IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41172

UNITED STATES OF AMERICA, EX REL., JOSHUA HARMAN, 

 Plaintiff - Appellee 

v. 

TRINITY INDUSTRIES INC.; TRINITY HIGHWAY PRODUCTS LLC, 

 Defendants - Appellants 

Appeal from the United States District Court

for the Eastern Division of Texas 

Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges. 

PATRICK E. HIGGINBOTHAM, Circuit Judge: 

The trial in this case offers two narratives. One of a hardworking man

who, angered by failures of guardrails installed across the United States—with 

sometimes devastating consequences—persuaded a Texas jury of a concealed 

cause of those failures. The other of the inventive genius of professors at Texas 

A&M’s Transportation Institute, who, over many years of study and testing, 

developed patented systems including guardrails that, while saving countless 

lives, cannot protect from all collisions at all angles and all speeds by all 

vehicles—guardrails that have been installed throughout the United States

United States Court of Appeals

Fif h Circuit

FILED

September 29, 2017

Lyle W. Cayce

Clerk

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2 

with an approval from which the government has never wavered as it 

reimbursed states for the installation of a device integral to the system. 

Despite a formal statement issued on the eve of trial from the 

government affirming that approval and a caution from this court that the case 

ought not proceed, seven jurors in a six-day trial in Marshall, Texas, found that 

the government had been defrauded. We will describe, but not decide, the 

substantial challenges to the jury’s findings of liability and damages as an 

essential backdrop to the challenge we ultimately sustain, one that ends this 

litigation. We hold that the finding of fraud cannot stand for want of the 

element of materiality. Therefore, we reverse and render judgment as a matter 

of law for Trinity. 

I. 

Early highway guardrail systems helped prevent drivers from running 

off the road, attended by a lesser but significant risk—in a head-on collision 

with an automobile, the blunt ends of the guardrails could “spear” or penetrate 

vehicles’ passenger compartments. Attempts to mitigate this risk by burying 

the end of the guardrail were successful, but created a different risk; guardrails 

ceased to spear automobiles, but proved to act as a launch ramp, rolling outof-control vehicles, sometimes back into traffic. As part of its many years of

ongoing research and testing aimed at improving highway safety, engineers at 

the Texas A&M Transportation Institute (“TTI”) developed a guardrail “end 

terminal” system known as the ET-2000, which, with modification in 1999, 

became the ET-Plus.1 In a head-on collision, the ET-Plus’ terminal (or 

extruder) head flattens and extrudes the guardrail away from the vehicle while 

simultaneously “gating” the vehicle by the sequential failures of the pre-drilled 

posts carefully laced and spaced to meet design specifications for the system, 

 1 See Appendix A. 

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all to slow speeding vehicles to survivable stops and substantially lessen the 

risk posed by the rails. Trinity Highway Products, LLC, a subsidiary of Trinity 

Industries, Inc. (“Trinity”), manufactures the ET-Plus system under an 

exclusive licensing agreement with Texas A&M University—in short, TTI 

engineers the product and Trinity manufactures it according to TTI’s design. 

ET-Plus systems are sold to highway contractors and installed along many 

highways throughout the country. 

The Federal Government subsidizes many state highway improvements, 

reimbursing states for the installation of guardrail end terminal systems 

meeting its standards. At times relevant here, acceptance by the Federal 

Highway Administration (“FHWA”) was a prerequisite to eligibility for federal 

reimbursement. FHWA could require testing of products, unless they “are 

nearly certain to be safe” or “so similar to currently accepted features that 

there is little doubt that they would perform acceptably.” And changes to 

approved systems must also be submitted for approval unless an exercise of 

good engineering judgment finds they were not significant.2

The original ET-Plus system was successfully tested by TTI, and on 

January 18, 2000, FHWA accepted the ET-Plus for use on the National 

Highway System. At that time, the ET-Plus was designed for 273⁄4-inch high 

guardrails. By 2005, the increase of vehicles with higher centers of gravity—

e.g., SUVs—turned the research to taller guardrails. Trinity and TTI 

developed a modified ET-Plus system for use with 31-inch guardrails. TTI 

crash tested the new ET-Plus at the 31-inch height and prepared a report on 

the tests, which Trinity sent to FHWA. On September 2, 2005, FHWA 

approved the modified ET-Plus for the 31-inch guardrail height. 

 2 This will be explained.

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Before testing the new guardrail height, Trinity changed the guide 

channel width in the ET-Plus’ terminal head from five inches to four inches, 

accompanied by necessary fabrication changes (“2005 changes”). Trinity 

contends that a modified version of the extruder head was included in the 31-

inch guardrail system when it was crash tested in 2005. Trinity also maintains 

that it prepared and sent a detailed drawing of the ET-Plus head with the 2005 

changes to TTI to be included in the report sent to FHWA. TTI did not include 

the drawing when it prepared the crash test report that Trinity later forwarded 

to FHWA. The body of the 2005 crash test report discussed the changes made 

to accommodate the 31-inch guardrail height, but not the changes in guide 

channel width or the related fabrication changes.3

Joshua Harman had been a customer of Trinity, purchasing their 

products and installing them in the eastern United States. Harman was also a 

one-time competitor of Trinity, manufacturing his own end terminal heads 

through SPIG and Selco, businesses he owned with his brother.4 SPIG and 

Selco failed. And Trinity sued Harman, once for patent infringement related to 

 3 Joshua Harman argues that Trinity has provided no proof that the head units tested 

in 2005 included one with the 2005 changes. Trinity maintains that such a head unit was 

included in the 2005 testing, as A&M Professor Dr. Bligh testified to at trial. In a videotaped 

deposition introduced into evidence during trial, FHWA representative Nicholas Artimovich 

explained that, after learning of the 2005 changes, he reviewed video footage from the 2005 

testing and concluded that “the tests done in 2005 used a terminal head with [the narrower] 

feeder channel.” There is no contrary evidence. 

4 The district court excluded evidence that these heads were the source of many of 

Harman’s problems, as unapproved SPIG heads were installed across the Commonwealth of 

Virginia with falsified documents to secure payment from the Virginia Department of 

Transportation. As a result, Virginia’s State Materials Engineer removed Selco from the 

approved installers list. In a pretrial hearing, the district court said such evidence was 

“improper” and “a backdoor way to attack [Harman’s] character.” That ruling is not 

challenged on appeal. 

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SPIG-manufactured heads in 2011 and twice for defamation related to his 

campaign against the ET-Plus.5 

Harman hoped to compete with Trinity and “with the entire industry” 

again in the future, admitting on cross-examination that he intended to use 

the proceeds from this litigation to recapitalize his business and begin 

manufacturing competing end terminals. Trinity presented evidence to the 

jury that an investment manager prepared a prospectus to pitch to potential

SPIG investors in February 2014, advertising that a “[r]ecall of Trinity’s 

modified end terminals would mean removal and replacement of 

approximately one million units in the [United States], a one-billion-dollar 

revenue opportunity windfall for SPIG” and noting that SPIG had “[p]lans to 

capture 20 percent of the U.S. end terminal market in 18 to 24 months, then 

continue rapid growth to take market share from an exposed Trinity.” 

 Harman testified that he set out on a cross country trip looking for 

accidents involving guardrails; that he acquired between six and eight ET-Plus 

heads; and that he found five changes that he believed were causing the 

accidents. The primary change was the narrowing of the guide channel from 

five inches to four inches. Harman also noted a shortened guide channel and 

feeder chute; a narrower exit gap; a change from a flush “butt weld” to a “fillet 

weld,” diminishing the height of the extruder throat; and a steeper angle of the 

side plates.6 At trial, Harman claimed that all of these changes resulted in “a 

complete[ly] new product.” Unable to find records of FHWA approval for these 

changes, Harman presented his findings to FHWA in January 2012 via an 

 5 The patent suit settled. The defamation suits were each voluntarily dismissed by 

Trinity.

6 See Appendix B. 

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extensive PowerPoint presentation that included explanations of the 2005 

changes and accident scene photographs.7 

It is undisputed that, at that meeting, Harman discussed the change 

from a five- to four-inch guide channel, the shortening of the guide channel,

the change in the exit gap from one and a half inches to one inch, the 

diminished height of the extruder chamber, and that “in [his] view, there had 

to be significant other changes as well.” Nicholas Artimovich, an FHWA 

representative, took photographs and measurements of the heads Harman 

provided at the meeting. 

FHWA then met with Trinity in February 2012 to discuss Harman’s 

allegations. Trinity explained that, while the change in the guide channel 

width was inadvertently omitted from the report sent to FHWA, the May 2005 

crash test was of an ET-Plus system with a modified terminal head. FHWA 

met twice more with Harman and his counsel. Around that same time, FHWA 

responded to inquiries about the ET-Plus from various state departments of 

transportation by confirming that the ET-Plus was eligible for reimbursement.

