Dr. Aaron Westrick was the research director for America’s largest body armor company – Second Chance Body Armor – and was the first official to oppose the sale of bulletproof vests made with Zylon fiber. Based on his whistleblower disclosures, these defective vests were forced off the market and police officer’s lives were saved.
Dr. Westrick is the subject of a one hour documentary featuring highlights of his case and the scandal behind the sale of faulty Zylon vests. The CBS show “Whistleblower” featuring Dr. Westrick aired on Friday, August 17, 2018 at 10/9c, but still can be seen online.
Whistleblower law firm Kohn, Kohn & Colapinto represented Dr. Westrick in a False Claims qui tam action filed in 2004 against manufacturers of bullet proof vests and the manufacturer of the Zylon fiber. The false claims lawsuit was one of the most hotly contested False Claims Act qui tam cases in American history and took 14 years to reach a conclusion with all defendants eventually paying to settle allegations of False Claims Act violation.
In June 2005, the Department of Justice (DOJ) intervened in the false claims act lawsuit. Two weavers, Barrday and Hexcel, settled with the DOJ for $1 million and $15 million respectively. In related qui tam actions, the government has collected tens of millions as a direct result of Dr. Westrick’s whistleblower disclosures. Second Chance admitted liability in its bankruptcy proceeding and paid the United States millions of dollars in damages. Dr. Westrick also prevailed in a related qui tam action filed under the State of California’s False Claims Act.
On March 15, 2018, the DOJ announced a settlement in which the Japanese manufacturer of Zylon, Toyobo Co., Ltd., agreed to pay the United States $66 million to resolve the allegations of False Claims Act violations against it. The final victory in this case came on July 16, 2018 when a settlement was reached with former Second Chance president and CEO Richard C. Davis, who agreed to pay the government $125,000 to settle claims related to the False Claims Act suit filed against Second Chance.
Recently, Dr. Westrick was a featured speaker at the National Whistleblower Center’s Whistleblower Day Celebration on Capitol Hill. Sen. Grassley, a lead advocate for whistleblower rights and protections as Chairman of the Senate Whistleblower Protection Caucus, recounted Dr. Westrick’s incredible impact during his keynote address. Senator Grassley told the audience, “when you don’t listen to whistleblowers like Dr. Westrick, that’s when the regrets come. Because of his remarkable courage, the product was pulled from the market, and no doubt countless lives saved. But think about it this: what if his company had listened to him in the first place? Times would have turned out very differently for the two brave officers whose vests failed them.” Dr. Westrick was recently honored with the Frank Wills and Martha Mitchell Pillar Award for Whistleblowers and Unsung Heroes.
Dr. Westrick commented on his 14-year legal battle as a whistleblower “It’s been a long time. But it was worth it, and I would do it again.”
“Dr. Westrick’s case is proof that whistleblower rewards are the key for the detection of fraud,” said his qui tam attorney Stephen M. Kohn, a partner at Kohn, Kohn & Colapinto, and Chairman of the Board at the National Whistleblower Center.
BACKGROUND ON DR. WESTRICK’S FALSE CLAIMS ACT CASE:
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, 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, a Zylon vest was penetrated. Officer Tony Zeppetella died while wearing body armor made with the Zylon fabric.
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.