On the heels of the Washington Supreme Court’s decision to allow lawsuits against Amazon for selling products used by customers to commit suicide, a federal appeals court has revived claims over two teens who ended their lives using sodium nitrite bought from the retailer.
The case, McCarthy v. Amazon, was filed originally in September 2022 in California state court by the parents of the deceased teens based on claims of product liability, negligence and negligent infliction of emotional distress, and it was later transferred to a Washington federal court, which dismissed the cases.
The U.S. Court of Appeals for the Ninth Circuit last week reinstated the cases. The product at issue – sodium nitrite – has become the focus of a number of product liability suits because of its potential use for committing suicide.
At low levels, sodium nitrite can be used as a food preservative, but when consumed at highly concentrated levels it can be lethal.
According to the McCarthy plaintiffs, Amazon was aware as early as 2018 that teens were buying sodium nitrite from its website for the purpose of taking their own lives. Other plaintiffs have alleged that Amazon knew this from customer reviews on Amazon.com posted by parents of suicide victims, a letter sent to Amazon by the U.S. Food and Drug Administration and by requirements in other countries that Amazon control the sale of sodium nitrite to prevent its use in suicides.
The district court dismissed the McCarthy complaints because the plaintiffs had not alleged that the sodium nitrite sold by Amazon was defective, the use of the products in the teens’ suicide broke the chain of causation and, additionally, there could be no claim for negligent infliction of emotional distress where there was no predicate negligence claim.
But that was before the Washington Supreme Court decided in February that suicide is not a superseding cause in product liability claims under the Washington Product Liability Act.
That case, Scott v. Amazon.com, marked the Washington court’s abandonment of a century-old precedent that a WPLA claim could not succeed when an otherwise non-defective product was used in a suicide because the voluntary act of suicide broke the causal chain between the alleged negligent act of the defendant and the harm to the plaintiff.
Instead, the Washington court ruled, juries should decide the causation issue, focusing on whether “the act of suicide was a foreseeable consequence and harm of the act of selling sodium nitrite to the decedents.”
Justice Salvador Mungia, in a concurrence, argued that retailers should have three distinct duties when selling products with no household use that are lethal when ingested and where the retailer is allegedly aware of the product’s misuse in suicide by “vulnerable people”: “to not facilitate the use of that product to end one’s life,” “to take reasonable steps to prevent the misuse of the product by vulnerable people contemplating death by suicide” and “to warn purchasers of the immediate, painful, and likely irreversible consequences of the foreseeable misuse of the product.”
Following the McCarthy ruling, a unanimous Ninth Circuit panel, in an opinion written by Judge William Fletcher, found that the District Court’s dismissal of the McCarthy complaint as a matter of law was in error and that the plaintiffs had alleged sufficient facts to survive a motion to dismiss.
The court looked to the recent Washington Court of Appeals and Supreme Court decisions in the Scott case to conclude that the WPLA does not turn on whether the product at issue is defective.
The plaintiffs had also adequately alleged that Amazon breached a duty to “safeguard the decedents from the foreseeable consequences of the risk that they might purchase sodium nitrite” to commit suicide, according to the court, arguing that factual questions such as whether warnings about the painful effects of sodium nitrite poisoning might have dissuaded the teens from using the product in their suicides are matters for the jury to decide.
Having reversed the dismissal of the negligence claims, the court resuscitated the plaintiffs’ negligent infliction of emotional distress claims and also ruled the district court, on remand, should consider the plaintiffs’ claims that Amazon intentionally misrepresented and concealed information about the risks of sodium nitrite.
