Amazon Could Be Liable for Selling Product Used to Commit Suicide, Coupled with Promotion of a “Suicide Instruction Book”

From Thursday’s Scott v. Amazon.com, Inc., decided by the Washington Supreme Court (opinion by Justice Helen Whitener); the lawsuit was brought by the families of four people who committed suicide, three adults (ages 18, 19, and 27) and one minor (age 17):

Amazon sells … “Loudwolf Sodium Nitrite” and “HiMedia GRM417-500G Sodium Nitrite.” Each of the four decedents ingested the sodium nitrite they purchased from the Amazon website. According to Plaintiffs, sodium nitrite is used in laboratories for research and medical purposes, and it is also used in meat preservation. When used as a meat preservative, sodium nitrite is one of many ingredients. Curing salts typically call for sodium nitrite of 6.0 percent purity.

HiMedia Sodium Nitrite is 98.0 percent pure and Loudwolf Sodium Nitrite is 99.6 percent pure. Once ingested, sodium nitrite takes just minutes to produce enough methemoglobin to impair oxygen transport in the blood and cause hypoxia. Plaintiffs alleged that there is no legitimate household use for high purity sodium nitrite….

Plaintiffs alleged that Amazon promoted the sale of sodium nitrite on its website alongside other products that would assist in carrying out suicide. They contend that the Amazon website included recommended products, such as Tagamet to consumers who viewed sodium nitrite products. According to the Plaintiffs, Tagamet is an acid reduction medicine that suicide forums recommend purchasing to prevent life-saving vomiting that occurs when sodium nitrite is ingested.

Other products Plaintiffs identified being recommended on Amazon’s website to customers who viewed sodium nitrite products include a small scale and a book titled The Peaceful Pill Handbook. Plaintiffs alleged that The Peaceful Pill Handbook is a suicide instruction book that devotes a chapter to lethal inorganic salts, which contains instructions on how to use sodium nitrite to die by suicide. The book states that sodium nitrite is readily available online and provides a hyperlink to the sodium nitrite products on the Amazon webpage.

Plaintiffs alleged that Amazon routinely sent reminder e-mails, with advertisements for these products, to customers who viewed sodium nitrite products on the webpage. In addition, Plaintiffs contend that one-star customer reviews from grieving family members about how the sodium nitrite product was being used for suicide were deleted by Amazon.

Amazon has no age verification method for account users who purchase sodium nitrite. Plaintiffs contend that for years Amazon has been aware of the link and risks between sodium nitrite and suicide, and, even after becoming aware [as early as 2018] of the deaths it has caused, continues to sell consumers sodium nitrite, without any restrictions….

In other countries, such as the United Kingdom, Amazon is legally required to control sales of sodium nitrite because of its categorization as a “reportable substance” and its prevalence in aiding suicide. On March 17, 2021, the U.S. Food and Drug Administration sent a letter informing Loudwolf and Amazon that the product purchased through Amazon was mislabeled and had been used for suicide purposes. Loudwolf immediately removed sodium nitrite from its Amazon storefront and from its own website. Through at least October 2022, Amazon continued to sell sodium nitrite through other brands. As for HiMedia Sodium Nitrite, Plaintiffs alleged that Amazon continues to sell it.

According to Plaintiffs, the labels on HiMedia Sodium Nitrite and Loudwolf Sodium Nitrite fail to adequately inform consumers of its lethal nature or how to reverse the products’ effects if ingested. Here, they state that Amazon cropped the product image of HiMedia Sodium Nitrite so no warnings or descriptions of the product are visible to customers viewing the product online. The HiMedia bottle does contain warnings and symbols; however, it has no description of how deadly the product is or how to reverse its effects. The only warning language contained on the Loudwolf Sodium Nitrite product label states, “HAZARD Oxidizer. Irritant.” The product contains no warnings to consumers about how deadly the product is or how to reverse its effects.

Mikael Scott, after ingesting sodium nitrite, texted his mother, “‘Vomiting is usually [ ] good as your bodies [sic] defense mechanism, especially if you feel better afterwards.'” After Tyler Muhleman ingested sodium nitrite, emergency medical technicians arrived and tried to save him; however, when they checked the HiMedia bottle, they found no instructions for an antidote to reverse the product’s effects. Demetrios Viglis, after ingesting sodium nitrite, texted one of his friends saying, “‘Don’t worry. I’ll call you in the morning, my body is rejecting the poison.'” Ava Passannanti called the police after ingesting sodium nitrite, begging for immediate help, and cried out, “‘Someone please help me! I don’t know why I did this to myself! Please! Help me! Help me!'”

The court’s majority opinion allowed plaintiffs’ case to go forward on a negligence / product liability theory, rejecting the claim that the suicide broke the chain of legal causation: “[T]he decedents’ suicide risk was known to Amazon prior to the negligent act complained of and it was ‘a’ condition the known existence of which creates a duty to safeguard the four decedents from the foreseeable consequence of its existence.”

