Trinity Industries is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 12 of the Plaintiff’s Amended Complaint, and therefore denies same. 13. Trinity Industries is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 13 of the Plaintiff’s Amended Complaint, and therefore denies same. 3 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 4 of 43 PageID 949 14. Trinity Industries admits that the Texas A&M Transportation Institute (TTI) a state agency of the Texas A&M University System, designs, develops, tests and owns the intellectual property comprising the ET-Plus guardrail end treatment system and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 14 of the Plaintiff’s Amended Complaint, and therefore denies same. 15. Trinity Industries admits that the FHWA, United States Department of Transportation (USDOT), utilizing criteria established by the National Cooperative Highway Research Program (“NCHRP”), which has become a federal standard, accepts (or “deems eligible”) roadside devices, crash tested pursuant to the NCHRP 350 or MASH criteria, for use along and on roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted (or deemed eligible) by FHWA pursuant to the NCHRP Report 350 (or MASH, where applicable) criteria when the state road department constructs and repairs roads and bridges with federal funds and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 15 of the Plaintiff’s Amended Complaint, and therefore denies same. 16. Trinity Industries admits FHWA, USDOT, in utilizing criteria established by the National Cooperative Highway Research Program (“NCHRP”), which has become a federal standard, accepts (or “deems eligible”) roadside devices, crash tested pursuant to the NCHRP 350 or MASH criteria, for use along and on roads and bridges built with federal funds, admits that state highway departments are required to use highway products accepted by FHWA pursuant to NCHRP Report 350 (or MASH, where applicable) criteria when the state road department constructs and repairs roads and bridges with federal funds. Trinity Industries specifically denies that it manufactures any such products, including the ET-Plus guardrail end 4 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 5 of 43 PageID 950 terminals. Trinity Industries is without knowledge as to the balance of the allegations contained in Paragraph 16 of Plaintiff’s Amended Complaint and the same are therefore denied. 17. Trinity Industries admits FHWA, USDOT, in utilizing criteria established by the National Cooperative Highway Research Program (“NCHRP”), which has become a federal standard, accepts (or “deems eligible”) roadside devices, crash tested pursuant to the NCHRP 350 (or MASH where applicable) criteria, for use along and on roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds. Trinity Industries specifically denies that it manufactures and sells any such products, including the ET-Plus guardrail end terminals. Trinity Industries is without knowledge as to the balance of the allegations contained in Paragraph 17 of Plaintiff’s Amended Complaint and the same are therefore denied. 18. Trinity Industries specifically denies that it designs, manufactures and sells any such products, including the ET-Plus guardrail end terminals. Trinity Industries admits that Trinity Highway’s products have been accepted (or deemed eligible) by FHWA for use on the national highway system, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the balance of the allegations contained in Paragraph 18 of Plaintiff’s Amended Complaint and therefore denies same. 19. Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property compromising the ET-Plus guardrail end treatment system, admits that TTI 5 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 6 of 43 PageID 951 licenses certain of its roadside device intellectual property to Trinity Highway and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 19 of Plaintiff’s Amended Complaint and therefore denies same. 20. Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property compromising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 20 of Plaintiff’s Amended Complaint, and therefore denies same. 21. Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property compromising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 21 of Plaintiff’s Amended Complaint, and therefore denies same. 22. At all times relevant hereto, Trinity Industries admits that Trinity Highway products have been accepted (or deemed eligible) by FHWA for use along roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds and otherwise is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 22 of the Plaintiff’s Amended Complaint, and therefore denies same. 23. At all times relevant hereto, Trinity Industries admits that Trinity Highway products have been accepted (or deemed eligible) by FHWA for use along roads and bridges built with federal funds, admits that state highway departments are required to use roadside 6 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 7 of 43 PageID 952 devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds and otherwise is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 23 of the Plaintiff’s Amended Complaint, and therefore denies same. 24. At all times relevant hereto, Trinity Industries admits that Trinity Highway products have been accepted (or deemed eligible) by FHWA for use along roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds and otherwise is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 24 of the Plaintiff’s Amended Complaint, and therefore denies same. 25. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 25. 26. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero 7 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 8 of 43 PageID 953 degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 26. 27. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 27. 