WILMINGTON, DEL. - Mobil Corp. allegedly altered Army Corps of Engineers test results on its plastic lumber product intended for use as weather- and pest-resistant highway guardrail supports, an Arkansas-based competitor says in federal court documents. As a result of that alleged fraud, Fairfax, Va.-based Mobil sold its Timbrex plastic lumber to transportation departments in Virginia, New Hampshire, Nebraska and Georgia, according to a brief filed by Advanced Environmental Recycling Technologies Inc. of Springdale, Ark.
Florida initially approved, but stopped the use of the Mobil product on the basis of altered federal highway administration documentation. Connecticut, where Mobil Chemical has its headquarters, did not approve use of the composite lumber.
Mobil officials, in court documents, said the charges are ``totally false.''
A government official said Mobil's product passed relevant crash tests. However, he said highway officials are investigating the allegation.
AERT made the allegation in a brief filed in U.S. District Court in Wilmington to support a motion for a new trial. AERT had lost a patent infringement case brought by Mobil in 1992.
AERT's original motion for a new trial in the Delaware District is sealed by the court.
Despite the alleged fraud, a federal transportation official wrote AERT President Joe G. Brooks June 30 to note that Mo-bil's material had passed twosets of highway simulation crash tests and any alteration of results would not affect whether the material and its use in guardrail blockouts was accepted for use by the federal government.
``If we had known of the problem, we probably would have found the blockouts acceptable by virtue of passing crash tests,'' said the letter, from Jerry L. Poston, Chief of the Federal Highway Administration's Federal Aid and Design Division.
``As to whether the alteration involved fraudulent or criminal activity, I am not in a position to make a determination. We are therefore, forwarding a copy of this correspondence to the Office of the Inspector General [for the Department of Transportation] for consideration,'' concluded Poston's letter.
Poston's letter was inresponse to a May 26 letter to Rodney E. Slater, federal highway administrator, from Brooks, which said ``AERT has uncovered what may have been a very serious, fraudulent and possibly criminal conspiracy involving attempts to gain federal and state department of transportation approvals and sales, for what appears to have been a less than fully developed and questionable quality material for roadside highway safety hardware.''
The letter continues, ``Federal Highway Administration approval documents appear to be altered by removing references to damaging or negative prior taxpayer-funded product testing results or by deleting certain portions of official correspondence or studies, and then, by what appears to be altering the signature location by cutting and pasting.''
In a similar letter to Canadian officials, Brooks alleged ``the seriousness of this matter has now caused the U.S. FHwA to turn this matter over to the U.S. Department of Transportation Inspector General's office.'' He wrote that letter July 25 to Judith Hoffman, an appeals officer with the Information and Privacy Commission for the Canadian province of Ontario. AERT was requesting documentation involving Mobil's efforts to have Timbrex offset blocks approved by the Canadian government.
Mobil's alleged fraud initially was brought to federal District Judge Joseph J. Farnan's attention in a March 14 letter from AERT attorney R. Judson Skaggs of Wilmington, Del.
In response, Mobil's Washington counsel, Patrick Coyne, in a March 23 letter to Farnan, said AERT had lodged ``serious but totally false allegations. Mobil is a responsible company and we have investigated Mr. Skaggs' charges thoroughly. There is no basis for Mr. Skaggs' charges.''
Mobil's formal response, filed April 7 in the court, also is sealed by the court for the proprietary information it contains.
Mobil spokesman John Lord said Sept. 5 the firm would decline to describe the substance of the sealed documents.
``The documents were sealed because this is a patent case. A number of documents on both sides are sealed because of this,'' said Lord.
The AERT reply brief making the allegations was filed April 26. It contends Mobil removed the second page of a three-page Corps of Engineers test results summary, and in doing so left out the most damaging data.
Though both AERT's and Mobil's opposition remarks are sealed, AERT's attorneys made reference to the official Mobil response in further open documentation filed with the court.
In a May 3 letter, Skaggs' legal partner, Douglas E. Whitney,
noted ``Mobil was forced to concede that a damaging document was altered and that only the altered version was produced to AERT, despite the fact that boththe original and a second, revealing copy were in Mobil's files and ordered to be produced by Court order.
``Moreover,'' the Whitney let-ter continued, ``AERT has recently learned that the doctored document, misleading as it was, had been submitted to at least four state agencies in Mobil's attempts, by covering up its product failures, to gain governmental approval of Timbrex.''
Federal and Ontario transpor-tation officials would not con-firm if they are investigating fraud charges against Mobil.
The outcome of any purported investigations could figure prominently in the four-year legal battle between Mobil and AERT over lumber patents. AERT has asked for a new trial in the federal Circuit Court in Washington.
AERT has been involved in a federal court imbroglio with Mobil since 1992, contending it changed the process to make its Timbrex lumber in violation of AERT patents. Currently, the federal court holds that AERT's four patent claims are invalid.