On March 6, 2012, Harman filed a sealed False Claims Act (“FCA”) suit

in the Eastern District of Texas. The government reviewed the complaint and 

declined to intervene ten months later. The court then unsealed the complaint 

and discovery began. On March 13, 2014, as a July trial date loomed, Harman’s 

counsel requested that FHWA make its employees available for deposition

(“Touhy request”). Harman argued that Trinity still had not disclosed the 

 7 The PowerPoint includes slides discussing the change from five- to four-inch feeder 

chute, a reduced rail height from 15.375 to 14.875 inches, a shorter, narrower feeder chute 

that intrudes into the extruder throat, “ledges” near the top and bottom of the extruder throat 

created by the feeder chute intrusion, a smaller exit gap, and pictures of what Harman 

argued was the resulting “throat lock.” 

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fabrication changes to the ET-Plus beyond the change from a five- to four-inch 

guide channel.8

On June 17, 2014, FHWA released an official memorandum that stated 

that it had “validated that the ET-Plus with the 4 inch guide channels was 

crash tested in May 2005,” that “[t]he Trinity ET-Plus with 4-inch guide 

channels became eligible for Federal reimbursement . . . on September 2, 

2005,” and that there was “an unbroken chain of eligibility for Federal-aid 

reimbursement [that] has existed since September 2, 2005, and the ET-Plus 

continues to be eligible today.” On the same day, DOJ responded to Harman’s 

Touhy request by emailing a copy of the memorandum with the following cover 

note: 

Please find attached a memorandum issued by FHWA today that 

addresses all of the issues raised by the parties in their respective 

requests for information. DOT believes that this should obviate the 

need for any sworn testimony from any government employees. If 

the parties disagree, please let me know at your earliest 

convenience.9

Trinity moved for summary judgment on the basis of the June 17, 2014 

memorandum, which the district court denied from the bench.10 

A jury trial commenced on July 14, 2014; four days into that trial the 

district court sua sponte ordered a mistrial, citing gamesmanship and 

 8 In this letter, Harman also repeated his list of fabrication changes that he alleged 

were still undisclosed. Specifically, Harman claimed that Trinity had not disclosed “(1) the 

change from a 5 inch rail feeder chute to a 4 inch rail chute; (2) changes to the exit gap; (3) 

changes to the feeder chute assembly; (4) changes to the feeder chute assembly length; and 

(5) other changes to the ET-Plus.”

9 For reasons not clear from the record, the district court excluded this statement from 

evidence, a ruling consistent with Harman’s contention that the opinion of the government 

does not matter. 

10 Harman also moved for partial summary judgment, and his motion was likewise 

denied.

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inappropriate conduct by both parties. Following the mistrial, Trinity asked 

this court for a writ of mandamus, which this court denied while warning: 

This court is concerned that the trial court, despite numerous 

timely filings and motions by the defendant, has never issued a 

reasoned ruling rejecting the defendant’s motions for judgment as 

a matter of law. On its face, FHWA’s authoritative June 17, 2014 

letter seems to compel the conclusion that FHWA, after due 

consideration of all the facts, found the defendant’s product 

sufficiently compliant with federal safety standards and therefore 

fully eligible, in the past, present and future, for federal 

reimbursement claims. While we are not prepared to make the 

findings required to compel certification for interlocutory review 

by mandamus, a course that seems prudent, 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.11

The case proceeded to trial for a second time the following Monday. After 

a six-day trial, the jury returned a verdict for Harman. The next day, facing 

widespread publicity of the verdict and inquiries of state Attorneys General, 

the government did not withdraw its approval of the ET-Plus units; rather, it 

sought independent testing of the units and confirmation by a separate joint 

task force that the units being tested were the same as those installed across 

the country. On November 17, 2014, Trinity renewed its motion for judgment 

as a matter of law under Rule 50(b).12 

The independent testing ordered by FHWA was performed between 

December 10, 2014, and January 6, 2015. Awaiting the testing, Trinity 

suspended the sale of ET-Plus systems. A joint task force—consisting of state, 

federal, and foreign transportation experts—examined over one thousand

existing ET-Plus installations across the country between November 2014 and 

January 2015 and concluded that: (1) “[t]here is no evidence to suggest that 

 11 In re Trinity Indus., Inc., No. 14-41067 (5th Cir. Oct. 10, 2014). 

12 FED. R. CIV. P. 50(b).

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there are multiple versions [of the ET-Plus] on our nation’s roadways” and (2) 

the units that were crash tested were “representative of the devices installed 

across the country.”13 FHWA announced these findings in a March 11, 2015 

press release. With that confirmation, the government’s approval of the units 

remained in place and Trinity renewed its sales.14

On June 9, 2015—after the results of the post-trial crash tests and 

dimensions studies were released—the district court denied Trinity’s motion 

for judgment as a matter of law and entered final judgment that same day for 

Harman and the United States in the amount of $663,360,750—consisting of 

$575,000,000 in trebled damages and $138,360,750 in civil penalties for 16,771 

false claims—plus an additional $19,012,865 in attorney’s fees and costs. 

Trinity then moved for a new trial based on, among other things, the results of 

the post-trial crash tests and the findings of the joint task forces, which the 

district court denied on August 3, 2015.15 This appeal followed. 

II. 

“A district court’s resolution of a motion for new trial is reviewed for 

abuse of discretion, and [t]he district court abuses its discretion by denying a 

new trial only when there is an absolute absence of evidence to support the 

 13 FHWA and the American Association of State Highway and Transportation 

Officials (AASHTO) formed two joint task forces to investigate the ET-Plus. The second joint 

task force was assigned to “review[] a broad range of crash reports from multiple sources to 

determine if the ET-Plus has potential vulnerabilities that could compromise its ability to 

perform as designed.” That review has not yet been completed and published. 

14 Of course, this evidence was not before the jury. But in denying Trinity’s Rule 50(b) 

motion, the district court relied on the post-trial test in ruling that, at the time of the June 

17, 2014 memorandum, FHWA did not have enough information to approve the product. We 

disagree—FHWA, responsive to widespread news of the verdict and the resulting unease of 

states with the system leading to inquiries from states Attorneys General, ordered additional 

testing from independent testing labs, but did not withdraw its earlier decision. The results 

of those tests confirmed rather than undermined the earlier decision. 

15 Trinity also claimed that a new trial was warranted on the basis of the excessive 

damages award, the court’s failure to submit the number of false claims to the jury, the 

excessive fines clause, and “because the verdict is against the weight of the evidence.” 

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jury’s verdict.”16 “A motion for a new trial or to amend a judgment cannot be 

used to raise arguments which could, and should, have been made before the 

judgment issued.”17 Rule 60(b)(2) allows a party to seek post-judgment relief 

on the basis of “newly discovered evidence that, with reasonable diligence, 

could not have been discovered in time to move for a new trial under Rule 

59(b).”18 “Moreover, [t]he newly discovered evidence must be in existence at 

the time of trial and not discovered until after trial.”19

While our review of the district court’s denial of a Rule 50(b) renewed 

motion for judgment as a matter of law is de novo, “our standard of review with 

respect to a jury verdict is especially deferential.”20 A party is only entitled to 

judgment as a matter of law on an issue where no reasonable jury would have 

had a legally sufficient evidentiary basis to find otherwise.21 

III. 

 Trinity asked the district court and now this court for a new trial on the 

basis of newly discovered evidence—namely, the post-trial crash tests and the 

dimensions report. This evidence is compelling and rebuts much of Harman’s 

case at trial. However, we need not consider the question of post-judgment 

relief under Rule 60(b) here because we find that Trinity is entitled to 

judgment as a matter of law on the issue of materiality. Thus, we advert to the 

 16 McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463, 472 (5th Cir. 2015) (quoting 

Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013)) (internal quotation 

marks omitted).

17 Garriot v. NCsoft Corp., 661 F.3d 243, 248 (5th Cir. 2011) (quoting Simon v. United 

States, 891 F.2d 1154, 1159 (5th Cir. 1990)) (internal quotation marks omitted).

18 FED. R. CIV. P. 60(b)(2).

19 Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 158 (5th Cir. 2004) (quoting Longden 

v. Sunderman, 979 F.2d 1095, 1102-03 (5th Cir. 1992)) (internal quotation marks omitted).

20 Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016) (quoting Evans v. Ford Motor 

Co., 484 F.3d 329, 334 (5th Cir. 2007)) (internal quotation marks omitted).

21 FED. R. CIV. P. 50(a)(1).

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post-trial testing only in rejecting the district court’s inferences from the 

government’s decision to order the independent testing. 

IV. 

