Zylon body armor fails to protect and serve police, lawsuits claim.

Tony Zeppetella, a police officer in Oceanside, California, trusted that his bulletproof vest would protect him on the job. He had spent $313 of his own money to upgrade his standard-issue vest to an Ultima vest made with Zylon, a fiber stronger but lighter weight than Kevlar, a material more often used in body armor.

His trust was misplaced. On June 13, 2003, he was shot during a routine traffic stop. The first bullet--one the vest was designed to resist--pierced his vest and severed his common carotid artery and jugular vein. Unable to defend himself because of the injury, he sought cover but was shot 12 more times and died. The suspect fled the scene in Zeppetella's patrol car but was later apprehended.

Later that month, another officer, Edward Limbacher of Forest Hills, Pennsylvania, was shot during a drug bust and seriously injured when a .40-caliber bullet pierced his Ultima vest.

These incidents raised urgent questions in police agencies across the country about the reliability of Zylon-based body armor. They also prompted a Justice Department investigation and a series of lawsuits by police organizations, state attorneys general, and the families of the two officers.

Zylon is a synthetic fiber made by Toyobo Co. in Osaka, Japan. The company claims it is "the strongest man-made fiber in the world"; "has high tensile strength, thermal stability, and flame resistance as compared to organic fiber"; and is twice as strong as Kevlar and lighter than other conventional bulletproof materials. The fiber is used in over 50 products, including sporting goods such as tennis rackets and golf clubs, high-tension rope, racing suits and helmets, and aerospace equipment. Body armor manufacturers buy Zylon as thread and then contract with weavers to make fabric based on the design and specifications of their vests.

Several U.S. body armor manufacturers use Zylon. The fiber is the sole ballistic material in the Ultima, Ultima II, and Ultimax vests made by Second Chance BodyArmor of Central Lake, Michigan. Armor Holdings, Inc., of Jacksonville, Florida, owns several brands of body armor, including American Body Armor, which makes the Zylon-based Xtreme ZX model vests.

Proponents say the lightweight, flexible material yields a more comfortable vest that officers are more likely to wear regularly. Critics claim Zylon degrades too quickly and loses its ballistic effectiveness well before manufacturer warranties expire, meaning officers are wearingvests that may not protect them from gunfire.

Attorney Greg Emerson of Los Angeles, who represents the Zeppetella family, said Second Chance knew its vests were unreliable but did nothing to solve the problem. "They allowed Tony to purchase a vest that they knew would not save his life," Emerson said. "Zylon is not suitable for body armor."

The issue caught the attention of the Justice Department a few months after the June 2003 shootings. In November of that year, then-Attorney General John Ashcroft announced a Body Armor Safety Initiative to examine the reliability of body armor used by law enforcement and to review testing and certification standards for bulletproof vests.

The National Institute of Justice, the research arm of the Justice Department, performed several series of tests, including one in which the vests were exposed to high humidity to determine how much the Zylon material degrades and how such breakdown affects the vests' ballistic performance. The agency also examined rear panels taken from the vest worn by Limbacher; the front panels, which were penetrated, were retained by the local police for use in the criminal investigation of the shooting.

The institute issued a status report last December. It found that the tensile strength of Zylon fibers taken from Limbacher's six-month-old vest was up to 30 percent lower than that of fibers in new vests of the same model. Researchers were able to replicate this level of degradation by "conditioning" new vests in a temperature-humidity chamber for five months. They then fired six shots each at 32 vest panels--16 new and 16 conditioned. None of the 192 shots penetrated the panels, but the institute called the results inconclusive.

"Research conducted thus far has supported the fact that ballistic-resistant materials, including Zylon, can degrade. Degradation may reduce the ballistic-resistance safety margin that armor manufacturers build into their armor designs," the institute said in its report. "It is imperative that manufacturers understand the vulnerabilities of materials used in their armor designs, take steps to protect the materials against these vulnerabilities, and account for any sources of performance loss during the armor design process."

The institute is performing additional tests; results are expected this spring. Researchers also plan to unveil new tests to help vest makers accurately predict the service life of their products.

Turning to the courts

The Zeppetella and Limbacher shootings have prompted several lawsuits across the country.

Zeppetella's wife, Jamie, filed a wrongful death suit against Second Chance in November 2003. The suit also makes products liability and negligence claims. (Zeppetella v. Second Chance Body Armor, Inc., No. GIN 034151 (Cal., San Diego Super. Ct. filed Nov. 25, 2003).)

Emerson said Jamie Zeppetella brought the lawsuit because Second Chance continued to sell the vests after her husband's shooting and because other police departments were still using the Ultima vest. "She wants officers to be better informed of the equipment they wear and depend upon to save their lives," he said.

The National Association of Police Organizations (NAPO) filed a class action in Michigan state court against Second Chance and Toyobo last March. Other plaintiffs in the suit include individual police officers in Florida and Michigan; the Fort Myers, Florida, police department; the Lee County, Florida, sheriff's office; and the Dermott, Arkansas, police department. The suit seeks reimbursement of the costs of the Zylon-based vests for all officers and agencies that bought them. (Nat'l Ass'n of Police Orgs. v. Second Chance Body Armor, Inc., No. 04-8018-NP (Mich., Antrim County Cir. Ct. filed Mar. 3, 2004).)