28. At all times relevant hereto, Trinity Industries admits that Trinity Highway products have been accepted (or deemed eligible) by FHWA for use along roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds and otherwise is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 28 of the Plaintiff’s Amended Complaint, and therefore denies same. 8 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 9 of 43 PageID 954 29. At all times relevant hereto, Trinity Industries admits that Trinity Highway products have been accepted (or deemed eligible) by FHWA for use along roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds and otherwise is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 29 of the Plaintiff’s Amended Complaint, and therefore denies same. 30. At all times relevant hereto, Trinity Industries admits that Trinity Highway products have been accepted (or deemed eligible) by FHWA for use along roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds and otherwise is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 30 of the Plaintiff’s Amended Complaint, and therefore denies same. 31. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 31. 9 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 10 of 43 PageID 955 32. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 32. 33. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 33. 34. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on 10 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 11 of 43 PageID 956 TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 34. 35. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 35. 36. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 36. 11 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 12 of 43 PageID 957 37. Trinity Industries admits that in February 2003, TTI suggested to Trinity that performance of the ET-Plus extruder head could be enhanced by reducing the guide channels that guide the extruder head down the installed run of W-Beam guardrail, when impacted at zero degrees, end on in both the lateral and vertical directions. Trinity accepted the suggestion of TTI and in March 2003 continued discussions with TTI as to the idea. Discussions continued on TTI’s idea and by May 2005, Trinity Highway, at the direction of TTI, manufactured an ET-Plus extruder head with a four (4) inch dimension guide channel. TTI accepted the head and included it as part of the crash testing done in the ET-31 crash test performed during the last week of May, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 37. 38. Trinity Highway admits that TTI performed an NCHRP 350, TL-3 crash test on the ET-31 and that TTI compiled a crash test report on the performance of the ET-Plus during the May 2005 testing. In compiling the ET-31 crash test report, TTI apparently inadvertently omitted a detailed drawing of the ET-Plus extruder head that was part of the testing. However, TTI has confirmed to the FHWA that the ET-Plus extruder head tested in May 2005 did incorporate a four (4) inch guide channel and that the W-Beam guardrail, as well as the rail splice fed smoothly through the extruder head as designed and that the crash test in 2005 demonstrated that the test met all applicable NCHRP Report 350 evaluation criteria. On October 11, 2012, the FHWA confirmed that on February 14, 2012, individuals from Trinity Highway as well as Dr. Roger Bligh of TTI met with the FHWA and confirmed that four (4) inch guide channels were attached to the ET-Plus extruder head that was crash tested at TTI in May 2005; that TTI confirmed this through Dr. Bligh; that Trinity Highway submitted documentation revealing the enhancements to the ET-Plus, including the reduction of the guide channel width from five (5) inches to four (4) inches in 2005. The FHWA determined that the ET-Plus end 12 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 13 of 43 PageID 958 terminal with the four (4) inch guide channel attached to the extruder head is eligible for reimbursement under the Federal-Aid Highway Program under FHWA letter CC-94 of September 2, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 38. 39. Trinity Industries specifically denies that it sold any ET-Plus systems. Trinity Highway admits that TTI performed an NCHRP 350, TL-3 crash test on the ET-31 and that TTI compiled a crash test report on the performance of the ET-Plus during the May 2005 testing. In compiling the ET-31 crash test report, TTI apparently inadvertently omitted a detailed drawing of the ET-Plus extruder head that was part of the testing. However, TTI has confirmed to the FHWA that the ET-Plus extruder head tested in May 2005 did incorporate a four (4) inch guide channel and that the W-Beam guardrail, as well as the rail splice fed smoothly through the extruder head as designed and that the crash test in 2005 demonstrated that the test met all applicable NCHRP Report 350 evaluation criteria. On October 11, 2012, the FHWA confirmed that on February 14, 2012, individuals from Trinity Highway as well as Dr. Roger Bligh of TTI met with the FHWA and confirmed that four (4) inch guide channels were attached to the ETPlus extruder head that was crash tested at TTI in May 2005; that TTI confirmed this through Dr. Bligh; that Trinity Highway submitted documentation revealing the enhancements to the ETPlus, including the reduction of the guide channel width from five (5) inches to four (4) inches in 2005. The FHWA determined that the ET-Plus end terminal with the four (4) inch guide channel attached to the extruder head is eligible for reimbursement under the Federal-Aid Highway Program under FHWA letter CC-94 of September 2, 2005. Trinity Highway denies the balance of the allegations contained in paragraph 39. 13 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 14 of 43 PageID 959 40. Trinity Industries denies the allegations contained in Paragraph 40 of Plaintiff’s Amended Complaint. 41. Trinity Industries denies the allegations contained in Paragraph 41 of Plaintiff’s Amended Complaint. 42. Trinity Industries denies the allegations contained in Paragraph 42 of Plaintiff’s Amended Complaint. 43. Trinity Industries denies the allegations contained in Paragraph 43 of Plaintiff’s Amended Complaint. 44. Trinity Industries specifically denies that it sells such guardrail end terminals. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 44 of Plaintiff’s Amended Complaint, and therefore denies same. 45. Trinity Industries specifically denies that it designs the SRT-350 6 Post. Trinity Industries admits that pursuant to the design and development of TTI, which is the intellectual property of the Texas A&M University System, Trinity Highway has a license to and does manufacture a singularly unique cable anchor bracket for its ET-Plus end treatment system that is incompatible with any other highway roadside device and which only fits with the ET-Plus end treatment system technology as designed and developed by TTI, and otherwise is without 14 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 15 of 43 PageID 960 knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 45 of Plaintiff’s Amended Complaint, and therefore denies same. 46. Trinity Industries is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 46 of Plaintiff’s Amended Complaint and the same are therefore denied. 