As we will show, the jury’s findings on liability cannot stand for want of 

materiality. Before turning to liability, it is worth noting that Harman’s failure 

to rebut the strong presumption against materiality also manifests in its effect 

on damages. The proper measure of the government’s damages in an FCA 

action where the government received something other than what was 

promised is the standard formulation for contract damages: the difference 

between what was promised and what was received.22 At trial, Harman’s 

damages expert calculated damages assuming the value of the ET-Plus units 

with the 2005 changes was limited to the scrap value of those units.23 Using 

that figure, Harman’s expert reached a total damages figure that was 

apparently adopted by the jury before statutory trebling.24

 22 United States v. Bornstein, 423 U.S. 303, 316 n.13 (1976).

23 Importantly, Harman’s damages expert did not testify that the value of the ET-Plus 

units was actually only the scrap value figure, but that he “was advised by counsel that the 

evidence presented in this trial will show that the units themselves have no value, but that 

I should provide and I was requested to provide a calculation of the scrap metal value simply 

to present to this Court and jury for their consideration.” The expert further testified that 

“[t]here’s no ascertainable value for a non-compliant ET-Plus unit that I could identify, so I 

cannot render an opinion with respect to what the actual benefit to the United States 

Government would be. . . . I have no expertise and – and render no opinion with respect to 

the actual benefit those units have to the United States Government. . . . The premise of my 

calculations is that the ET-Plus is not compliant with the Federal Highway Administration 

standards and that Trinity has certified that, in fact, during the damage period, it was 

compliant with the FHWA standards.” 

24 Harman’s damages expert testified that “the damages that range from the period 

March 6, 2006 through December 31, 2013, the total amount that I estimate that the U.S. 

Government reimbursed the states for their purchase of ET-Plus units is $218,003,273. That 

value will be reduced by the jury’s finding of what the value of a non-compliant ET-Plus unit 

will be, assuming there is a finding of liability in this matter. One value that they could 

consider is the value of the scrap metal that I've indicated before is a value of $42,965,383. 

You would subtract whatever value the jury finds, but in this illustration here the scrap 

metal value being subtracted from the 218-million-dollar amount is a net damage to the U.S. 

Government of $175,037,890.” The jury found that the total amount of actual damages 

suffered by the United States was $175,000,000.

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The problem with this figure is that nothing in the record supports the 

scrap valuation of the ET-Plus. Instead, FHWA’s continued approval of 

reimbursement for the ET-Plus at the same amount strongly suggests that the 

government, the supposedly aggrieved party, considers the value of the units 

with the 2005 changes to be identical to the value of previous ET-Plus units. If 

the government received units of equivalent value, and thus has already 

enjoyed the benefit of its bargain, then the proper measure of actual damages 

should be zero. Trinity could still face civil penalty assessments “of not less 

than $5,000 and not more than $10,000, as adjusted by the Federal Civil 

Penalties Inflation Adjustment Act of 1980” for each individual sale,25 of 

course, and Trinity also claims error in the district court’s refusal to allow the 

jury to determine the number of false claims. Regardless, no award of damages 

can stand because, as we will show, the determination of liability does not. 

And, as we need not, we say no more of this set of damage issues. 

V. 

Trinity argues that Harman failed to meet his burden on each element

of a claim under the FCA, which imposes liability on individuals who defraud 

the federal government.26 “In determining whether liability attaches under the 

FCA, this court asks ‘(1) whether there was a false statement or fraudulent 

course of conduct; (2) made or carried out with the requisite scienter; (3) that 

was material; and (4) that caused the government to pay out money or to forfeit 

moneys due (i.e., that involved a claim).’”27 It is settled that state requests for 

reimbursement are claims for payment under the FCA. We address the other 

elements in turn. 

 25 31 U.S.C. § 3729(a)(1).

26 31 U.S.C. § 3729 et seq.; Universal Health Servs., Inc. v. United States ex rel. 

Escobar, 136 S. Ct. 1989, 1995 (2016).

27 Gonzalez v. Fresenius Med. Care N. Am., 689 F.3d 470, 475 (5th Cir. 2012) (quoting 

United States ex rel. Longhi v. Lithium Power Techs., Inc., 575 F.3d 458, 467 (5th Cir. 2009)).

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A. 

Trinity argues that Harman failed to carry his burden on proving that 

Trinity made “a false statement or [engaged in] a fraudulent course of conduct” 

that caused a false claim for payment to be presented to the United States.28

Harman’s theory is that Trinity certified that the ET-Plus system with the 

2005 changes complied with the FHWA testing requirements, and that these 

false certifications caused states to present resultantly false claims for 

reimbursement to FHWA. In response, Trinity argues that the ET-Plus met 

the required standards at all times and thus any certification of that fact was 

not a false statement. 

Both parties’ falsity arguments turn on whether the modified ET-Plus 

with the 2005 changes complied with requirements set out in the National 

Cooperative Highway Research Program’s (“NCHRP”) Report 350 (“Report 

350”), as adopted by FHWA. Report 350 contains protocols for testing highway 

features, including test parameters, test conditions, data acquisition, 

evaluation criteria, test documentation, implementation, and evaluation. 

FHWA’s reliance on Report 350 grew out of the Intermodal Surface 

Transportation Efficiency Act of 1991 (“ISTEA”).29 ISTEA required the 

Secretary of Transportation to “initiate a rulemaking proceeding to revise the 

guidelines and establish standards for installation of roadside barriers and 

other safety appurtenances,” and thereafter issue a final rule on the matter.30

To comply with ISTEA, FHWA undertook a formal rulemaking process which 

resulted in a final rule in 1993. This rule formally added NCHRP Report 350 

 28 United States ex rel. Spicer v. Westbrook, 751 F.3d 354, 365 (5th Cir. 2014) (citing 

United States ex rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009)); accord 31 

U.S.C. § 3729(a)(1)(B) (liability for person who “knowingly makes, uses, or causes to be made 

or used, a false record or statement material to a false or fraudulent claim” (emphasis added)).

29 Pub.L. 102–240, Dec. 18, 1991, 105 Stat. 1914.

30 Id. at Section 1073(a), (b); 23 U.S.C. § 109 note. 

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to the regulation’s “Guides and references” section.31 That same year, FHWA 

produced a memorandum “[t]o further promulgate application of the guidelines 

in the NCHRP Report 350.” 

In 1997, FHWA issued a policy memorandum (“1997 Policy 

Memorandum”) that read the 1993 rule and memorandum as a “strong 

indication” that, as of the following year, “FHWA would require all new 

installations of highway features on the National Highway System (NHS) that 

are covered in the NCHRP Report 350 to have been tested and found acceptable 

according to the guidelines in that report.” Based on that understanding, 

FHWA stated its policy on compliance: 

Except as modified below, all new or replacement safety features 

on the [National Highway System] covered by the guidelines in the 

NCHRP Report 350 that are included in projects advertised for 

bids or are included in work done by force-account or by State 

forces on or after October 1, 1998, are to have been tested and 

evaluated and found acceptable in accordance with the guidelines 

in the NCHRP Report 350. 

In other words, the 1997 Policy Memorandum required that highway 

safety features demonstrate “acceptable crashworthy performance” in order to 

gain FHWA approval of their use on the nation’s highways, and Report 350 

provided the measure for crashworthiness. Harman and Trinity agree that 

“FHWA regulations require full compliance with Report 350[.]” 

When Trinity sells an ET-Plus system, the invoices often include 

references to bills of lading, which Trinity agrees are “sometimes—but not 

 31 As the FHWA explains in its 1997 guidance: “Through a formal rulemaking process 

that culminated in a final rule in a notice in Volume 58, No. 135, of the Federal Register, 

dated July 16, 1993, the FHWA added Report 350 at paragraph 625.2(a)(13) of Title 23, Code 

of Federal Regulations (23 CFR). Since that time, the ‘Guides and references’ section of 23 

CFR, Part 625, under which the NCHRP Report 350 was cited, has been removed. The 

NCHRP Report 350 is now cited in Section 16, Paragraph (a)(12) of the Non-Regulatory 

Supplement to the Federal-aid Policy Guide, Subchapter G, Part 625 (NS 23 CFR 625).” 

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always—accompanied by a certificate stating that the ET-Plus is ‘NCHRP 

Report 350 Compliant’ or ‘NCHRP Report 350 Tested and Approved.’” Many of 

these ET-Plus systems are sold to state departments of transportation, who 

can seek reimbursement from the federal government for systems placed on 

federal-aid highways. 

The parties dispute the scope of disclosure required by Report 350. 

Harman asserts that the 1997 Policy Memorandum requires that all changes, 

even minor ones, must be disclosed so that FHWA can decide if testing is 

necessary, pointing to language in Report 350 that “seemingly minor 

variations in design details can adversely affect the safety performance of a 

feature.” Harman also emphasizes that, at trial, Trinity Highway Product’s 

President Gregory Mitchell “admitted” that “it was required to get approval 

from the FHWA for the changes but that it did not do so[.]”32 Based on this 

interpretation, Harman maintained at trial that the ET-Plus was not Report 

350 compliant after the 2005 changes because Trinity never disclosed the 

changes to FHWA nor demonstrated that the modified ET-Plus had undergone 

adequate crash testing. Trinity, by contrast, argues that Report 350 did not 

require the disclosure of the 2005 changes because it only requires disclosing 

significant changes. Trinity further maintains that an ET-Plus system with 

the 2005 changes in its head was crash tested in 2005 during the 31-inch 

guardrail height tests and that the changes were obvious and fully disclosed to 

TTI, the inventor of the ET-Plus. 