In April 2004, NAPO filed a separate class action in Florida state court against Armor Holdings and Toyobo. That case was dismissed after Armor Holdings settled a similar suit in November with the Southern States Police Benevolent Association, agreeing to replace its Zylon-based vests. (S. States Police Benevolent Ass'n v. Armor Holdings, Inc., No. 2004-2942CA (Fla., Duval County Cir. Ct. settled Nov. 5, 2004).) All owners of its American BodyArmor Xtreme ZX vests (levels II and IIIA) can exchange them for a new ZX model or any other same-level vest made by one of Armor Holdings' brands, including those not containing Zylon. The company still sells ZX vests but shortened the warranty period from 60 months to 30 months.

Limbacher is seeking class action status in a lawsuit filed in Pennsylvania. Other class actions have been filed in California, Louisiana, Michigan, New Jersey, and Oklahoma. The attorneys general of several states--including Arizona, Arkansas, Minnesota, and Texas--have also sued Second Chance for violating consumer protection laws by failing to disclose flaws in its vests and uphold its warranties. Toyobo is also a defendant in some of the suits.

"There is an unacceptable risk for thousands of Texas peace officers who might be wearing Zylon vests," said Texas Attorney General Greg Abbott in a press release. "Second Chance's claims that its vests offered lightweight, superior protection are not supported by tests showing that Zylon may degrade quickly and put officers' lives in jeopardy."

Key to these lawsuits are claims that Second Chance knew in 2001 or earlier that Zylon degrades. According to the Arizona attorney general's complaint, "Based on tests conducted by Toyobo and provided to Second Chance during December 1998 through January 2003, Second Chance knew that Zylon rapidly and permanently loses strength when exposed to such common conditions as high humidity and heat, fluorescent light, and sunlight." (State v. Second Chance Body Armor, Inc., No. CV2004-000736 (Ariz., Maricopa County Super. Ct. amended complaint riled Aug. 13, 2004).)

The Arizona complaint also cites a July 2002 letter from Second Chance President Richard Davis to the company's executive board, saying, "After five years many Zylon vests will have lost 20 percent of their [ballistic

protection]." In the letter, Davis notes that one course of action, though unfavorable, was for the company to "continue operating as though nothing is wrong until one of our customers is killed or wounded, or Germany, Japan, Dupont, or some other entity exposes the Zylon problem."

Aaron Westrick, a former director of research for Second Chance, recommended in December 2001 that the company notify its customers that deterioration could cause vest failure. In a memorandum, he warned his supervisors that "lives and our credibility are at stake."

In a September 2004 deposition for eight class actions against the company, Westrick said, "I strongly believed that this was a threat and that some police officer could be killed." He also testified about attempts by Second Chance executives to cover up the problems with Zylon, including orders from management to destroy critical documentation. He provided direct evidence that company officials knew their products could fail.

"Second Chance fired Dr. Westrick in the middle of his deposition," said his lawyer, Stephen Kohn, chairman of the National Whistleblower Center in Washington, D.C. "They were so upset with his testimony that they did not even wait until the deposition was completed before they terminated his employment. Firing a key witness in the middle of testimony had a chilling effect on other witnesses with knowledge of the corporate misconduct at issue in these cases."

Too little, too late

In response to investigations and rising complaints, Second Chance removed its Zylon-based models from the market in September 2003. It offered officers a discount on the purchase of a new Second Chance vest or a free upgrade kit--or "performance pack"--consisting of pads to be inserted in the original vest. The National Institute of Justice has tested the upgrade kits and found that although they improve the vests' performance, they do not raise it to the level of new vests. Plaintiffs say the company's actions do not constitute full compliance with its warranties.

Second Chance claims that it had no knowledge of Zylon's degradation problems until after the Zeppetella and Limbacher shootings. In a press release, the company said Toyobo representatives met with Second Chance officials in October 2003 and "made new disclosures indicating more severe Zylon degradation problems over time and use than previously disclosed."

Second Chance has cross-sued Toyobo, arguing that the Zylon maker shares responsibility for vest failures. Toyobo denies liability, saying that as early as July 2001 it provided its customers with test data showing that exposure to high temperatures and humidity reduces Zylon's strength.

"While those tests were never intended or designed to assess the actual ballistic performance of any individual manufacturer's final product, Toyobo made a practice of providing the results of its Zylon testing to the entire body armor industry," the company said in a statement.

In October 2004, Second Chance filed for bankruptcy. This stalled, at least temporarily, much of the litigation against it. However, the bankruptcy judge has ruled that the company can continue business and must honor its warranties and maintain products liability insurance coverage. Emerson said the stay in his suit has been lifted, and it is proceeding to trial in June.

The vests' alleged defects have angered many people because the products affect the safety of police officers, who put their lives on the line to protect citizens. NAPO attorney Michael Crow of New Orleans said, "It is a travesty to have men and women, who risk their lives every day in an effort to make our lives safer, to have been misled and given a false sense of security by depending on a vest that is ineffective."