Military, Safety

Helicopter Helmet Lawsuit Heads to Appeals Court

By Frank Wolfe | November 2, 2018
Send Feedback | @fwolfe18

The subject of the 2016 film, War Dogs, 32-year-old Efraim Diveroli once held a place in a shadow arms market for the Afghan government, as he ran the now defunct AEY, Inc. — a Miami Beach-based company that bought up Albanian arms stockpiles, weapons originally made in China — removed their "Made in China" labels, and resold the arms at highly inflated prices to the Afghans. Such operations came under a $298 million Pentagon contract awarded to AEY in 2007.

Convicted of conspiracy for violating the U.S. arms embargo against China, Diveroli spent four years in prison and was released in 2014.

Curiously, a law firm for Florida-based Helicopter Helmet LLC and Government Sales, Inc. named Diveroli as their representative in a mediation effort mandated by the Third Circuit Court of Appeals after U.S. District Court Judge Matthew Brann last May dismissed the companies' anti-trust lawsuit against helicopter helmet heavyweight Gentex Corp., which supplies the U.S. military and other federal and commercial customers, and Gibson & Barnes, the major Gentex distributor. HHC and Government Sales, Inc. have alleged collusion among Gentex, Gibson & Barnes and the Department of the Interior's Office of Aviation Services over contracting procedures and over the procedure OAS used to approve helmets.

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The telephonic mediation among the companies with Chief Circuit Mediator Joseph Torregrossa was scheduled for Aug. 13, but representatives for HHC and Government Sales, Inc., including Diveroli, did not participate.

Court observers said the naming of Diveroli indicates that representatives for HHC and Government Sales, Inc. were not serious about engaging in any mediation. Ron Abbott, CEO of HHC, said that Gentex has effectively locked up the U.S. government market and that he does not have much faith the courts will rule in favor of HHC and Government Sales, Inc.

Nevertheless, HHC and Government Sales May 30 appealed the case to the Third Circuit Court of Appeals, and the latter may hear the case this spring.

HHC has also engaged its congressional delegation. In July, the U.S. House of Representatives approved on a voice vote an amendment by Rep. Bill Posey to H.R. 6147, the House version of the fiscal 2019 Department of the Interior Appropriations Bill. Posey's amendment provides that no funds under the legislation may go to the procuring of aviation helmets without "full and open competition."

On July 18, in a speech on the House floor, Posey said that Abbott "is not able to sell his helmets to the Department of the Interior."

"His helmets are not inferior," Posey said. "They are used by many industries. They are used in many countries. But he is not on the approved list for federal agencies. Currently, the approved list includes only one manufacturer. My amendment will change this by providing additional options through competition. The amendment requires compliance with the federal acquisition regulation policy that ensures a full and open process in procuring aviation helmets.”

The crux of the HHC and Government Sales argument rests on their contention that Gentex colluded with the Department of Interior on helicopter helmet standards that solely benefit Gentex and that will help drive HHC and Government Sales, Inc. out of business.

But Judge Brann disagreed in his May 1 decision.

"To bring a federal antitrust claim, a plaintiff must allege 'the existence of antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flow from that which makes defendants’ acts unlawful,'" Brann wrote. "Federal antitrust law, however, “does not compel your competitor to praise your product or sponsor your work.' To the extent that plaintiffs were harmed by defendants’ apparently successful publicity campaign, the proper response is to create better publicity themselves. Antitrust law, after all, 'protect[s] competition, not competitors.'"

There are at least 13 helicopter helmet companies in the U.S., but a significant number of them, unlike Gentex, are relatively small operations.

Last month, the Department of the Interior and the U.S. Forest Service released an aviation helmet standard that lays out minimum requirements for use by DOI/USFS. DOI said that a lack of aviation helmet standards, apart from the U.S. military, is a significant problem. In addition, there is no industry-wide requirement that pilots wear helmets, and the FAA only requires helmets for crop duster pilots.  The National Transportation Safety Board also does not routinely collect helmet data in accident investigations, although some NTSB investigators are including helmet information in their accident reports.

"Government regulatory agencies (such as OSHA) have not provided any guidance and the helmet manufacturers have made no effort in establishing industry standards," DOI said in the standards document. "Aviation helmets provide multiple levels of protection and need to be evaluated for many properties including (but not limited to) crown and side impact, sound attenuation, retention, and weight."

"Although military approved helmets will remain authorized, simply adopting military specifications as our own standard was eliminated as some of those specifications include areas that are not applicable to DOI," the agency said. "Some of these areas include the Department of Defense (DOD) purchase process, design elements involving ballistic protection, and packaging/delivery. Additionally, some military helmet models were built to an American National Standards Institute (ANSI) standard (ANSI Z90.1), which is no longer supported by ANSI. As such, these obsolete standards are unusable for ISO 9001 certified or ISO 17025 accredited testing labs."