While Harman argues that FHWA policy requires that “any changes” be 

disclosed to FHWA, he does not direct us to any clear statement of such a 

 32 From its context, it is not clear whether the witness referenced the requirements in 

place at the time of trial or nine years prior when the changes to the ET-Plus were 

implemented—two years before he was employed by Trinity.

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disclosure rule. Nor can we find any. Instead, Harman directs us to the 

following passage in the 1997 Policy Memorandum: 

There are some features that, by their nature, are nearly certain 

to be safe and others that are so similar to currently accepted 

features that there is little doubt that they would perform 

acceptably. For these features, the FHWA may, on a case-by-case 

basis, not require qualification testing or may accept abbreviated 

or unique qualification procedures as the basis for their 

acceptance. 

This passage, in isolation, could be read to require suppliers to alert FHWA to 

any new features or design changes, and could signify, as Harman would have 

it, that FHWA alone can determine whether additional testing is required. Yet 

another passage in Report 350 frustrates this reading: 

It is not uncommon for a designer/tester to make design changes 

to a feature during the course of conducting the recommended test 

series or after successful completion of the test series. Changes are 

often made to improve performance or to reduce cost of the design 

or both. Questions then invariably arise as to the need to repeat 

any or all of the recommended tests. Good engineering judgment 

must be used in such instances. As a general rule, a test should be 

repeated if there is a reasonable uncertainty regarding the effect 

the change will have on the test. 

The plain reading of this additional language is that engineers may use 

their judgment to determine that additional testing is not needed for certain 

design changes. Under Trinity’s view, because a determination of whether to 

test requires “good engineering judgment,” “it ‘cannot be false’ under the FCA.” 

Harman responds that this passage does not speak directly to disclosure 

requirements, and that in any case there is no evidence that good engineering 

judgment was exercised.33

 33 Harman argues that the 2005 changes were not motivated by good engineering 

judgment, but by profit. This profit motive argument is discussed in more detail below in 

connection with Harman’s scienter argument. We note, however, that good engineering 

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While Harman is correct that this section does not address disclosure 

requirements, this uncertainty does not necessarily cut against Trinity. 

Indeed, the regulations as written accept that engineers need not disclose 

changes where, in their good engineering judgment, they deem further testing

unnecessary. Disagreement over the quality of that judgment is not the stuff 

of fraud. 

Trinity also points to the following language in the 1997 Policy 

Memorandum to support its contention that it was not required to report every 

change: “should the FHWA discover subsequent to the issuance of an 

acceptance letter . . . the device being marketed is significantly different from 

the version that was crash tested, it reserves the right to modify or revoke its 

acceptance.” As Trinity reads this language, non-significant modifications are 

permissible without seeking new approval;34 the “good engineering judgment” 

passage would do no work if the policy required that every change be submitted 

to FHWA. 

The jury was never instructed on the requirements of Report 350 

regarding disclosures of changes to approved devices or further testing of 

modifications in approved devices. Indeed, the trial judge did not himself 

decide what Report 350 required until after the verdict. In denying Trinity’s 

Rule 50(b) motion, the district court concluded that “any changes [to roadside 

hardware] must be reviewed by and agreed to by the FHWA.” Applying that 

standard, the district court found that the jury had before it “substantial 

evidence” to support the conclusion that Trinity made false statements when 

 

judgment and the desire to reduce costs—a goal which is explicitly contemplated by Report 

350—are not necessarily mutually exclusive.

34 According to Trinity, “modifications that render the product ‘significantly different’ 

would give FHWA the option to revoke its acceptance. By implication, non-significant 

modifications would not.”

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it asserted the ET-Plus was Report 350 compliant.35 Specifically, the district 

court relied on the “undisclosed [2005] changes” as substantial evidence that 

all post-2005 certifications of the ET-Plus’ Report 350 compliance were false. 

The court also found that the 2005 changes were not an exercise of “good 

engineering judgment” because Trinity made the decision to modify the ETPlus, rather than TTI. The court then indicated that it found Trinity’s 

competing evidence unpersuasive. Finally, the court acknowledged that “[t]he 

jury was free to weigh such competing evidence, judge the credibility of the 

witnesses, and determine the veracity of the testimony presented.” We cannot 

know from the record how the jury interpreted Report 350. And there is a 

powerful argument that leaving to the jury the determination of the law and 

the facts did not include resolution of the uncertainty inherent in the language 

of the policy. 

Despite the district court’s conclusions and Harman’s insistence that the 

1997 Memorandum “makes it clear that disclosure is required and that the 

FHWA decides what tests to run,” the contrary authorities cited by Trinity 

drain much force from Harman’s claim that every change must be disclosed. 

There is a substantial argument that, during the relevant period, FHWA policy 

required disclosure of significant changes, and that significance is a matter of 

engineering judgment. This follows from the plain language of Report 350. 

While this puts the jury verdict and Harman’s falsity theory at risk, we need 

not decide that question today. 

B. 

Trinity argues that even if Report 350 required disclosure of every 

change, Harman still failed to prove that Trinity acted with the requisite 

 35 Specifically, the district court found substantial evidence for the jury “to conclude 

that Trinity’s post-2005 certifications of the ET-Plus as FHWA approved and NCHRP Report 

350 compliant were false.”

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scienter. “The scienter requirement comes from § 3729(b)’s definition of the 

terms ‘knowing’ and ‘knowingly.’”36 “Though the FCA is plain that ‘proof of 

specific intent to defraud’ is not necessary, that mens rea requirement is not 

met by mere negligence or even gross negligence.”37 Rather, the relator must 

demonstrate that the defendant “acted with knowledge of the falsity of the 

statement, which is defined, at a minimum, as acting ‘in reckless disregard of 

the truth or falsity of the information.’”38

 Trinity maintains that it could not have acted knowingly or recklessly if 

it was acting pursuant to a reasonable interpretation of the disclosure 

requirements. As we have explained, Trinity contends that the 2005 changes 

did not have to be disclosed to FHWA. In the alternative, Trinity maintains 

that the disclosure requirements were ambiguous enough that its

interpretation was reasonable. Trinity then claims that a “reasonable 

interpretation of any ambiguity inherent in [a] regulation[] ‘belies the scienter 

necessary to establish a claim of fraud.’”39 Specifically, Trinity asserts that it 

reasonably relied on TTI’s “good engineering judgment” in determining that 

the 2005 changes were not significant—an action consistent with its purported 

understanding of Report 350.40 The trial testimony of TTI engineers supports 

 36 United States ex rel. Longhi v. United States, 575 F.3d 458, 468 (5th Cir. 2009).

37 United States ex rel. Farmer v. City of Hous., 523 F.3d 333, 338 (5th Cir. 2008) 

(quoting 31 U.S.C. § 3729(a)(2); and citing United States v. Krizek, 111 F.3d 934, 941-42 (D.C. 

Cir. 1997)).

38 United States v. Bollinger Shipyards, Inc., 775 F.3d 255, 260 (5th Cir. 2014) (citing 

31 U.S.C. § 3729(b)(1)(A)(iii)).

39 United States ex rel. Ketroser v. Mayo Found., 729 F.3d 825, 832 (8th Cir. 2013). 

Trinity also cites Safeco Ins. v. Burr, 551 U.S. 47, 70 n.20 (2007), holding, in the context of 

the Fair Credit Reporting Act, “[w]here, as here, the statutory text and relevant court and 

agency guidance allow for more than one reasonable interpretation, it would defy history and 

current thinking to treat a defendant who merely adopts one such interpretation as a 

knowing or reckless violator.”

40 At trial, Trinity and TTI employees both agreed that TTI is “responsible for all 

design and testing of the ET-Plus sold in the United States” and that TTI “decides whether 

design changes should be crash-tested before sale.” At trial, Trinity’s President Gregory 

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this claim. Texas A&M engineering professor Dr. Bligh testified that the 

reduction in guide channel width led to an “enhanced, improved product,” and 

that TTI would have recommended evaluation or testing if they had any doubt 

about the changes’ impact.41 Dr. Bligh also testified that, based on his 

engineering judgment, he found no reason to “independently test” the four-inch 

ET-Plus head,42 and that the May 2005 tests were sufficient.43 Another TTI 

employee at the time, Dr. Buth, agreed with this assessment, stating during 

trial that there was no need to run additional tests on the modified ET-Plus 

head because the May 2005 tests left “no question in [his] mind” about what 

additional tests would show.44 Trinity pointed to an email that Trinity’s Vice 

President of International Sales, Brian Smith, sent to TTI engineers asking for 

“[their] thoughts on changing the 5-inch channel on the ET-Plus extruder head 

 

Mitchell testified that Trinity has always relied and depended on TTI for their technical 

expertise regarding the ET-Plus. 

