Highly Contested Defective Bullet Proof Vest Case Ends in Victory for Whistleblower
Attorney General Sessions Condemns Companies That Sell Defective Equipment to First Responders
Washington D.C. March 15, 2018. The U.S. Department of Justice, whistleblower Aaron Westrick, Ph.D., and Toyobo, Co., Ltd. announced a settlement in one of the most hotly contested False Claims Act qui tam cases in American history. The settlement ends a 13-year legal battle over whether Toyobo conspired to sell unsafe Zylon bullet proof vests to American police departments, federal law enforcement agencies and the U.S. military.
Toyobo agreed to pay the United States $66 million to settle allegations that it violated the False Claims Act. Dr. Westrick will obtain a qui tam whistleblower reward of $5.77 million.
The case originated in 2001, when Toyobo informed Second Chance Body Armor (“SCBA”), formerly the largest bullet proof vest company in the United States, that Zylon may experience degradation.
At the time of Toyobo’s notification to, Dr. Westrick was the SCBA Director for Research and Marketing, and a rising star in the body armor industry. Before he was employed by SCBA, Dr. Westrick was shot in the chest by a criminal and would have died had he not been wearing a Kevlar vest while on duty as a Michigan Deputy Sherriff. As a police officer and a “save,” Dr. Westrick was extremely concerned about the safety of body armor made from Zylon, especially because he had witnessed first-hand the importance of having effective protective clothing. Dr. Westrick recommended that SCBA test the Zylon vests. SCBA adopted this recommendation.
The testing results demonstrated that the Zylon vests were deteriorating at an alarming rate.
In response to these poor results, Toyobo and SCBA entered into an agreement to keep the testing results secret. The nondisclosure agreement prohibited both parties from informing the government (including their law enforcement customers) about the test results.
On December 18, 2001 Dr. Westrick grew increasingly alarmed at the Toyobo-SCBA cover-up and wrote a memo to the President of SCBA urging SCBA to “immediately notify our customers of the degradation problems we are experiencing” with the Zylon vests. He informed his supervision that SCBA should “make the right difficult decisions” and “do the right things and not hesitate.” The “obvious safety issues” should “not be hidden.” SCBA ignored this recommendation.
Instead, Toyobo and SCBA entered into a secret “rebate” agreement in which Toyobo would make "incentive payments" to SCBA, if SCBA "promoted" the sale of Zylon vests "to the police force." Upon signing the agreement, Toyobo paid SCBA an immediate “retroactive rebate” of $1.421 million.
In 2002, the President of SCBA wrote a confidential memo to the SCBA Executive Board acknowledging that the Zylon vests were dangerous, and explicitly urged the company to warn police. The memo included two possible solutions:
“Solution #1) We continue operating as though nothing is wrong until one of our customers is killed or wounded, or … some other entity exposes the Zylon problem,” or
“Solution #2) We publish and circulate an ad denouncing all [Zylon] vests and decline to make them anymore, unless … the customer is fully aware of the [Zylon] shortcomings.”
The SCBA General Counsel ordered that all copies of the memo be shredded, and that the document be removed from the SCBA computer system. All copies of the memo were destroyed, except for one copy preserved by Dr. Westrick, which he eventually provided to the United States and other law enforcement agencies in violation of the General Counsel’s instruction. SCBA continued to sell the Zylon vests and did not issue any warnings.
On June 13, 2003, the first Zylon vest failed. Officer Tony Zeppetella died in the line of duty when his vest failed.
On June 23, 2003, Officer Ed Limbacher was shot through his vest under ballistic conditions for which the vest should have worked. He was permanently injured.
Dr. Westrick promptly “leaked” all of his documentation concerning defects of Zylon, and the Toyobo-SCBA cover-up, to representatives of Officer Limbacher, counsel for Officer Zeppetella‘s widow, and numerous state Attorney General’s offices, permitting those agencies to successfully settle class action and personal injury cases. Dr. Westrick testified in the Zeppetella case, providing critical evidence that resulted in the jury awarding Zeppetella’s widow $1.5 million in damages based on the failure of SCBA and Toyobo to warn police officers of the dangers from Zylon.
In 2004, Dr. Westrick filed this case against SCBA and Toyobo under the qui tam whistleblower provisions of the False Claims Act (“FCA”), the United States intervened in the case June 1, 2005.
Toyobo maintained that it had no liability for the vests, arguing that SCBA should be blamed as it manufactured the actual vests, and that Toyobo only sold the raw Zylon to SCBA. This argument was convenient, as SCBA went bankrupt, primarily due to its Zylon-related liabilities.