The DOI Aviation Life Support Equipment (ALSE) handbook lists four approved helicopter helmets, all made by Gentex: the HGU-56/P, SPH-5, SPH-4B and HGU-84/P.

"DOI knows that all its approved helmets are Gentex helmets," James Wegge, director of Gibson & Barnes, told R&WI. "I think they would be very happy if other helmets were tested to the standard and approved."

Helmet testing can be costly for small companies, however, and establishing quality assurance plans for helmet parts, materials and manufacturing procedures can be complex and very burdensome for small helicopter helmet firms.

Last year, the DOI Office of Aviation Services contracted with Southwest Research Institute to develop helmet performance standards and testing methodologies. Gentex wants the institute to test its HGU-56/P helmet to the new DOI standard by the end of the year.

The four Gentex helmets in the ALSE handbook's approved list "have not been tested to the new DOI standard but have been approved because they have been subjected to extensive military testing and are manufactured in an ISO-9001 certified facility," Wegge said.  "Although testing to the DOI standard isn’t necessary for approval of the HGU-56/P, Gentex is preparing to test it to that standard later this year."

"Manufacturers of other helmets can test their helmets at an ISO-certified testing laboratory, be issued a certificate of conformance, and be added to the DOI’s list of approved helmets," Wegge said. "As of today, no additional helmets have been approved."

Abbott said that HHC's helmets, such as the EVO, are good ones and believes DOI has an ax to grind with Gentex competitors.

DOI "won’t approve our helmet," he said. "It doesn’t matter how good it is.”

Abbott criticized the HGU-56/P, saying that many helicopter crews "don’t want to buy a 20-year-old helmet."

"It’s one of the worst helmets ever made," he said. "You have no peripheral vision in that helmet. It’s hard to wear a life jacket with that helmet.”

Wegge, by contrast, said that the helmet has been a clear winner in terms of helicopter crew safety.

Developed by Gentex and the U.S. Army Aeromedical Research Laboratory at Fort Rucker, Alabama, the helmet includes a number of improvements to the SPH-4B and SPH-5, Wegge said.

"The most noticeable changes to the HGU-56/P versus the SPH-4B and SPH-5, are the thicker energy-absorbing liner, the impact-distributing flat ear bells, the greater amount of the head covered by the helmet, and the new more energy-absorbing earcups," Wegge said. "Last year, the HGU-56/P improvement kit was released, moving the user’s head forward slightly to improve visibility and adding an articulating retention and nape strap for improved stability and better fit."

"The HGU-56/P is the most protective helicopter helmet in the world," according to Wegge. "Approximately 100,000 have been made. It is used by the Army, Air Force, Navy, Marine Corps, Coast Guard, DHS and over 50 other countries. It is unlikely that 'it’s one of the worst helmets ever made.'"

Michael Sagely, a senior pilot and safety manager of air operations for the Los Angeles County Fire Department, said that, while he wears an HGU-84, crew members with the department "generally wear an HGU-56."

"It's the military helmet that is pretty much the lightest and meets Mil Spec, plus it's got a blast shield, which is like a face mask, that protects the face from impact as well as cuts the wind interference while they are outside of the aircraft during hoist operations," Sagely wrote in a Nov. 2 email.

"There are many helmets available today," Sagely wrote in the email.  "They all have their pro's and con's. Most pilots seem to have [French-made] Gallets."

Raj Helweg, the industry co-chairman of the United States Helicopter Safety Team and the chief pilot of Air Methods--the largest air medical company, said that Air Methods wants to provide its teams with the "newest and safest equipment." Air Methods has been using helicopter helmets by Tennessee-based Paraclete Aviation Life Support.

“While there are only specific military standards for helicopter helmets, Air Methods focuses on providing our teams with cutting edge helmets," he wrote in an email. "We have been working with Paraclete Aviation Life Support for two years because they create great helmets and have the ability to customize the fit to each of our teammates. These are critical to the safety of our team so we review all helmets for safety, technology and comfort. We want to make sure that the helmet fits well and can also carry our equipment without interfering with the crew ability’s to operate the equipment or meet the medical needs of their patient in transport.  Paraclete Aviation Life Support uses the most advanced retention system on the market, which makes utilization of night-vision goggles more comfortable, as well as composites and shields that work well for our teams."

Wegge estimated that there are some 20,000 to 25,000 commercial helicopter helmets in regular use in the United States, plus several thousand more stored by police departments and air medical units.

"Of these helmets, I think that fewer than half have been made and tested according to a current military or DOI helicopter helmet specification," Wegge said.

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