47. Trinity Industries is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 47 of Plaintiff’s Amended Complaint and the same are therefore denied. 48. Trinity Industries specifically denies that it sells such guardrail end terminals. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 48 of Plaintiff’s Amended Complaint, and therefore denies same. 49. Trinity Industries specifically denies that it sells such guardrail end terminals. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national 15 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 16 of 43 PageID 961 highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 49 of Plaintiff’s Amended Complaint, and therefore denies same. 50. Trinity Industries admits that on or about October 29, 2010, it understands that Plaintiff was involved in a motor vehicle accident at the intersection of State Road 33 and Groveland Airport Road in Lake County, Florida, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 50 of the Plaintiff’s Amended Complaint, and therefore denies same. 51. Trinity Industries denies that there was an ET-Plus end terminal system assembled at the intersection of State Road 33 and Groveland Airport Road on October 29, 2010, denies that the truck being driven by Leighton Kish collided with an ET-Plus end terminal system and otherwise is without knowledge as to the allegations contained in Paragraph 51 of the Plaintiff’s Amended Complaint, and therefore denies same. 52. Trinity Industries admits that on October 29, 2010 it understands that Plaintiff was involved in a motor vehicle accident at the intersection of State Road 33 and Groveland Airport Road in Lake County, Florida, otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 52 of the Plaintiff’s Amended Complaint, and therefore denies same. 53. Trinity Industries specifically denies that there was an ET-Plus end treatment system assembled at the intersection of State Road 33 and Groveland Airport Road on October 29, 2010 and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 53 of Plaintiff’s Amended Complaint and therefore denies same. 16 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 17 of 43 PageID 962 54. Trinity Industries specifically denies that it sells such guardrail end terminals. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 54 of Plaintiff’s Amended Complaint, and therefore denies same. 55. Trinity Industries admits that on October 29, 2010 it understands that Plaintiff was involved in a motor vehicle accident at the intersection of State Road 33 and Groveland Airport Road in Lake County, Florida and admits that it understands that Plaintiff’s leg was traumatically injured in that accident, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 55 of the Plaintiff’s Amended Complaint. 56. Trinity Industries denies the allegations contained in Paragraph 56 of Plaintiff’s Amended Complaint. COUNT I NEGLIGENCE OF TRINITY INDUSTRIES, INC. – DESIGN DEFECT 57. In response to Paragraph 57, Trinity Industries realleges its responses to Paragraphs 1-44, 46-47, 50-53 and 55-56. 58. Trinity Industries denies the allegations of Paragraph 58 of Plaintiff’s Amended Complaint. 17 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 18 of 43 PageID 963 59. Trinity Industries denies the allegations of Paragraph 59 of Plaintiff’s Amended Complaint, including all subparts. 60. Trinity Industries denies the allegations of Paragraph 60 of Plaintiff’s Amended Complaint. COUNT II NEGLIGENCE OF TRINITY HIGHWAY PRODUCTS – DESIGN DEFECT 61. In response to Paragraph 61, Trinity Industries realleges its responses to Paragraphs 1-44, 46-47, 50-53 and 55-56. 62. Paragraph 62 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 62 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that at all times relevant hereto, Trinity Highway’s products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway developments required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 (or MASH where appropriate) criteria and the state road department construction repairs roads and bridges with federal funds and otherwise denies the balance of the allegations contained in Paragraph 62 of the Plaintiff’s Amended Complaint. 63. Paragraph 63 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 63 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 63, including all subparts, are denied. 64. Paragraph 64 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 64 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 64 are denied. COUNT III 18 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 19 of 43 PageID 964 GROSS NEGLIGENCE OF TRINITY INDUSTRIES, INC. 65. In response to Paragraph 65 Trinity Industries realleges its responses to Paragraphs 1-44, 46-47, 50-53 and 55-56 as if fully set forth herein. 66. Trinity Industries denies the allegations contained in Paragraph 66 of Plaintiff’s Amended Complaint. 67. Trinity Industries denies the allegations contained in Paragraph 67 of Plaintiff’s Amended Complaint, including all subparts. 68. Trinity Industries denies the allegations contained in Paragraph 68 of Plaintiff’s Amended Complaint. 69. Trinity Industries denies the allegations contained in Paragraph 69 of Plaintiff’s Amended Complaint. COUNT IV GROSS NEGLIGENCE OF TRINITY HIGHWAY PRODUCTS 70. In response to Paragraph 70, Trinity Industries realleges its responses to Paragraphs 1-44, 46-47 and 55-56 as if fully set forth herein. 71. Paragraph 71 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 71 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that at all times relevant hereto Trinity Highway’s products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 (or MASH, where appropriate), criteria when state road department construction repairs roads and bridges with federal funds and otherwise denies the balance of the allegations contained in Paragraph 71 of the Plaintiff’s Amended Complaint. 