Court Holds Body Armor Defect Case Must Go On

(CN) - A jury must decide whether manufacturers knowingly sold defective bulletproof vests to the federal government, callously placing federal law enforcement officers' lives at risk in the process, a federal judge ruled.

Aaron Westrick filed a qui tam action against his former employer, Second Chance Body Armor Inc.; Toyobo Co. Ltd.; and Toyobo America Inc. under the False Claims Act in 2004.

The Justice Department's civil enforcement divisions intervened and filed an amended complaint on Sept. 19, 2005, adding four Second Chance executives as individual defendants.

The General Services Administration, a federal agency that negotiates contracts for commercial off-the-shelf items for federal agencies' use, awarded Second Chance a contract in 1995, through the Multiple Award Schedule contracting program.

The agency modified the Second Chance contract on Oct. 23, 1998, to add certain new body armor models, one of which contained the synthetic fiber "Zylon."

Toyobo, a Japanese textile company founded in 1882, allegedly contracted in the 1990s, to supply Second Chance with Zylon for vests, which were then sold to the federal government.

The Justice Department says the Zylon vests degraded without warning, making them unusable, and did not maintain the same level of bullet-resisting efficacy during the five-year warranty period.

Plus, Second Chance and Toyobo knew that the vests would degrade, and intentionally made false advertisements suggesting that there was no degradation concern, the feds say.

The amended complaint alleges fraud, conspiracy, and unjust enrichment against all defendants, and breach of contract against only Second Chance. All parties moved for partial summary judgment.

On Friday, Chief U.S. District Judge Richard Roberts granted the defendants summary judgment on claims related to vests sold under the initial government contract.

"Nothing in the language of the warranty explicitly guarantees that the vests will function perfectly for the five-year period; indeed the warranty presupposes that some of the vests may not survive the five-year period," Roberts wrote. "It may very well be a poor business decision to put a product into the market with a warranty that the manufacturer knows the product cannot satisfy, but poor business decisions do not necessarily create an express false certification claim under the [False Claims Act] FCA.

"The government conflates two distinct ideas: defectiveness and durability," the ruling continues. "A product is not defective simply because it does not last as long as the parties expect it to, unless the parties have explicitly contracted for a durability requirement - a requirement that cannot be found in the standard commercial warranty here."

But the judge denied summary judgment to all parties as to the claims for vests sold to the government after the original contract was modified in 2002 - an agreement under which Second Chance guaranteed its vests to perform at the certified V-50 level within "normal statistical variation," plus or minus 6 percent.

"The 6 percent guarantee is a contract term that might impose a durability requirement, and a jury must determine that," Roberts wrote.

The judge also denied all parties summary judgment on claims for vests reimbursed through the Bullet Proof Vest Grant Partnership Act.

The parties have yet to return a request for comment.

Armor Holdings Inc., a security products manufacturer that acquired Second Chance in 2005, was acquired by the international firm BAE Systems in 2007 for about $4.5 billion.

In 2011, three bankrupt manufacturers paid $1 million for selling the government Zylon vests they knew were lethally defective.

Judge Roberts refused in 2013, to let the government stay discovery in its similar suit against Honeywell International pending the outcomes of related cases.

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