41 Q. In your mind, Dr. Bligh, as you evaluated this decision to go from five to four 

inches, did you have any uncertainty whatsoever that this would be anything but a positive 

improvement? 

A. No, sir, I did not. 

Q. If you had that uncertainty, Dr. Bligh, what would you have done? 

A. We – we either wouldn’t have recommended it or we would have recommended 

other types of evaluation and testing to make sure that those uncertainties were – were 

resolved and evaluated.

42 Q. Did you find any reason in your good engineering judgment to somehow 

independently test the ET-Plus extruder head with the four-inch guide channels? 

A. No, sir. 

Q. Was the test done on May 27, 2005 an opportunity to see that head installed on an 

ET-Plus system.

A. Yes, sir. 

43 Q. In your judgment as an engineer who submits crash test reports to the FHWA 

for consideration, was it your belief that [the May 2005] crash test met the 350 criteria? 

A. Yes, it is.

Q. And how was that demonstrated?

A. The . . . data that was collected in the test was analyzed and . . . compared against 

the criteria that we have in Report 350. 

44 Dr. Buth stated there was no need for a crash test with a pickup truck because none 

of the changes to the ET-Plus head would have changed the result of previous tests with 

pickup trucks. 

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to a 4-inch channel” and requesting that “the sample extruder head be used in 

the ET 31 test that is scheduled for May 25 or 26.” Trinity also provided 

responses from multiple TTI engineers agreeing to the change, including an 

email noting that engineers at TTI’s Riverside campus were “in agreement . . . 

the head should work fine, and [they] [would] install it on the test on May 

25/26.”

Finally, Trinity’s witnesses testified that its own business practice was 

to disclose changes of this type, and that the failure to do so here was 

inadvertent. In support of this argument, Trinity offered evidence that Trinity 

created a drawing of the modified head with the 4-inch channel that TTI 

received. Both Trinity and TTI maintain that the drawing was mistakenly 

omitted from the report sent to FHWA. Harman provided no contrary 

testimony. 

Harman argues that there was sufficient evidence in the record for a 

reasonable jury to conclude that Trinity knowingly misstated compliance with 

FHWA regulations in marketing the ET-Plus or, at least, that its false 

statements were motivated by potential profits and not its understanding of 

the Report 350 requirements. During the trial, Harman presented evidence 

from which he maintains the jury could have reasonably inferred an intent to 

deceive purchasers and conceal the purported fraud. Specifically, Harman 

presented a 2004 email from then-Trinity Highway Products Vice President of 

Operations Steve Brown, noting a potential savings of “$2/ET” or 

“$50,000/year” from the five-inch to four-inch change. In the email, Brown 

stated “I’m feeling that we could make this change with no announcement.”

Jurors also heard testimony by Smith, that it was “standard procedure” to 

communicate with FHWA about proposed changes, and from Mitchell, that he 

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understood the regulations to require Trinity to present proposed changes to 

the FHWA.45

Harman also notes Trinity’s failure to mention the changes to the ETPlus to the FHWA before the May 2005 crash tests, to disclose all of the 

changes to the ET-Plus beyond the change in guide channel width even after 

Harman disclosed those other changes in his 2012 PowerPoint presentation,46

and to disclose the five failed flared crash tests that Harman claimed deceived 

the government.47 Harman argues that Trinity’s “wrongful intent” is 

“evidenced by [its] own actions to conceal its fraud.” 

As with falsity, this question is far closer than Harman paints it. The 

email that serves as Harman’s evidence of a profit motive also states that “we’ll 

[sic] could get a better ET” and lists potential improvements as a result of the 

change. Moreover, Harman’s profit motive argument is emptied of force in 

 45 Q. Okay. Now, isn’t it true, sir, that in order for Trinity to get approval for a 

modification of a product that Trinity must present the proposed change to the FHWA and 

then perform the tests required by the FHWA and then to truthfully and accurately report 

the results of the test; isn’t that true, sir?

A. I believe that to be true, yes.

Q. And you did not do that in 2005, is that not true, sir?

A. Mistakenly, yes.

Q. Okay. And isn’t it also true that it is the FHWA and only the FHWA that makes 

the decision whether a test should be done and what that test should be; isn’t that also 

correct, sir?

A. That is correct.

Q. In fact, the FHWA specifically requires that, doesn’t it?

A. Yes, it does.

. . .

Q. Now, it’s true, sir, is it not, that the FHWA has made it very clear that if you put a 

product on the road and you get approval, that you must – you must disclose or certify that 

the product that you’ve – you’re selling has not changed in any significant degree; isn’t that 

correct, sir?

A. It is correct.

(emphasis added).

46 Trinity’s president testified that he did not recall discussing other changes and that 

the “conversation was focused on the 5- to 4-inch channel.” 

47 Harman focused on the five failed crash tests in response to the government’s eveof-trial approval letter, making them relevant to the materiality issue, as we will explain. 

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context, where the “profit” would be only $50,000 a year, less than one-tenth 

of one percent of Trinity’s gross profit. Such a sum lends little force to an 

inference of fraudulent intent. It also ignores the fact that Trinity’s entire 

highway products business only accounted for approximately 7-15% of Trinity’s 

revenue between 2006 and 2010.48 Finally, Harman’s interpretation overlooks 

Trinity’s plan to confer with TTI about the changes. In his email, Smith 

expressed a willingness to “consider some pendulum or sled testing, if that’s 

what we need to convince TTI that we should roll this out.” Further, Smith 

stated that the change could be made with no announcement “[i]f TTI agrees.” 

There is no suggestion that these contemporaneous statements were untrue, 

and they indicate that Trinity planned to seek TTI’s engineering judgment on 

the changes before rolling out the modified ET-Plus head. And, more to the 

point, the evidence shows that Trinity did so. Indeed, there is evidence that 

TTI did exercise the “good engineering judgment” which Trinity sought and 

upon which it relied. That evidence was challenged only by counsel’s 

sometimes misleading assertions and cross-examination.49

Finally, as mentioned, Trinity asserts that it transmitted a detailed 

drawing of the 2005 changes to TTI, which it intended to be included with other 

data in the crash test report submitted to FHWA. Trinity argues that TTI’s 

omission of the drawing was inadvertent, and its transmittal to TTI cuts 

against Harman’s claim that they intentionally hid the changes from the 

 48 In investor presentations filed with the SEC, Trinity allocates its revenue across 

five different market groups, including the Construction Products Group (CPG), which 

comprises highway products, concrete & aggregates, and other. Trinity reported that the CPG 

was responsible for 18-27% of the company’s outside revenue from 2006 to 2010. Of that 

revenue, between 34-53% came from highway products (including highway guardrails and 

end terminals). 

49 For example, Harman’s counsel referred to Trinity as “TI,” for which he was 

admonished by the court due to concerns about confusing Trinity and TTI.

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FHWA. Harman argues that despite this testimony, because he was unable to 

find a copy of the drawing, the jury was free to conclude that it did not exist. 

There is a strong argument that a reasonable jury could not have found 

that Trinity, acting in reliance on TTI, possessed the requisite scienter in 

certifying compliance with Report 350, particularly in light of the Report 350’s

ambiguity. We need not make that decision today, for this judgment cannot 

stand for an even more compelling reason. 

C. 

Trinity argues that, in light of FHWA’s express rejection of Harman’s 

claim and continued reimbursement of state purchases of the ET-Plus, 

Harman has failed to carry his burden on materiality. Materiality under the 

FCA has been a topic of increasing scrutiny since the Supreme Court’s decision 

in Escobar.50 There, Justice Thomas, writing for a unanimous court, explained 

that “[t]he materiality standard is demanding” and “cannot be found where 

noncompliance is minor or insubstantial.”51 In evaluating whether a 

misstatement is material, “the Government’s decision to expressly identify a 

provision as a condition of payment is relevant, but not automatically 

dispositive.”52 Most importantly for this case: 

[I]f the Government pays a particular claim in full despite its 

actual knowledge that certain requirements were violated, that is 

very strong evidence that those requirements are not material. Or, 

if the Government regularly pays a particular type of claim in full 

despite actual knowledge that certain requirements were violated, 

and has signaled no change in position, that is strong evidence that 

the requirements are not material.53

 50 Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016).

51 Id. at 2003.

52 Id.

53 Id. at 2003-04.

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Our approach to materiality, as stated in Longhi, is that “the FCA 

requires proof only that the defendant’s false statements ‘could have’ 

influenced the government’s pay decision or had the ‘potential’ to influence the 

government’s decision, not that the false statements actually did so,”54 the socalled “natural tendency test.”55 The Supreme Court approved this standard in 

Escobar, writing that “the term ‘material’ means having a natural tendency to 

influence, or be capable of influencing, the payment or receipt of money or 

property,”56 and “look[s] to the effect on the likely or actual behavior of the 

recipient of the alleged misrepresentation.”57 Here, FHWA insists that the 

2005 changes did not affect the decision to purchase the end terminals either 

in the past or the future. Instead, the agency’s June 17, 2014 memorandum 

establishes that despite the modifications, the modified ET-Plus “became 

eligible [in 2005] and continues to be eligible].” 