19 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 20 of 43 PageID 965 72. Paragraph 72 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 72 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 72 are denied. 73. Paragraph 73 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 73 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 73 are denied. 74. Paragraph 74 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 74 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 74 are denied. COUNT V STRICT LIABILITY OF TRINITY INDUSTRIES, INC. – DESIGN DEFECT 75. In response to Paragraph 75, Trinity Industries realleges its responses to Paragraphs 1-44, 46-47, 50-53 and 55-56 as if fully set forth herein. 76. Trinity Industries denies the allegations contained in Paragraph 76 of the Plaintiff’s Amended Complaint. 77. Trinity Industries denies the allegations of Paragraph 77 of the Plaintiff’s Amended Complaint, including all subparts. 78. Trinity Industries denies the allegations contained in Paragraph 78 of the Plaintiff’s Amended Complaint. 79. Trinity Industries denies the allegations contained in Paragraph 79 of the Plaintiff’s Amended Complaint. 80. Trinity Industries denies the allegations contained in Paragraph 80 of the Plaintiff’s Amended Complaint. COUNT VI 20 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 21 of 43 PageID 966 STRICT LIABILITY OF TRINITY HIGHWAY – DESIGN DEFECT 81. In response to Paragraph 81, Trinity Industries realleges its responses to Paragraphs 1-44, 46-47, 50-53 and 55-56 as if fully set forth herein. 82. Paragraph 82 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 82 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property comprising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway Products, admits that Trinity Highway Products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds, admits that Trinity Highway has sold FHWA accepted roadside devices to the Florida Department of Transportation (FDOT) and denies the balance of the allegations of Paragraph 82 of the Plaintiff’s Amended Complaint. 83. Paragraph 83 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 83 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 83 are denied. 84. Paragraph 84 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 84 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 84 are denied. 21 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 22 of 43 PageID 967 85. Paragraph 85 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 85 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 85 are denied. 86. Paragraph 86 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 86 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 86 are denied. COUNT VII NEGLIGENCE OF TRINITY HIGHWAY PRODUCTS – FAILURE TO WARN 87. In response to Paragraph 87, Trinity Industries realleges its responses to Paragraphs 1-52 and 54-56 as if fully set forth herein. 88. Paragraph 88 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 88 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property comprising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway, admits that Trinity Highway Products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds, admits that Trinity Highway has sold FHWA accepted roadside devices to the Florida Department of Transportation (FDOT) and denies the balance of the allegations of Paragraph 88 of the Plaintiff’s Amended Complaint. 89. Paragraph 89 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 89 is in any way intended or implied to apply to Trinity 22 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 23 of 43 PageID 968 Industries, Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property comprising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway, admits that Trinity Highway’s products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds, admits that Trinity Highway has sold FHWA accepted roadside devices to the Florida Department of Transportation (FDOT) and denies the balance of the allegations of Paragraph 89 of the Plaintiff’s Amended Complaint. 90. Paragraph 90 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 90 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property comprising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway, admits that Trinity Highway’s products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway departments are required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds, admits that Trinity Highway has sold FHWA accepted roadside devices to the Florida Department of Transportation (FDOT) and denies the balance of the allegations of Paragraph 90 of the Plaintiff’s Amended Complaint. 23 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 24 of 43 PageID 969 91. Paragraph 91 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 91 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 91 of Plaintiff’s Amended Complaint, and therefore denies same. 92. Paragraph 92 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 92 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that Trinity Highway manufactures and sells highway guardrail systems approved by the FHWA, admits that the state departments of transportation can specify Trinity Highway’s products as being compliant with the National Cooperative Highway Research Program Report meeting federal highway administration requirements for installation on a national highway system and otherwise is without knowledge or information sufficient to form a belief of the truth of the allegations contained in paragraph 92 of Plaintiff’s Amended Complaint. 