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A Ninth Circuit panel on Wednesday considered whether to revive claims that Amazon.com negligently sold industrial sodium nitrite, a chemical allegedly used in suicides by two teenagers. The case hinges on whether Washington law imposes a duty on Amazon to prevent the sale or recommendation of products that could foreseeably be misused.

The panel signaled interest in seeking guidance from the Washington Supreme Court, potentially through a similar state-level case, Scott v. Amazon.com Inc., to clarify the state's duty-to-warn statute before deciding the federal case.

Key Arguments

The families of Kristine Jónsson, 16, and Ethan McCarthy, 17, argue that Amazon facilitated their suicides by selling the highly potent chemical, which lacks common household uses, and by using an algorithm to recommend complementary products.

Philip A. Talmadge, representing the families, asserted that Amazon knowingly sold a dangerous product and ignored warnings from Congress, media investigations, and foreign bans. "They continued to sell this," Talmadge said, emphasizing that Amazon had knowledge of the misuse dating back to 2018.

Amazon’s attorney, Gregory F. Miller of Perkins Coie LLP, countered that sellers are not liable for products misused in ways they were not intended, arguing there was no defect in the product itself. He also noted sodium nitrite is legally sold for legitimate purposes, such as curing salmon.

Judges Question Amazon’s Practices

U.S. Circuit Judge William A. Fletcher raised concerns about Amazon’s role, noting the platform’s recommendation system promoted items often used in suicides alongside the chemical. "Amazon not only had the product, but it had all the things [to suggest] 'Here's how you commit suicide,'" Fletcher remarked.

Judge Marsha Berzon echoed skepticism, stating, "An algorithm doesn’t come out of the sky. Amazon creates it, so it’s intentional."

While Miller argued that Amazon has since altered its algorithm to prevent such recommendations, Judge Ryan D. Nelson questioned whether the company had taken sufficient responsibility to correct its systems proactively.

Calls for State Law Clarification

The panel explored whether to certify questions to the Washington Supreme Court, given overlapping legal issues with Scott v. Amazon.com Inc., a similar state case. Although Talmadge acknowledged factual distinctions between the cases, he agreed that they posed similar legal questions.

Background of the Case

The lawsuit alleges Amazon sold the chemical through its third-party marketplace, where Jónsson and McCarthy purchased it in 2021. Their families initially sued both Amazon and vendor Loudwolf in California but later dropped claims against Loudwolf after the vendor ceased sales upon regulatory notification.