Our sister circuits offer guidance on the impact of the government’s 

continued payment. On remand, the First Circuit in Escobar applied “the 

holistic approach to materiality laid out by the Supreme Court”58 in 

determining that the relator had met its burden on materiality, holding that, 

while a decision to pay in full despite actual knowledge that requirements were 

violated is very strong evidence against the materiality of those requirements, 

no single element is dispositive.59 Unlike in the case we decide today, the court 

found no evidence that the relevant government agency had actual knowledge 

 54 United States ex rel. Longhi v. United States, 575 F.3d 458, 469 (5th Cir. 2009).

55 Id. at 470 (citing United States v. Bourseau, 531 F.3d 1159, 1171 (9th Cir. 2008)).

56 Escobar, 136 S. Ct. at 2002 (internal quotation marks omitted).

57 Id. (internal quotation marks omitted) (emphasis added).

58 United States ex rel. Escobar v. Universal Health Servs., Inc., 842 F.3d 103, 110 (1st 

Cir. 2016).

59 Id. 

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of any violations when it decided to pay the claims.60 The court did not decide 

whether the government’s actual knowledge alone disproves materiality. 

A month later, in a case involving an alleged fraud on the Food and Drug 

Administration (“FDA”), the First Circuit affirmed dismissal under Rule 

12(b)(6), writing that “[t]he fact that [the Centers for Medicare and Medicaid 

Services] [have] not denied reimbursement for [the device] in the wake of [the 

relator’s] allegations casts serious doubt on the materiality of the fraudulent 

representations that [the relator] alleges.”61 The court then turned from 

materiality to causation, emphasizing that the FDA did not withdraw its 

approval of the device in the six years following the relator’s allegations and 

expressing its fear that allowing the FCA claims to go forward “would be to 

turn the FCA into a tool with which a jury of six people could retroactively 

eliminate the value of FDA approval and effectively require that a product be 

withdrawn from the market even when the FDA itself sees no reason to do 

so.”62 While the court was addressing the causation element, given the 

conceptual juncture points of materiality and causation, its cautions remain 

forceful in the materiality context: “[t]he FCA exists to protect the government 

from paying fraudulent claims, not to second-guess agencies’ judgments about 

whether to rescind regulatory rulings.”63

In Sanford-Brown,64 the Seventh Circuit affirmed dismissal of an FCA 

claim, finding a failure to establish the element of materiality where “the 

subsidizing agency and other federal agencies in this case ‘have already 

 60 The court noted that “Relator’s Second Amended Complaint only cites 

reimbursements paid up to ‘the filing of this litigation’ on July 1, 2011. It would appear that 

[Massachusetts’ Department of Public Health] did not conclusively discover the extent of the 

violations until March 2012, well after the commencement of the litigation.” Id. at 112. 

61 D’Agnostino v. ev3, Inc., 845 F.3d 1, 7 (1st Cir. 2016).

62 Id. 

63 Id. 

64 United States v. Sanford-Brown, Ltd., 840 F.3d 445, 447 (7th Cir. 2016). 

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examined [the for-profit higher education enterprise] multiple times over and 

concluded that neither administrative penalties nor termination was 

warranted.’”65 

Even before Escobar hammered home the “rigorous” nature of 

materiality, the Seventh Circuit rejected an FCA claim where “[t]he 

government learned of [the] plaintiffs’ concerns, thoroughly investigated them, 

and determined that they were meritless.”66 In Marshall, two relators brought 

an FCA suit against a military contractor, asserting that the company did not 

comply with its own specifications when manufacturing a part used in military 

helicopters.67 The relators had reported their concerns to two government 

agents, one of whom then conducted an investigation into the manufacturing 

process.68 At one point in the investigation, one of the defendant’s employees 

made a false statement about the manufacturing process, though the 

investigator noted that he was not misled by the statement and “even if the 

government was misled . . . , it has since been made aware of [defendant’s] 

actual practices yet continues to buy and use the [product].”69 In the face of 

this evidence, the court found that “the government’s actual conduct suggests 

that the allegedly false statements were immaterial” and affirmed the district 

court’s finding of immateriality.70

In Kelly,71 the Ninth Circuit addressed materiality under the FCA in 

connection with a government contractor’s internal accounting procedures.72

 65 Id. (quoting United States v. Sanford-Brown, Ltd., 788 F.3d 696, 712 (7th Cir. 

2015)).

66 United States ex rel. Marshall v. Woodward, Inc., 812 F.3d 556, 563 (7th Cir. 2015). 

67 Id. at 558. 

68 Id. at 561. 

69 Id. at 561, 564

70 Id. at 563-64.

71 United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325 (9th Cir. 2017).

72 Id. at 328-29.

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Relator Kelly, an analyst at Serco, “informed [the Department of Homeland 

Security] that Serco’s monthly cost reports were unreliable because they 

tracked costs manually and with a single charge code in violation of the 

guidelines” and “that Serco was falsifying its monthly reports to make its 

actual costs match the expected budget for the AWS Project.”73 In affirming 

summary judgment for Serco, the court held that “[g]iven the demanding 

standard required for materiality under the FCA, the government’s acceptance 

of Serco’s reports despite their non-compliance with [the relevant guidelines], 

and the government’s payment of Serco’s public vouchers for its work . . . we 

conclude that no reasonable jury could return a verdict for Kelly on his implied 

false certification claim.”74

In McBride,75 a military morale, welfare, and recreation vendor inflated 

soldier headcount data and, as a result, received an outsized fee.76 The district 

court granted summary judgment for the vendor, and the D.C. Circuit 

affirmed, in part because: 

[W]e have the benefit of hindsight and should not ignore what 

actually occurred: the [Defense Contract Audit Agency] 

investigated [the relator’s] allegations and did not disallow any 

charged costs. In fact, [the vendor] continued to receive an award 

fee for exceptional performance . . . even after the Government 

learned of the allegations. This is “very strong evidence” that the 

requirements allegedly violated by the maintenance of inflated 

headcounts are not material.77

In Petratos,78 the relator alleged fraud on the FDA involving off-label 

uses of the drug Avastin and disclosed the alleged fraud to the relevant federal 

 73 Id. at 329.

74 Id. at 334.

75 United States ex rel. McBride v. Halliburton Co., 848 F.3d 1027 (D.C. Cir. 2017).

76 Id. at 1029.

77 Id. at 1034 (citing Escobar, 136 S. Ct. at 2003).

78 United States ex rel. Petratos v. Genentech Inc., 855 F.3d 481, 490 (3d Cir. 2017).

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agency.79 In finding that it was not material to a payment decision, the court 

explained that: 

Since that time, the FDA has not merely continued its approval of 

Avastin for the at-risk populations that Petratos claims are 

adversely affected by the undisclosed data, but has added three 

more approved indications for the drug. Nor did the FDA initiate 

proceedings to enforce its adverse-event reporting rules or require 

Genentech to change Avastin’s FDA label, as Petratos claims may 

occur. And in those six years, the Department of Justice has taken 

no action against Genentech and declined to intervene in this 

suit.80

The court noted that, “[i]n holding that [the relator] did not sufficiently plead 

materiality, we now join the many other federal courts that have recognized 

the heightened materiality standard after [Escobar].”81

The lesson we draw from these well-considered opinions is that, though

not dispositive, continued payment by the federal government after it learns of 

the alleged fraud substantially increases the burden on the relator in 

establishing materiality. Notably, these cases do not fully address the gravity 

and clarity of the government’s decision here. This system was installed 

throughout the United States, and the government’s rejection of Harman’s 

assertions, if in error, risked the lives on our nation’s highways, not just undue 

expense. Where violations of the “certain requirements” described by Escobar

involve potential for horrific loss of life and limb, the government has strong 

incentives to reject nonconforming products, and Escobar’s cautions have 

particular bite when deployed to decisions as here. Further, this case is not 

about inferring governmental approval from continued payment. Here, the 

government has never retracted its explicit approval, instead stating that an 

 79 Id.

80 Id. (emphasis omitted). 

81 Id. at 492.

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“unbroken chain of eligibility” has existed since 2005. 