93. Paragraph 93 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 93 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its 24 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 25 of 43 PageID 970 highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 93 of Plaintiff’s Amended Complaint, and therefore denies same. 94. Paragraph 94 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 94 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that Trinity Highway supplies learned and experienced end users of Trinity Highway’s FHWA accepted roadside device products instructions for the assembly of its roadside device products, admits that a failure to follow the instructions for the correct assembly of Trinity Highway roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 94 of the Complaint, and therefore denies same. 95. Paragraph 95 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 95 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the 25 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 26 of 43 PageID 971 national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 44 of Plaintiff’s Amended Complaint, and therefore denies same. 96. Paragraph 96 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 96 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 96 are denied. COUNT VIII STRICT LIABILITY OF TRINITY HIGHWAY PRODUCTS – FAILURE TO WARN 97. In response to Paragraph 97, Trinity Industries realleges its responses to Paragraphs 1-52 and 54-56 as if fully set forth herein. 98. Paragraph 98 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 98 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property comprising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway Products, admits that Trinity Highway’s products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway departments required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds, admits that Trinity Highway has sold FHWA accepted roadside devices to the Florida Department of Transportation (FDOT) and denies the balance of the allegations of Paragraph 98 of the Plaintiff’s Amended Complaint. 99. Paragraph 99 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 99 is in any way intended or implied to apply to Trinity 26 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 27 of 43 PageID 972 Industries, Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property comprising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway’s products, admits that Trinity Highway’s products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway departments required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds, admits that Trinity Highway has sold FHWA accepted roadside devices to the Florida Department of Transportation (FDOT) and denies the balance of the allegations of Paragraph 99 of the Plaintiff’s Amended Complaint. 100. Paragraph 100 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 100 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that TTI designs, develops, tests and owns the intellectual property comprising the ET-Plus guardrail end treatment system, admits that TTI licenses certain of its roadside device intellectual property to Trinity Highway’s products, admits that Trinity Highway’s products have been accepted (or deemed eligible) by FHWA for the use along and on roads and bridges built with federal funds, admits that state highway departments required to use roadside devices accepted by FHWA pursuant to NCHRP Report 350 criteria when the state road department constructs and repairs roads and bridges with federal funds, admits that Trinity Highway has sold FHWA accepted roadside devices to the Florida Department of Transportation (FDOT) and denies the balance of the allegations of Paragraph 100 of the Plaintiff’s Amended Complaint. 27 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 28 of 43 PageID 973 101. Paragraph 101 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 101 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 101 of Plaintiff’s Amended Complaint, and therefore denies same. 102. Paragraph 102 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 102 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that Trinity Highway supplies learned and experienced end users of Trinity Highway’s FHWA accepted roadside device products instructions for the assembly of its roadside device products, admits that a failure to follow the instructions for the correct assembly of Trinity Highway roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 102 of the Complaint, and therefore denies same. 103. Paragraph 103 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 103 is in any way intended or implied to apply to Trinity Industries, Trinity Industries admits that Trinity Highway distributes to learned and experienced 28 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 29 of 43 PageID 974 end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 103 of Plaintiff’s Amended Complaint, and therefore denies same. 104. Paragraph 104 of Plaintiff’s Amended Complaint does not apply to Trinity Industries. To the extent that Paragraph 104 is in any way intended or implied to apply to Trinity Industries, all allegations contained in Paragraph 104 are denied. COUNT IX NEGLIGENCE OF TRINITY INDUSTRIES – FAILURE TO WARN 105. In response to Paragraph 105, Trinity Industries realleges its responses to Paragraphs 1-52 and 54-56 as if fully set forth herein. 106. Trinity Industries denies the allegations contained in Paragraph 106 of the Plaintiff’s Amended Complaint. 107. Trinity Industries specifically denies that it designs, tests, manufactures or sells parts for use with any guardrails. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or 29 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 30 of 43 PageID 975 information sufficient to form a belief as to the truth of the allegations contained in paragraph 107 of Plaintiff’s Amended Complaint, and therefore denies same. 108. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 108 of Plaintiff’s Amended Complaint, and therefore denies same. 109. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 109 of Plaintiff’s Amended Complaint, and therefore denies same. 110. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product 30 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 31 of 43 PageID 976 for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 110 of Plaintiff’s Amended Complaint, and therefore denies same. 111. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 111 of Plaintiff’s Amended Complaint, and therefore denies same. 112. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 112 of Plaintiff’s Amended Complaint, and therefore denies same. 113. Trinity Industries denies the allegations contained in Paragraph 113 of the Plaintiff’s Amended Complaint. 114. Trinity Industries denies the allegations contained in Paragraph 114 of the Plaintiff’s Amended Complaint. 31 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 32 of 43 PageID 977 COUNT X STRICT LIABILITY OF TRINITY INDUSTRIES – FAILURE TO WARN 115. In response to Paragraph 115, Trinity Industries realleges its responses to Paragraphs 1-52 and 54-56 as if fully set forth herein. 