Ninth Circuit torn on certification in Amazon liability suit over teen suicides  

SEATTLE (CN) — Whether Amazon should be held liable for the deaths of teenagers who used sodium nitrite purchased from its retail site to end their lives is a question a three-member panel of the Ninth Circuit Court of Appeals is uncertain if they should answer first or wait for the Washington Supreme Court to determine.

Attorney Gregory Miller of the Seattle-based firm Perkins Cole represented Amazon during oral argument before the court on Wednesday. He told the panel it would be improper for it to certify while a similar case is pending in the Washington state court system.

“When a Supreme Court declines review of an intermediate court decision, that increases the deference owed, and it is the functional equivalent of refusing certification from this court,” Miller said.

The issues before the Ninth Circuit largely mirror those in the Washington courts; both concern the families of teenagers who used Amazon to order commercial-grade chemicals, commonly used to cure meats, to die by suicide.

In federal court, the families Kristine Jonsson and Ethan McCarthy appealed to the Ninth Circuit after the lower court dismissed their product liability and negligence claims against Amazon. Both teenagers ordered the water-soluble, crystalline power chemical at the recommendation of a pro-suicide website.

Just eight days before Wednesday’s oral argument in the Ninth Circuit, the Washington State Court of Appeals reversed a state trial court’s decision to allow the families of four teens who died by suicide to proceed in their state law case against Amazon.

The state appeals court found that Washington law doesn’t hold sellers to “protect against intentional misuse of a product.”

Attorney Phil Talmadge of the Seattle firm Talmadge/Fitzpatrick, representing the families in both the federal and state cases, told the Ninth Circuit he was in the process of filing the appeal of the Washington appeals court decision to the state Supreme Court.

The Ninth Circuit panel had questions about where that leaves the federal case, which is largely predicated on the same issues of product liability.

“What do we do with the Court of Appeals decision?” U.S. Circuit Judge William A. Fletcher, a Bill Clinton appointee, asked Talmadge. “It seems to me to make sense for us to at least wait and see if the Washington Supreme Court takes it.”

Talmadge noted the factual differences between the cases and suggested the panel certify predicting what the Supreme Court may rule if that court declines to review the state case.

“This is a high-profile situation,” said U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee. “If they don’t take it, don’t we get a message from that?”

Amazon thought so.

“It would be completely improper for this court to go ahead and certify right now when there’s going to be a process in the normal course of litigation,” Miller said. “This case is bound up in the consideration that the Washington Supreme Court would have”

Talmadge argued that whether the case advances in the state court, the Ninth Circuit should consider its merits and the company’s liability in the deaths of Jonsson and McCarthy.

U.S. Circuit Judge Ryan D. Nelson, a Donald Trump appointee, asked the attorney whether a product warning would have sufficed or if the responsibility exceeded warnings.

Talmadge pointed to the information Amazon had about the dangerous uses of sodium nitrite, including a 2022 investigation by The New York Times and the banning of the product in other countries.

“They didn’t restrict the sale of sodium nitrite to adults, they didn’t restrict the sale of sodium nitrite on their website to commercial users,” Talmadge said. “They continued to sell this thing.”

Amazon argued that the lower federal court and Washington Court of Appeals interpreted Washington’s product liability laws correctly.

“Manufacturers and sellers do not have a duty to account for obviously dangerous misuse of their products,” Miller said.

Both Fletcher and Berzon pressed Miller about Amazon’s product recommendation feature that suggested both a suicide instruction book and a medication that prevents vomiting to users who browsed the listing page for the chemical.

“An algorithm doesn’t come out of the sky; Amazon creates it,” Berzon said. “So it is intentional.”

Miller conceded that point but said the state appeals court recognized that Washington law doesn’t impose liability for those particular features.

On rebuttal, Talmadge urged the court to certify, noting there are 10 other cases involving 23 other families, and arguing that certification would send a message to the Washington Supreme Court.

“It would be useful for the court to understand that this is an issue that has consequence,” Talmadge said.

If you are having thoughts of suicide, call or text 988, or call the National Suicide Prevention Lifeline at 1-800-273-8255 (TALK). Visit SpeakingOfSuicide.com/resources for a list of additional resources.