That said, there are and must be boundaries to government tolerance of 

a supplier’s failure to abide by its rules. A recent Ninth Circuit opinion offers 

guidance. In Campie,82 the Ninth Circuit reversed dismissal under Rule 

12(b)(6) for failure to state a claim, holding that questions of materiality 

remained even where the FDA had continued to pay for the drug. There, the 

relator alleged that Gilead utilized an unapproved vendor in China for a 

critical component of its HIV drugs for at least two years before the FDA 

approved the vendor.83 On appeal, Gilead argued that the government’s 

continued payment for the drugs after revelation of the alleged FDA violations 

demonstrated that “those violations were not material to its payment 

decision.”84 The court rejected that argument at the pleading stage, finding 

that: (1) questions remained as to whether the approval by the FDA was itself 

procured by fraud; (2) there existed other potential reasons for continued 

approval that prevent judgment for the defendant on 12(b)(6); and (3) the 

continued payment came after the alleged noncompliance had terminated and 

“the government’s decision to keep paying for compliant drugs does not have 

the same significance as if the government continued to pay despite 

noncompliance.”85 The court also noted that as the parties dispute exactly what

and when the government knew, calling into question its actual knowledge, 

the relator had “sufficiently plead[ed] materiality at this stage of the case.”86

Trinity argues that “[w]hen the government learns of the alleged falsity, 

evaluates the relator’s allegations, and then formally approves the product, 

courts have uniformly held that there is no ‘material’ false statement.” Trinity 

 82 United States ex rel. Campie v. Gilead Sciences, Inc., 862 F.3d 890 (9th Cir. 2017).

83 Id. at 895-96.

84 Id. at 906.

85 Id.

86 Id. at 906-07.

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also argues that the decision to continue approving and purchasing the product 

was not made by a low-level bureaucrat, but rather by FHWA itself, and thus 

has special force. Additionally, Trinity directs us to DOJ’s evaluation of the 

claim, contained in its response to Harman’s Touhy request, rejecting the 

request because the June 17, 2014 memorandum “addresses all of the issues 

raised by the parties . . . . DOT believes that this should obviate the need for 

any sworn testimony from any government employees.” Because Harman’s 

claims were rejected by FHWA in an official memorandum, and because FHWA 

continues to pay for the ET-Plus to this day, Trinity argues that Harman has 

failed to carry his burden in establishing that any false statement was material 

to the government’s payment decision. 

Harman counters that the post-revelation actions of the government are 

not determinative in an FCA action, even post-Escobar, and that the standard 

for materiality is holistic and no single element is dispositive. Harman further 

argues that the relevant decision makers—state departments of 

transportation who actually purchased the ET-Plus based on the false 

statements of compliance with Report 350—have either outright banned 

purchase or “have all but stopped buying the ET-Plus” in light of the trial 

verdict, which Harman argues cuts strongly in favor of a finding of materiality. 

While we agree with our sister circuits that no single factor is outcome 

determinative, the “very strong evidence” here of FHWA’s continued payment 

remains unrebutted. The concerns of the several states in response to the 

verdict do no work here. The very inquiry is question-begging—the initial

reticence of some state departments of transportation to purchase the ET-Plus 

units arose after the verdict and its widespread publicity. Such caution is 

understandable. Of course, unexplained information about the verdict alone 

would be material to decision makers. Recall that, responsive to those 

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concerns, the federal government itself halted sale after the verdict to await 

independent testing without ever retreating from its decision to continue 

reimbursing the ET-Plus system. Moreover, eleven states (including states 

which initially suspended use of the ET-Plus after trial) filed an amicus brief 

in support of Trinity in this action. Additionally, Harman filed nine additional 

qui tam lawsuits under state FCAs; of the nine states involved, all but one 

declined to intervene in the action. 

Confronted with the reality that the government was aware of all the 

charges of noncompliance with Report 350 when it wrote its June 2014 

memorandum, Harman argued at trial that the memorandum itself was 

procured by fraud. Specifically, Harman relied on the fact that Trinity failed 

to disclose all of the changes to the ET-Plus to FHWA, both in 2005 and in 

subsequent conversations with FHWA, and that Trinity deceived the 

government by concealing five failed flared crash tests. In sum, Harman 

contends that the jury had evidence before it that Trinity concealed changes to 

the ET-Plus both in 2005 and when called to account in 2012, and that 

concealment—when combined with other evidence in the record of the 

purported failures of the ET-Plus system on the nation’s highway and in flared 

crash tests—was sufficient to undercut FHWA’s 2014 position. 

While FHWA’s decision to continue reimbursing ET-Plus units would be 

undermined if, as Harman alleges, FHWA acted unaware of the facts claimed 

to be fraud, undisputed evidence in the record does not bear that out. As we 

will explain, FHWA knew about changes to the guide channel width and 

attendant fabrication changes when it expressed its continued approval of the 

ET-Plus system. The memorandum stated FHWA’s position that even though 

Trinity “inadvertently omitted” information about the 2005 changes, “the ETPlus w-beam guardrail end terminal became eligible on [September 2, 2005] 

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and continues to be eligible for Federal-aid reimbursement.” In fact, Harman’s 

own disclosures ensured that FHWA issued its June 17, 2014 memorandum 

with knowledge of the narrowed guide channel and related fabrication 

changes. 

On arrival of the June 17 memorandum, failure to disclose five failed 

crash tests became a centerpiece of the trial, as Harman’s counsel reached for 

any facts that the government did not know when it sent the June 

memorandum and responded to the Touhy request.87 He injected these failed 

tests countless times throughout the trial, starting with a reference during voir 

dire. The tests came up again in opening argument, where Harman’s counsel 

stated explicitly that FHWA’s 2014 approval memorandum was “based on 

critically withheld information, such as those five failures.” Harman’s counsel 

then told the jury: 

[T]his fraud has gone over a period of about almost 10 years, and 

I’ve just barely touched the evidence, but I want you to know that 

you’re the first people in the United States of America that will get 

to hear the whole story. The Federal Highway Administration has 

not heard it. No one has heard it. 

Harman’s counsel grilled his expert Dr. Coon, TTI’s Dr. Bligh, and 

Harman himself—all about tests that cast no light on the ET-Plus’ 

performance in the use for which it was approved. Counsel returned to the five 

failed tests during closing. Once again pointing out that the jury “are the very 

first people in America to see those five failed tests . . . before the FHWA even 

heard about them.” He then told jurors that Trinity ought to answer some 

questions, including why they did not tell FHWA about the five failed tests.88

 87 The district court excluded evidence of the five failed tests in the first trial, as it did 

the photographs of various automobile encounters with guardrails. However, the district 

court reversed course in the second trial.

88 Harman’s counsel continued: “They owe you an answer for that besides just waving 

their arms and saying it was experimental.” 

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But these “five failed tests” were actually of a distinct, experimental 

system—not the type of ET-Plus system on American roadways. Thus, this

evidence does not in any way go to the government’s approval of the ET-Plus 

for its intended use on a tangent system. There was no obligation for Trinity 

to disclose and no evidence that the information was hidden from FHWA. 

Remarkably, Harman’s argument is not that the five failed flared crash 

tests go to the fraud on which his claim is based—whether the ET-Plus was 

Report 350 compliant as Trinity certified. Rather, Harman argues that 

Trinity’s nondisclosure of those failures was a separate fraud, and thus the 

government’s continued approval of the modified ET-Plus was “procured by 

fraud.” But, as Harman’s expert Dr. Coon admitted at trial, the flared ET-Plus 

system was never commercialized or even submitted to FHWA for approval.

Dr. Bligh explained that the five failed crash tests were part of an experiment 

as part of its ongoing research of new flared guardrail systems. Dr. Bligh

explained that, because the system was flared rather than tangent—parallel—

to the roadway, it posed distinct difficulties: 

The commercial ET-Plus system is what we call a tangent terminal 

system. . . . [W]hen we’re developing a flared system, it’s a 

completely different geometry and configuration. And, in fact, in 

that particular situation, you would have the terminal 

significantly flaring away from the roadway. So it’s quite a 

difference in the configuration.

The results of those tests were that TTI determined that the ET-Plus 

head would not correct the weaknesses of a flared configuration, and 

instructions were given to installers to that effect. At best, these flared tests 

were only determinant of the range of safety concerns treatable by the ET-Plus 

as modified. That it would not mitigate the hazards of a distinct system (for 

which no disclosure was required) is not evidence of its utility in an approved 

system. Tests of the experimental system had no bearing on the government’s 

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approval of the system that was in place and working. In unchallenged 

testimony, Dr. Bligh explained that, since the testing did not offer a solution, 

the project was abandoned and the flared system was never submitted to 

FHWA for approval; that, in his experience at TTI, results of experimentation 

are not presented to FHWA; and that, although FHWA was aware that Trinity 

and TTI were searching for solutions to weaknesses of a distinct experimental 

system, FHWA never requested the results of those experiments, nor did they 

want them. Harman’s counsel conflated the experimental flared system with 

the tangent system actually in use on American highways, creating the 

impression that the flared tests demonstrated something dangerous about the 

modified ET-Plus heads.89 But returning the “five failed tests” to their context 

makes plain that the tests demonstrated no failure of the ET-Plus units but 

only showed an effort to mitigate the ongoing weaknesses of a distinct 

system—the flared system. Trinity and TTI did not submit a new system to 

FHWA for approval, they had no new system. Harman’s reliance on these 

undisclosed failed tests as evidence of fraud was misplaced; they have no 

relevance here. The district was correct in excluding them in the first trial. 