116. Trinity Industries denies the allegations contained in Paragraph 116 of the Plaintiff’s Amended Complaint. 117. Trinity Industries specifically denies that it designs, tests, manufactures or sells parts for use with any guardrails. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 117 of Plaintiff’s Amended Complaint, and therefore denies same. 118. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 118 of Plaintiff’s Amended Complaint, and therefore denies same. 32 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 33 of 43 PageID 978 119. Trinity Industries admits that Trinity Highway distributes to learned and experienced end users of its FHWA accepted roadside device products, instructions for the assembly of its highway products, admits that a failure to follow the instructions for the correct assembly of the roadside device products may result in the highway product not performing as crash tested in the report submitted to the FHWA for its consideration in accepting the product for use on the national highway system, and otherwise is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 119 of Plaintiff’s Amended Complaint, and therefore denies same. 120. Trinity Industries denies the allegations contained in Paragraph 120 of the Plaintiff’s Amended Complaint. 121. Trinity Industries denies the allegations contained in Paragraph 121 of the Plaintiff’s Amended Complaint. 122. Trinity Industries denies the allegations contained in Paragraph 122 of the Plaintiff’s Amended Complaint. AFFIRMATIVE DEFENSES 123. The Plaintiff’s Amended Complaint fails to state a claim upon which relief can be granted against Trinity Industries. 124. Trinity Industries alleges that that Plaintiff has failed to join necessary parties. 125. Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitations and statues of repose, including but not limited to Sections 95.031 and 95.11, Fla. Stat. 126. Plaintiff’s claims are barred by the doctrine of estoppel. 33 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 34 of 43 PageID 979 127. Plaintiff’s claims are barred by the doctrines of payment, release and accord and satisfaction. 128. Any product manufactured, sold or distributed by Trinity Industries or Trinity Highway was neither defective nor unreasonably dangerous in that it complied, at all relevant times, with all applicable safety standards, including but not limited to regulations and specifications promulgated by the Federal Highway Administration and the Florida Department of Transportation. 129. Trinity Industries claims the benefits of Section 768.81, Fla. Stat. 130. Some or all of Plaintiff’s claims are barred by the learned intermediary and/or sophisticated user doctrines. At all relevant times herein, the Florida Department of Transportation (FDOT) was in the position of a sophisticated purchaser and user, fully knowledgeable and informed with respect to the risks and benefits related to the use of the subject guardrail end treatment system. 131. The injuries, damages, and losses alleged in the Plaintiff’s Amended Complaint were caused in whole or in part by the comparative negligence of Plaintiff. 132. The injuries, damages, and losses alleged in the Plaintiff’s Amended Complaint were caused in whole or in part by the negligence of others, over whom Trinity Industries exercised no control, had no opportunity to anticipate or right to control, and with whom Trinity Industries had no legal relationship by which liability could be attributed to it because of the actions of Plaintiff and/or others, which by comparison was far greater than any conduct alleged as to Trinity Industries. The persons or entities who are or may be negligent and whose negligence caused or contributed to the injuries that Charles W. Pike complains of include, but are not limited to: Florida Department of Transportation (FDOT) and Leighton Kish. FDOT 34 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 35 of 43 PageID 980 was negligent in assembling a collection of random parts as an end treatment system which was not accepted by FHWA, which had never been subjected to any crash test for evaluation by the FHWA and which would not conform to NCHRP Report 350 criteria at the intersection of State Road 33 and Groveland Airport Road prior to October 29, 2010, including but not limited to installing a generic bolted cable anchor bracket on an obsolete guardrail panel that had not been accepted for use for fifteen (15) years together with unknown struts, cables, fasteners, posts and blockouts. Leighton Kish operated a Ford F-150 truck negligently so as to leave the roadway at or about the intersection of State Road 33 and Groveland Airport Road, causing Leighton Kish to lose control of the Ford F-150 truck and causing the Ford F-150 truck to strike the collection of unaccepted parts assembled by the FDOT at an angle of impact that no FHWA accepted guardrail end treatment system was designed to respond to within NCHRP Report 350 criteria. Defendant reserves the right to amend this affirmative defense to comply with Messmer/Fabre, (Messmer v Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1992), rev. den., 598 So.2d 77 (Fla. 1992); Fabre v Marin, 623 So.2d 1182 (Fla. 1993)) upon continuing discovery. Defendant reserves the right pursuant to Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262, 1264 (Fla. 1996), to specifically identify any person or entity that discovery discloses is or may be liable for part or all of Plaintiffs' claims. 133. Plaintiff’s alleged loss, damage, injury, harm, expense, diminution, or deprivation alleged, if any, was caused in whole or in part by Plaintiff’s failure to exercise reasonable care and diligence to mitigate his alleged damages. 134. Plaintiff’s claims are preempted by federal law in that Trinity Industries and Trinity Highway’s highway guardrail end treatment systems were researched, tested, developed, manufactured, labeled, marketed and sold in a manner consistent with the state of the art 35 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 36 of 43 PageID 981 procedures at the pertinent time and that said highway guardrail systems complied with applicable highway authority, the NCHRP Report 350 criteria, meeting Federal Highway Administration requirements, for installation on the national highway system. 