PHILADELPHIA (CN) — An appellate panel once revived the case, but the full Third Circuit stands in the way now of a woman’s fight to hold Amazon liable after she was blinded in an accident with a retractable dog leash.
Heather Oberdorf blames her vision loss on a defective dog collar. In January 2015, just a month after Oberdorf bought the item on Amazon, its D-ring broke apart as Oberdorf was walking her dog Sadie. Oberdorf had been wearing eyeglasses, and the recoil of the retractable leash left her permanently blind in her left eye.
The collar came from a third-party seller on Amazon called The Furry Gang, but no representative for the seller is known and its Amazon account has not been active since 2016.
Oberdorf appealed to the Third Circuit after a federal judge ruled for Amazon at summary judgment. Though the federal appeals court revived her case with a 2-1 ruling last year, that ruling has been vacated in favor of the en banc rehearing that occurred this morning in Philadelphia.
In his argument before the 14-judge panel, Oberdorf’s lawyer maintained that every aspect of Amazon’s business model meets the definition of a seller.
“They have influence over the items shown when a person searches for a product, and consumers make payments directly to Amazon and get a receipt from Amazon,” said David Wilk, an attorney with Lepley Engelman.
Wilk also detailed Amazon’s failure to vet its third-party vendors, saying such indifference should not be permitted to insulate it from liability.
U.S. Circuit Judge Jane Roth, who ruled in the majority in July, questioned the resources available to a consumer who has an issue with a third-party vendor’s product.
Wilk noted that reaching the vendor is often very difficult, leaving Amazon to be the main point of contact. Wilk added that neither Oberdorf nor Amazon has been able to locate the Furry Gang.
“Because of the way the site is set up, often Amazon is the only one available to reach when there is an issue,” said Wilk.
U.S. Circuit Chief Judge Brooks Smith, a George W. Bush appointee, pointed to a bill before the Pennsylvania Senate that would redefine a “product seller,” asking whether this should lead the circuit to hold off on a decision.
Wilk pressed that the panel need not wait for the bill as the decision is clear: Amazon is a seller.
U.S. Circuit Judge Kent Jordan seemed skeptical that Amazon cannot be held liable.
“Amazon is not an 800-pound gorilla, it’s an 8,000-pound gorilla,” said Jordan, a George W. Bush appointee. “It has more influence than anyone, why shouldn’t it be looked at for liability?”
While Amazon attorney William Murphy admitted that the company has control over the marketplace and the website, he pushed back on the idea that fact made them liable for a third-party product.
Judge Roth pointed out that the collar is still for sale on Amazon’s website.
“Are you aware that Amazon is still selling the collar that broke and blinded Mrs. Oberdorf,” asked Roth, a George H.W. Bush appointee. “And with very critical reviews of it breaking.”
Murphy, of Perkins Coie law firm, assured the panel that the Furry Gang no longer was selling the collar on Amazon.
Judge Roth pointed out that though it was not being sold by the same seller, it was still the same collar.
On rebuttal, Wilk suggested that Amazon should make more of an effort to vet the products that are for sale on their site, adding that requiring vendors to have liability insurance would be a good first step.
Wilk further noted that if not for Amazon dictating what products consumers find when searching their site, his client would never have bought the collar that rendered her partially blind.
“My client never sees this dog collar if Amazon never puts it in front of her,” said Wilk.
In an interview after arguments, Wilk expressed satisfaction with how he presented his points and looks forward to a decision.
Murphy declined to comment.
Wednesday’s hearing comes exactly one year after an Ohio appeals court threw out a lawsuit that sought to hold Amazon liable for the death of teenager who bought caffeine powder through an Amazon vendor.
The panel found that Amazon was functioning as a third party by merely listing the product on its site. The case, Stiner v. Amazon.com Inc., is set to be argued in front of the Ohio Supreme Court in April.
Wednesday’s panel was rounded out by U.S. Circuit Judges David Porter, Paul Matey, Peter Phipps and Stephanos Bibas, Donald Trump appointees. U.S. Circuit Judges Luis Felipe Restrepo, Cheryl Ann Krause and Patty Shwartz, Barack Obama appointees, also sat on the panel. U.S. Circuit Judges Michael Chagares and Thomas Hardiman, George W. Bush appointees, Thomas Ambro, a Bill Clinton appointee, and Ronald Reagan appointee Joseph Scirica sat in as well.