In sum, Harman’s argument that FHWA’s decision was procured by 

fraud because of the failure of Trinity and TTI to disclose the crash test failures 

 89 This approach was most apparent in the examination of Dr. Bligh, where Harman’s 

counsel asked the following while talking about the failed flared tests: 

Q. How many times did you call the FHWA and say I’ve got these five failed tests on 

this prototype head, and I just wanted you to know what was happening? Did you do that?

A. No, we did not. We don’t submit our R&D tests to FHWA.

Q. All right. Even when you’ve got a failure on a – on a product out in the highway 

and you hit it head-on just like you did in you test, you decided not to say anything about it, 

right? 

A. No, sir. That is not a product that was on the highway. That was a research and 

development product for a flare terminal.

Q. Well, this head was on the highway, wasn’t it? 

A. The head is one component of a system.

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of an experimental flared ET-Plus system is unavailing because: (1) those tests 

involved a different system than the tangent ET-Plus system that is at issue 

here; (2) FHWA does not require, and neither Trinity nor TTI have a history of 

disclosing, information regarding failed research and development 

experiments; and (3) FHWA was aware that Trinity and TTI were 

experimenting with a flared ET-Plus and did not request information on that 

project.90 

Reliance on these alleged omissions and misrepresentations was in error. 

Here, the relevant inquiry is not what Trinity disclosed, but what FHWA knew 

at the time it issued the June 17, 2014 memorandum, no matter the source. By 

that point, FHWA had seen Harman’s extensive PowerPoint presentation, 

FHWA officials had taken measurements and photographed the ET-Plus head 

units that Harman had presented to them, and FHWA had access to the 

allegations made in Harman’s complaint and reiterated in the Touhy request. 

Even if Trinity deliberately withheld information from FHWA, it does not 

mean that the government’s decision that the ET-Plus remained eligible for 

reimbursement was the product of ignorance—Harman’s PowerPoint 

presentation and the allegations in his FCA suit informed FHWA of the 2005 

changes. And still FHWA paid because it was not persuaded by the allegations.

As we have explained, the government’s position was clear before trial. 

By June 2014, FHWA had knowledge of all of Harman’s allegations and still 

approved the ET-Plus. And, as the D.C. Circuit wrote in McBride, “we have the 

benefit of hindsight and should not ignore what actually occurred”91—given 

FHWA’s unwavering position that the ET-Plus was and remains eligible for 

 90 The False Claims Act does not contain an independent duty to disclose certain 

information. 31 U.S.C. § 3729. “There can only be liability under the False Claims Act where 

the defendant has an obligation to disclose omitted information.” United States ex rel. Berge 

v. Bd. of Trustees of Univ. of Ala., 104 F.3d 1453, 1461 (4th Cir. 1997).

91 McBride, 848 F.3d at 1034.

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federal reimbursement, Trinity’s alleged misstatements were not material to 

its payment decisions. The other evidence in the record, viewed most favorably 

to Harman, is insufficient to overcome this “very strong evidence.” 

This position was reaffirmed by extensive independent testing after trial 

that examined more than 1000 ET-Plus units across the country. After 

conducting crash tests of the ET-Plus with the 2005 changes, FHWA’s 

determination that the ET-Plus is eligible for federal reimbursement has not 

changed to this day.92 While this post-trial evidence was not before the jury, 

the district court made use of it in denying post-trial relief to Trinity. This use 

was, unfortunately, selective. The district court treated the requests for posttrial testing as evidence that the government had insufficient information 

about the ET-Plus to determine its eligibility. In doing so, the court looked past 

the fact that the test results concluded that (1) the ET-Plus units tested after 

trial passed crash tests conducted pursuant to Report 350 criteria and (2) the 

ET-Plus units tested post trial were representative of those in service across 

the country. The district court’s reliance on the post-verdict tests in its denial 

of a new trial was flawed in a more fundamental way. The verdict sent shock 

waves throughout the states. The testing responded to the concern provoked 

by the verdict. FHWA directed one outside testing facility to test the challenged 

system and a second to verify that the tested system was the same as systems 

installed throughout the United States, a conclusion that reaffirmed the 

government’s view, one that never changed. 

Finally, none of the factors that the Ninth Circuit found warranted 

caution in Campie93 exist here. First, the record in this case leaves no question 

 92 The district court did not rely on the “five failed tests” in its post-verdict suggestion 

that the government was uncertain in its approval of the purchases, to its credit, and 

expressed concern pretrial over the late arriving assertion, efforts consistent with his able 

management of this litigation. 

93 United States ex rel. Campie v. Gilead Sciences, Inc., 862 F.3d 890 (9th Cir. 2017).

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about “what the government knew and when.” Instead, the record 

demonstrates that FHWA continued to reimburse the ET-Plus units with full 

knowledge of Harman’s claims about the product’s purported deficiencies. Nor 

has Harman come forward with any evidence that FHWA’s decision was 

procured wrongfully—through collusion between Trinity and FHWA or some 

other form of corruption. Nothing in the record here supports an inference that 

FHWA’s approval was made to shield Trinity or FHWA itself from the 

consequences of past decisions. Nor has Trinity reformulated the ET-Plus to 

remove the 2005 changes. Rather, FHWA has not changed its position 

regarding the eligibility of the ET-Plus and still considers it eligible for 

reimbursement to this day, a weighty decision. Finally, it is plain that FHWA 

is no “captured agency.” The response of the Attorneys General of the several 

states and of the Justice Department itself make clear that the decision of the 

FHWA was made and adhered to with sensitivity to the interests of many

levels of state and federal government. 

VI. 

Congress enacted the FCA to vindicate fraud on the federal government, 

not second guess decisions made by those empowered through the democratic 

process to shape public policy. The Act does so by aligning the interests of the 

government and that of the relator through a shared purse. That a relator 

seeks personal gain is embedded in the statute and should not, alone, cast 

doubt on his claims. That Harman was a one-time competitor of Trinity, with 

a past history of adversarial litigation, however, may raise an eyebrow. That 

his intended use for the proceeds from this litigation was to capitalize his failed 

businesses and fill the market void left by Trinity with a product sharing at 

least three of the “defects” he railed against at trial may give greater pause. 

But ultimately, the problems this case presents runs deeper. 

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The judgment before us falls far short of the FCA’s true setting and fails 

to account for its congressional purpose in drawing upon private litigation to 

protect public coffers. The government has never been persuaded that it has 

been defrauded. It so advised Harman after his repeated meetings disclosing 

the changes in the product he says was wreaking havoc on America’s highways, 

leaving him to file his own suit as was his statutory right. Following discovery, 

as he made his eve-of-trial Touhy request that the government produce officials 

to testify, the Department of Justice declined, once again sending the message 

that the government did not believe itself to be a victim of any fraud, a position 

from which it has not to this day retreated. 

The force of this decision comes into focus as we bring to mind its stakes. 

The product here is of a class under constant development by dedicated

engineering faculty and students at Texas A&M University in an ongoing effort 

to mitigate the risks on all the country’s highways of leaving the road, at travel 

speed, into trees, creeks, and myriad other unyielding obstacles. At best these 

roadside barriers can only mitigate—they cannot erase the risks attending all 

unintended exits, nor can they assure safety at all speeds, angles, and weights. 

For example, even today, they are only required to be tested at collision speeds 

of 62 miles per hour. There have always been deadly accidents involving 

roadside barriers—an unfortunate reality of our automobile-centric culture. 

The government has responded at every turn to Harman’s challenge. In 

turning back his views and proofs, it balances the federal fisc, motorist safety, 

and other factors across the spectrum of myriad presentations to disclaim 

victim status. Such decision making is policy making, not the task of a sevenperson jury—such a result confounds the premise of qui tam actions: that the 

government was the victim. The district court observed that to allow the 

government to forgive a completed fraud stands qui tam on its head. 

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Respectfully, we must disagree with our able colleague who sits on the firing 

line. Rather, as we see it, it is the opposite. 

It is charged that the accused product remains along nigh every highway 

in America, killing and maiming, but the government will not remove it. We 

can assume that this and contrary views are debatable, but we must accept 

that the choice among them lies beyond the reach of seven citizens of Marshall, 

Texas, able though they may be. As revered as is the jury in its resolution of 

historical fact, its determination of materiality cannot defy the contrary 

decision of the government, here said to be the victim, absent some reason to 

doubt the government’s decision as genuine. For the demands of materiality 

adjust tensions between singular private interests and those of government 

and cabin the greed that fuels it. As the interests of the government and relator 

diverge, this congressionally created enlistment of private enforcement is 

increasingly ill served. When the government, at appropriate levels, repeatedly 

concludes that it has not been defrauded, it is not forgiving a found fraud—

rather it is concluding that there was no fraud at all. 

**** 

For the above reasons, we REVERSE and RENDER judgment as a 

matter of law for Trinity. 

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Appendix A 

A diagram of the ET-Plus system prepared by TTI and Trinity. 

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Appendix B 

A diagram prepared by Harman listing the purported changes to the ET-Plus 

terminal head in 2005. 

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