Background
Ethan McCarthy and Kristine Jónsson, both teenagers, died by suicide after ingesting sodium nitrite they purchased from Amazon.com. Their families sued Amazon in the Western District of Washington, alleging three theories: (1) product liability under the Washington Product Liability Act (WPLA) sounding in failure to warn; (2) common-law negligence; and (3) negligent infliction of emotional distress. The plaintiffs also brought a WPLA intentional-concealment claim premised on Amazon’s alleged removal of consumer reviews warning of the dangers of sodium nitrite. The district court dismissed all four claims at the Rule 12(b)(6) stage.
The plaintiffs appealed the dismissal of the failure-to-warn, negligence, and NIED claims. They did not appeal the dismissal of the consumer-review-removal claim, which the district court had held was barred by Section 230 of the Communications Decency Act.
The Court’s Holding
A Ninth Circuit panel of Judges W. Fletcher, Berzon, and R. Nelson reversed and remanded in a brief unpublished memorandum. The disposition is bound up tightly with a parallel Washington Supreme Court decision, Scott v. Amazon, No. 103730-9, 2026 WL 468578 (Wash. Feb. 19, 2026), that addressed substantively identical claims and resolved the key WPLA questions favorably to plaintiffs.
WPLA failure-to-warn and common-law negligence
Following the Washington Court of Appeals decision in Scott and the Washington Supreme Court’s review of that case, the Ninth Circuit confirmed that the WPLA contains no “defective product” predicate restricting a seller’s negligence liability. The statute expressly contemplates negligence-based liability for product sellers, and Washington courts have allowed WPLA claims to proceed without a threshold showing that the product itself was defective. The district court’s contrary ruling could not stand.
On the merits of duty, breach, causation, and damages, the Ninth Circuit treated each as a fact-bound question that could not be decided on the pleadings. Whether the act of suicide fell within the foreseeable range of Amazon’s alleged duty of reasonable care, whether warnings about sodium nitrite would have prevented the deaths, and whether the buyers’ use of the product as intended for self-harm broke the chain of proximate causation are all jury questions under Washington law. The panel quoted the Washington Supreme Court’s recent observation in Scott that “the act of suicide, as a matter of law, is not a superseding cause that precludes Plaintiffs’ WPLA claims.”
Negligent infliction of emotional distress
The district court had dismissed the NIED claim for lack of a predicate negligence claim. Because the panel revived the underlying negligence claim, the NIED claim was reinstated along with it.
Section 230 and the consumer-reviews theory
The plaintiffs did not appeal the district court’s Section 230 holding as to the intentional-concealment claim premised on Amazon’s removal of consumer reviews warning about sodium nitrite. The Ninth Circuit accepted that holding and did not disturb it. On remand, however, the panel directed the district court to consider the plaintiffs’ other intentional-misconduct theories — specifically, allegations that Amazon intentionally misrepresented or concealed information about the risks of sodium nitrite, separate from the review-removal theory — and to determine whether those allegations state a claim under the WPLA’s intentional-misrepresentation prong.
Key Takeaways
- Section 230 continues to bar specific claims premised on a platform’s editorial choices about third-party content (like review removal), but it does not insulate every theory of platform liability. The plaintiffs in McCarthy lost the review-removal claim on Section 230 grounds and chose not to appeal it. Their other theories — failure to warn about the product itself, negligence, and intentional misrepresentation independent of review moderation — survive.
- Washington’s product-liability framework, as clarified in Scott v. Amazon, does not require plaintiffs to plead that the underlying product is defective in order to pursue WPLA negligence claims against a seller. That is a meaningful structural advantage for plaintiffs suing online marketplaces under Washington law.
- Suicide is not a superseding cause as a matter of law when the alleged harm is connected to the absence of warnings about a known method of self-harm. Foreseeability, intervening cause, and proximate cause are all fact questions for the jury.
- The decision is unpublished and therefore non-precedential within the Ninth Circuit. Its practical force comes from its alignment with the published Washington Supreme Court ruling it follows.
Why It Matters
This is one of several recent cases working through the boundary between Section 230’s publisher immunity and tort liability for online marketplaces whose business practices — pricing, recommendation, fulfilment, sales facilitation — arguably contributed to physical harm. The McCarthy panel reinforces the now-familiar pattern: claims targeting a platform’s role in moderating user content are likely to fall under Section 230, while claims targeting the platform’s role as a commercial seller or its independent representations about a product may not. For marketplace defendants, the practical exposure is shifting away from the publisher framing and toward the seller framing.
For families, regulators, and product-safety advocates concerned about online sales of sodium nitrite and similar hazardous substances, the opinion gives a route to discovery and trial against the platform itself, not just the upstream supplier. Expect more cases like this one, particularly where the platform is alleged to have known, before the sale, that a particular product was being purchased predominantly for self-harm.
Source
The Ninth Circuit’s unpublished memorandum disposition is available here: McCarthy v. Amazon.com, Inc. — Memorandum (March 12, 2026).