District Court Dismisses Claims Brought Against Amazon as a Seller of Poison

This cases raises interesting questions about corporate responsibility, given last week’s musings about what we owe to each other.  What duties does a seller owe to the public when a product it sells has become a popular option for teenagers contemplating suicide?

Two teenagers committed suicide by ingesting sodium nitrate that they bought from Loudwolf, Inc. (Loudwolf) as a third-party seller on Amazon.com.  Plaintiffs, the parents of the teens, alleged that Amazon had been aware that teens were using sodium nitrate to commit suicide since 2018, but it only stopped allowing the sale of the product on its website in December 2022.  Plaintiffs sued Amazon and Loudwolf, alleging causes of action sounding in negligence and strict liability, but they later agreed to dismiss Loudwolf from the case.  In McCarthy v. Amazon.com, the U.S. District Court for the Western District of Washington granted Amazon’s motion to dismiss.

In order for Amazon to be strictly liable it must count as a “seller.”  Amazon disputes that it is a seller, and its status is on that count is interesting and tricky, as we learned from Tanya Monestier’s scholarship, but for the purposes of its motion to dismiss, Amazon concedes that plaintiffs have alleged that it is a seller.  Under the relevant Washington Product Liability Act (WPLA), a seller can only be liable if it (1) was negligent, (2) breaches an express warranty, or (3) intentionally misrepresents facts or intentionally conceals information.

Given sodium nitrate’s obvious dangerousness and its adequate warning labels, the court rejected plaintiffs’ arguments that Amazon was negligent.  Moreover, Amazon’s alleged failure to provide better notice of the dangers of sodium nitrate were not the proximate cause of the two teens’ suicides.  They used the product precisely because they knew the risks associated with it.

Plaintiffs’ argument that Amazon engaged in fraudulent concealment sends the court in a highly interesting direction.  Their claims is that Amazon is liable because it concealed or deleted negative reviews that warned of the products use for suicide.  Amazon did so because it has a general policy of removing reviews that mention suicide.  As the court explains, plaintiffs’ intentional concealment claim is barred by the ever-unpopular-and-yet still-standing § 230(c)(1) of the Communications Decency Act.

The court found that both plaintiffs’ common-law negligence and their negligent infliction of emotional distress claims were precluded by the WPLA.  Moreover, as the goods were not defective, plaintiffs cannot make out a negligence claim.  And given futility, the court denied leave to amend (which plaintiffs did not even seek).