135. Any causes of action claimed by Plaintiff arising from intrusion of random non- Trinity Industries or Trinity Highway guardrail parts into the passenger cabin of Mr. Kish’s Ford F-150 truck on October 29, 2010, that were not manufactured or sold by Trinity Industries, when the vehicle that Plaintiff was a passenger in impacted a random collection of guardrail parts assembled by the FDOT at the intersection of State Road 33 and Groveland Airport Road in Lake County, Florida, that were not accepted by the FHWA pursuant to NCHRP Report 350 criteria are preempted by the doctrine of federal field preemption because there was no FHWA NCHRP Report 350 criteria accepted Trinity Industries or Trinity Highway’s end treatment system at that location at that time. The FDOT may not create liability for Trinity Industries by using a Trinity Industries component part in an unaccepted random collection of parts at that intersection at that time as that random collection of guardrail parts did not comply with federal law requiring FHWA NCHRP Report 350 criteria accepted guardrail end treatment systems to be used on highways funded by federal funds. 136. Some or all of Plaintiff’s claims are barred by the doctrines concerning unavoidably unsafe products, including, but not limited to, the operation of comments i, j, and k to Section 402A of the Restatement (Second) of Torts and/or barred by the Restatement (Third) of Torts. See Ellison v. Northwest Engineering Co., 521 F.Supp. 199, 202 (S.D. Fla. 1981). 137. Plaintiff’s claims are barred in whole or in part by the applicable provisions of the United States Constitution, the Florida Constitution and/or the applicable Constitution of any other State or Commonwealth of the United States whose laws might be deemed controlling in 36 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 37 of 43 PageID 982 this case. These provisions include, but are not limited to, the First Amendment to the Constitution of the United States and/or Art. I, §4 of the Constitution of the State of Florida because Trinity Highway’s commercial speech regarding the marketing of highway guardrail end treatment systems was neither false nor misleading. 138. Any verdict or judgment rendered against Trinity Industries must be reduced by those amounts that have been, or will, with reasonable certainty, replace or indemnify Plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral source such as insurance, social security, automobile insurance or Florida No-Fault, workers’ compensation, or employee benefit programs. See Goble v. Frohman, 901 So.2d 830 (Fla. 2005); §768.76, Fla. Stat. 139. The proximate cause of Plaintiff’s alleged injuries was a subsequent material modification or alteration of the products at issue, which was not reasonably expected by Trinity Industries. Plaintiff’s claims are barred in whole or in part by the provisions of Florida law and/or the corresponding laws of any other State or Commonwealth of the United States whose laws might be deemed controlling in this case. 140. Plaintiff’s claims against Trinity Industries are barred because Plaintiff knowingly and voluntarily assumed and/or incurred the risk of injury and Plaintiff’s claims are barred or should be reduced under the principles of assumption of risk and/or informed consent. Plaintiff’s claims are barred in whole or in part by the provisions of Florida law and/or the corresponding laws of any other State or Commonwealth of the United States whose laws might be deemed controlling in this case. 141. Based on the state of scientific, medical, and technological knowledge existing at the time the highway guardrail end treatment systems were allegedly designed, developed, 37 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 38 of 43 PageID 983 manufactured, produced, marketed, assembled, tested, distributed, or sold by Trinity Highway, said products were reasonably safe for their normal and foreseeable use at all relevant times, or in light of existing reasonably available medical, scientific, and technological knowledge 142. Any injuries or expenses incurred by Plaintiff were not caused by Trinity Industries, but may have been proximately caused, in whole or part, by the unforeseen subsequent material modification or alteration, unintended use, misuse or abuse of the products referenced in Plaintiff’s Amended Complaint. Plaintiff’s claims are barred in whole or in part by the provisions of Florida law and/or the corresponding laws of any other State or Commonwealth of the United States whose laws might be deemed controlling in this case. 143. In the unlikely event that Trinity Industries is found liable to the Plaintiff, Trinity Industries is entitled to a credit or offset for any and all sums that the Plaintiff has received or may hereafter receive by way of any and all settlements arising from Plaintiff’s claims and causes of action including but not limited to automobile insurance and Florida’s No-Fault statutory provisions. Trinity Industries alternatively asserts its right to a proportionate reduction of any damages based on comparative fault or the percentage of negligence attributable to Plaintiff or to any settling tortfeasor under Florida law and/or the laws of any other State or Commonwealth of the United States whose laws might be deemed controlling in this case. 144. Plaintiff’s claims are barred by the limitations and defenses set out in the §768.1257, Fla. Stat. and/or the corresponding laws of any other State or Commonwealth of the United States whose laws might be deemed controlling in this case, including, but not limited to, the state-of-the-art defense defined in Florida law. Trinity Industries incorporates by reference all defenses and/or limitations set forth or referenced in the Florida law and the corresponding 38 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 39 of 43 PageID 984 laws of any other State or Commonwealth of the United States whose laws might be deemed controlling in this case. 145. Plaintiff’s claim for punitive damages violates, and it is therefore barred by, the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States of America on grounds including the following: (a) It is a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution to impose punitive damages, which are penal in