Justice Steven González’s concurrence added:

[T]he allegations, taken as true, do more than create a triable issue on whether Amazon was negligent in allowing sodium nitrite to be sold to vulnerable people after being warned the product was being misused for suicide. The plaintiffs also allege Amazon deliberately took actions that made it more likely vulnerable people would use the product to harm themselves. Most specifically, the plaintiffs allege:

Amazon also assists in causing individuals to die by suicide through the way it markets Sodium Nitrite. Its recommendation feature for Sodium Nitrite (i.e., “Customers who viewed this item also viewed” and “Frequently bought together”) offers Tagamet, which is an acid reduction medicine that suicide forums recommend to prevent lifesaving vomiting after ingesting a deadly dose of Sodium Nitrite. Also among Amazon’s recommendations for viewers of Sodium Nitrite are small scales and the “Amazon Edition” of Dr. Philip Nitschke’s suicide instruction book, “Peaceful Pill Handbook.”

In essence, the plaintiffs allege Amazon’s recommendation algorithm marketed the tools to commit suicide to their vulnerable loved ones….

It is, at the least, negligent to market a suicide kit to vulnerable people. Doing so could give rise to liability under RCW 7.72.040(1)(a) and even outside the Washington products liability act. It is, at the least, negligent to remove or conceal information that would alert other customers to this misuse. Doing so could give rise to liability under RCW 7.72.040(1)(c)….

Justice Salvador Mungia’s concurrence, joined by Justices Raquel Montoya-Lewis and (largely) Sheryl Gordon McCloud, also added (among many other observations) the following about duty and breach of duty (and not just about the proximate cause question discussed by the majority):

1. As a product seller, [Amazon has a duty] to not facilitate foreseeable death by suicide. Taking the allegations as true, Amazon violated that duty by (1) selling a product that has no household use, which it knew was being used by consumers to end their lives, (2) linking sodium nitrite to other products used for death by suicide, (3) providing immediate delivery of the product directly to the consumers’ homes, and (4) omitting warning information.

2. As a product seller, [Amazon has a duty] to take reasonable steps to prevent the misuse of industrial grade sodium nitrite by the general public that it knew was being used by consumers to end their lives.

Amazon allegedly knew that a number of its customers were buying sodium nitrite from its website to end their lives. Amazon’s algorithms recommended other products to purchasers of sodium nitrite to assist in suicide, including handbooks on how to use sodium nitrite for suicide, scales to weigh sodium nitrite, and antiemetics to prevent the user from vomiting after consuming sodium nitrite. Amazon’s search engine also suggested the prompt “sodium nitrite suicide” when customers typed in “sodium nitrite.” In addition, Amazon was aware of the growing national and international concern that sodium nitrite was being purchased, particularly by youths, to die by suicide. Yet, Amazon continued to promote the sale of sodium nitrite on its website and delivered it directly to individuals who used it to end their lives.

The plaintiffs have alleged sufficient facts by which it is possible for them to prevail under this negligence theory….

Amazon [also] owed a duty [under negligent entrustment principles] to avoid providing products to people it knew, or should have known, were unable to safely use them because of their vulnerabilities…. Here, the plaintiffs have alleged that Amazon had reason to know that the purchasers were unable to safely use sodium nitrite because of their vulnerabilities.

As noted above, people who are contemplating ending their lives, by definition, are vulnerable. They are vulnerable because they are experiencing more pain than they believe they can cope with. They are vulnerable because they do not see any other viable option than to end their lives. Amazon had reason to know that the purchasers were likely to use the product in a dangerous manner because of their vulnerabilities….

Suppliers [also] have a duty to use reasonable care to warn purchasers about the known dangers of the products they are selling…. [T]he plaintiffs allege that Amazon could not reasonably believe that the purchasers of the industrial-grade sodium nitrite would fully understand how quickly it would cause death, the irreversible nature of the poison, and the pain felt after ingesting sodium nitrite…. [And] the plaintiffs allege that the warning labels on the sodium nitrite and on Amazon’s website were insufficient to address the dangerousness of the chemical….

I’d love to hear what others think about this; I’m particularly interested what implication this might have for other dangerous products, and for other dangerous books. Is this logic likely to pressure sellers to restrict access even to products that do have non-suicide uses, and to pressure them to try to psychologically profile customers to see if they fall into supposedly “vulnerable” categories? Or is it likely to remain limited to situations where a product allegedly has no “legitimate household use”?

Corrie Johnson Yackulic (Corrie Yackulic Law Firm PLLC) and Philip Albert Talmadge and Gary Manca (Talmadge/Fitzpatrick) represent plaintiffs.