Toyobo mounted an unprecedented 13-year scorched earth defense, using every possible legal maneuver to escape liability for selling unsafe body armor to police, federal agents and the U.S. military.
The case settled on the eve of an anticipated six-week jury trial. At a pretrial conference held on February 22, 2018, Dr. Westrick moved the Court to permit the jury to find Toyobo guilty of conspiracy with SCBA, thus undermining Toyobo’s principle defense, and permitting the jury to hold Toyobo accountable for all the vest sales made by SCBA. Over Toyobo’s strenuous objection, Dr. Westrick’s request was granted. That same evening, Toyobo gave up, agreeing to a settlement in principle with the United States.
Dr. Westrick is currently a tenured professor at Lake Superior State University in Sault Ste. Marie, Michigan and has been an active Michigan Deputy Sheriff since 1981. He is also an active member of the International Association of Chiefs of Police and the Fraternal Order of Police. He responded to the announcement of the settlement:
“I only wanted SCBA and Toyobo to stop selling the Zylon vests and warn police officers, federal agents, and members of our Armed Services, all of whom who had purchased the vests that they were not safe. I tried to convince my company to stop its cover-up. They refused. As a result, I lost my job and career. However, others suffered far more, including Officer Limbacher, Officer Zeppetella and Officer Zeppetella’s widow and young child.
“I have no regrets. I would blow the whistle again. The defective Zylon product was taken off the market and Toyobo (along with other companies) were held accountable. I urge anyone who learns that government contractors are selling police officers or members of our military unsafe products to seek counsel and step forward. President Abraham Lincoln signed the False Claims Act into law in 1863 precisely because greedy contractors were selling the Union army defective products. The law empowers to people to stop these criminal acts of greed.
“I am proud that the United States joined in my False Claims Act case, and aggressively sought justice in this matter.”
Stephen M. Kohn, a partner in the law firm of Kohn, Kohn and Colapinto – who served as Dr. Westrick’s lead counsel throughout the case said:
“Dr. Westrick is a true American hero. As a policeman, he put his life on the line protecting the public and was shot in the chest by a depraved criminal. The bullet hit his chest. His life was saved by a Kevlar vest, which stopped the bullet from hitting his heart.
“When he worked for SCBA, he likewise served the public interest. He lost his job and career in the body armor industry by exposing Zylon safety risks. He was fired while giving deposition testimony in the personal injury cases of the two police officers harmed by the vest failures. He provided documents and testimony justifying the removal of Zylon from the market, and compensation to states and the federal government due to the immoral sale of Zylon vests.
“Toyobo’s 13-year legal battle took a major toll on Dr. Westrick and his entire family. His children, who were 20, 17, and 11 when he was fired from SCBA in 2005, grew up under the financial stress caused by the termination and the emotional stress caused by the litigation.
“The False Claims Act was enacted to protect and reward whistleblowers like Dr. Westrick, who sacrifice for the public interest, save taxpayers millions of dollars, and ensure that products sold to front-line responders are safe.”
In a statement released today by the DOJ, Attorney General Jeff Sessions said
“Bulletproof vests are sometimes what stands between a police officer and death. Selling material for these vests that one knows to be defective is dishonest, and risks the lives of the men and women who serve to protect us. The Department of Justice is committed to the protection of our law enforcement officers, and today’s resolution sends another clear message that we will not tolerate those who put our first responders in harm’s way.”
Throughout the 13-year litigation several other defendants, or companies implicated in the scandal, reached smaller settlements. One defendant remains in the case, the former President of SCBA, who has denied liability. That case is expected to go to trial in June 2018.
Dr. Westrick and his lead counsel Stephen Kohn wish to acknowledge the numerous attorneys, interns and law clerks who helped with the case over its fourteen year history, including KKC partner David K. Colapinto who also served as co-counsel on the case since it was originally filed in 2004. KKC partner Michael Kohn played a key role in the case, along with Mary Jane Wilmoth. Legal Fellows Kelsey Condon, Todd Michael Yoder and Aaron Jordan all helped with the final pretrial-push. Other attorneys who previously assisted in this case, or in a number of related cases (including a successful qui tam case under California state law), include Anthony Munter, Eric Snyder, Rachel Capler and Mark Kleiman.
Dr. Westrick’s book, Use of Force Investigation is available at www.westrickphd.com. The book has chapters on body armor use and reliability. It also recounts the incident when Dr. Westrick was shot in the chest in the line of duty, and his life was saved by a vest.