nature, against a civil defendant upon the plaintiff satisfying a burden of proof which is less than the “beyond a reasonable doubt” burden of proof required in criminal cases; (b) procedures pursuant to which punitive damages are awarded may result in the award of joint and several judgments against multiple defendants for different alleged acts of wrongdoing, which infringes upon the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution; (c) the procedures pursuant to which punitive damages are awarded fail to provide a reasonable limit on the amount of the award against defendant, which thereby violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution; (d) the procedures pursuant to which punitive damages are awarded fail to provide specific standards for the amount of the award of punitive damages which thereby violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution; (e) the procedures pursuant to which punitive damages are awarded result in the imposition of different penalties for the same or similar acts, and thus violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 39 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 40 of 43 PageID 985 (f) the procedures pursuant to which punitive damages are awarded permit the imposition of punitive damages in excess of the maximum criminal fine for the same or similar conduct, which thereby infringes upon the Due Process Clause of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; (g) the procedures pursuant to which punitive damages are awarded permit the imposition of excessive fines in violation of the Eighth Amendment of the United States Constitution; (h) the award of punitive damages to plaintiff in this action would constitute a deprivation of property without due process of law; and (i) the procedures pursuant to which punitive damages are awarded permit the imposition of an excessive fine and penalty 146. With respect to Plaintiff’s demand for punitive or exemplary damages, Trinity Industries specifically incorporates by reference all standards of limitations regarding the determination and enforceability of punitive damages awards, including but not limited to, those standards of limitation which arose in BMW of North America v. Gore, 517 U.S. 559 (1996), Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001), and State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003). 147. Trinity Industries hereby gives notice that it intends to rely upon every defense available to it under Fla. Stat. Title XLV, § 768.1256, Government Rules Defense. 148. Trinity Industries hereby gives notice that it intends to claim all benefits and rely upon every defense available to it under Fla. Stat. Title XLV, §§ 768.72, 768.725 and 768.73 regarding punitive damage claims. 40 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 41 of 43 PageID 986 149. Trinity Industries states that in the event an award for future economic loss is in excess of $250,000.00, this Defendant is entitled to seek payment as provided by Section 768.78, Fla. Stat. 150. Trinity Industries alleges that Plaintiff’s damages are subject to being apportioned by and between parties, non-parties, pre-existing conditions, idiosyncratic reactions and acts of nature. 151. If Plaintiff has agreed not to sue, or have compromised or otherwise reached some arrangement with any other parties, then such is a complete bar to this action as satisfaction thereof. In the alternative, should the Court find this not to be a bar, the jury should be advised of Plaintiff’s agreements, and any monetary amounts involved, so that Trinity Industries can be credited with, or receive an offset for, said amounts Plaintiff has already received, so as to prevent a double recovery by Plaintiff. 152. The Plaintiff’s Amended Complaint is barred in whole or in part because the subject accident was unforeseeable and unavoidable. 153. Plaintiff’s claims are barred in that the product in question was substantially altered after it left possession, custody or control of the manufacturer and, on the date of the alleged injury, said product was not in substantially the same condition as it was when it left the manufacturer. 154. Plaintiff cannot recover against Trinity Industries due to superseding or intervening causes, on any claim asserted based on any alleged negligence or other conduct based on its part or any alleged defect in the product in question, because neither Trinity Industries nor any conduct by it or products manufactured by it was the proximate cause of the Plaintiff’s alleged injuries. 41 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 42 of 43 PageID 987 155. If it is determined that Plaintiff was exposed to any of Trinity Industries’ products or components sold to or used on behalf of the United States of America, the State of Florida or any other state, then Trinity Industries is entitled to any sovereign or governmental immunity available to the United States or to the State of Florida or such other state. 156. If the damages complained of in Plaintiff’s Amended Complaint arose from the consumption of alcohol or drugs, Plaintiff’s claims are barred by Section 768.36, Fla. Stat. WHEREFORE, Defendant Trinity Industries, Inc. requests that Plaintiff’s Amended Complaint, and all claims alleged therein, be dismissed with prejudice, that Trinity Industries, Inc. be awarded the costs, disbursements, and attorneys’ fees in the defense of this action, demands a jury trial and that Trinity Industries, Inc. be granted any other relief to which it may be entitled. CERTIFICATE OF SERVICE I HERBY CERTIFY that on November 7, 2012 I electronically filed the foregoing with the Clerk of the Middle District of Florida by using the CM/ECF system which will send a notice of electronic filing to THEODORE J. LEOPOLD, ESQUIRE, 2925 PGA Boulevard, Suite 200, Palm Beach Gardens, Florida 33410 and U. S. Mail to RUSSELL C. BROWN, ESQUIRE, P. O. Box 1780, Henderson, TX, 75653-1780. /s/ Francis E. Pierce, III_______ FRANCIS E. PIERCE, III Fla. Bar No. 270921 MATEER & HARBERT, P.A. P. O. Box 2854 Orlando, FL 32802 Telephone 407-425-9044 Facsimile 407-423-2016 fpierce@mateerharbert.com And 42 Case 5:12-cv-00146-UATC-PRL Document 56 Filed 11/07/12 Page 43 of 43 PageID 988 RUSSELL C. BROWN, ESQUIRE P. O. Box 1780 Henderson, TX 75653-1780 ATTORNEYS FOR TRINITY INDUSTRIES, INC. 4819-0526-6705, v. 1 43