Update: On October 1, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the argument here.

On April 29, 2020 the Supreme Court will hear oral argument in the case of Dennis Stiner v. Amazon.com, Inc., 2019-0488. At issue in the case is whether Amazon is a “supplier” under Ohio’s Products Liability Act (“OPLA”). The case was supposed to be argued  at the Buckeye Local High School in Jefferson County, as part of the Court’s off-site program, but cannot be held there because of the coronavirus. The case will be argued remotely via videoconferencing, with the justices hearing argument from their individual chambers at the Court.  

Case Background

In May 2014, Logan Stiner, a high school senior, died from cardiac arrythmia caused by acute caffeine toxicity after ingesting a fatal amount of pure caffeine powder. Stiner got the caffeine powder from his friend, K.K., who had purchased the powder from a third-party seller off Amazon’s website. K.K. originally went to Amazon’s website looking for a pre-workout supplement. K.K. clicked on one pre-workout product which prompted the display of related products under a heading labeled other “products that you may like.” Hard Rhino pure caffeine powder was listed there as a suggested product.

The caffeine powder was imported by Green Wave Ingredients, Inc. a distributor of dietary supplements, from a company based in China, and provided to an Arizona company called Tenkoris LLC (“Tenkoris”). Tenkoris packaged the powder under the trade name “The Bulk Source” and sold it on Amazon under the brand name “Hard Rhino”. K.K. purchased the Hard Rhino pure caffeine powder through Amazon’s website and paid for it in part using an Amazon gift card. Tenkoris fulfilled the order and shipped the product directly to K.K. who then shared some with Stiner.

Following his son’s death, Stiner’s father, as administrator of Stiner’s estate, sued Amazon.com, Inc., Amazon Fulfillment Services, Inc., Amazon Web Services, Inc., Amazon Services LLC (Collectively, “Amazon”) and others later dismissed, alleging violations of Ohio’s Food & Drug Safety Act and Ohio’s Product Liability Act. Both Stiner and Amazon filed motions for summary judgment. Lorain County Court of Common Pleas Judge John L. Miraldi granted Amazon’s motion, finding that Amazon did not fall within the statutory definition of a supplier under Ohio’s products liability laws and therefore cannot be liable to Stiner.

The Appeal

In a decision authored by Judge Julie Schafer, and joined by judges Tom Teodosio and Lynne Callahan, the Ninth District Court of Appeals affirmed the trial court’s judgment. The Ninth District agreed with the trial court that Stiner had not presented any evidence suggesting that Amazon was a supplier under Ohio products liability laws. The court explained that Tenkoris, not Amazon, was the true supplier because it was the entity that obtained the materials to make the product, set its price, housed the product, and shipped it directly to the customer. Thus, the court found that Amazon merely provided a platform for Tenkoris to offer to sell its product.

The Ninth District also found that Amazon was not in a reasonable position to safeguard against allowing the dangerous caffeine powder to enter the stream of commerce. Finally, The Ninth District also affirmed the trial court’s order dismissing Stiner’s claims under Ohio’s Food and Drug Safety Act because Amazon did not sell or offer to sell the caffeine powder.

Votes to Accept the Case

Yes: Justices French, Fischer, DeWine, and Donnelly

No: Chief Justice O’Connor, Justices Kennedy and Stewart

Stiner’s First Proposition of Law Accepted for Review

Where an internet provider such as Amazon acts as more than a neutral platform for third-party sales and actively promotes the sale of a deadly product, courts must apply public policy considerations underlying Ohio’s consumer protection laws, including incentivizing safety and shifting risk away from consumers, in determining supplier status.

Stiner’s Second Proposition of Law Accepted for Review

An internet provider such as Amazon “otherwise participates in placing a product in the stream of commerce” and is a “supplier” under O.R. C. 2307.51(A)(15) when it agrees to promote a deadly consumable product, introduces and recommends that product to a consumer, and otherwise uses its influence to lead that consumer to believe the product is safe.

Key Statutes and Precedent

47 U.S.C. 230 (Federal Communications Decency Act) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”)

R.C. 2307.71 (Defines supplier as “a person that, in the course of a business conducted for the purpose, sells, distributes, leases, prepares, blends, packages, labels, or otherwise participates in the placing of a product in the stream of commerce.”)

R.C. 3715.52 (Prohibits the “manufacture, sale, or delivery, holding or offering for sale of any food, drug, device, or cosmetic that is adulterated or misbranded.”)

Inman v. Technicolor USA, Inc., U.S. Dist. Case No.11-666, 2011 WL5829 24 (W.D. Pa., 2011) (Product liability case involving faulty products sold by third party sellers on eBay and holding eBay was not a seller liable under Pennsylvania’s product liability laws.)

Anderson v. Olmsted Util. Equip., 60 Ohio St.3d 124 (1991) (Pre OPLA case imposing strict liability and finding that a company that refurbished an aerial device that later failed placed the device in the stream of commerce even though the company may not have “sold” the device.)

Welch Sand & Gravel v. O & K Trojan, 107 Ohio App.3d 218 (1^st Dist. 1995) (Held that a consignee who made a product available at an auction was a supplier under OPLA and explained that “the clear public policy behind the products liability statute is to shift the risk of product-related injury away from the product consumer.”)

Long v. Tokai Bank of California, 114 Ohio App.3d 116 (2d Dist. 1996) (Financial lessor with a security interest in a machine was not held to be a supplier because such “tangential participation” did not justify imposing strict liability.)

Fox v. Amazon, Inc., 930 F.3d 415 (6th Cir. 2019) (Declining to limit “sellers” under Tennessee product liability law to those who transfer title to products and instead looked to the degree of control over a product and held that Amazon was not the seller of a defective hoverboard.)

Stiner’s Argument

Amazon can be held liable under Ohio’s product liability laws as a “supplier” of the deadly caffeine powder because it recommended the product to K.K. and played an indispensable role in the transaction. Amazon was not a neutral platform in the sale of the caffeine powder because it promoted the powder and introduced it to the customer through its algorithm for “products you may like,” and placed it into the stream of commerce. Also, Amazon’s Business Agreement with Tenkoris promised that it would promote and merchandise the product. Furthermore, Amazon had significant control over the sales process. For example, Amazon offered all its customers an A to Z guarantee by which the company vowed to stand by all products sold on its site, including those sold by third party vendors. Also, Amazon prohibits third party sellers from contacting Amazon customers directly.

Ohio’s Product Liability Act’s (“OPLA”) definition of supplier is broad, and it extends liability beyond those who transfer title to a product. Moreover, courts should look to public policy considerations when interpreting the OPLA and determining who is a supplier. In doing this, courts are to keep in mind that product liability laws are meant to shift the risk of product related injury away from the consumer. Other considerations include incentivizing public safety and distributing the costs of compensation. Here these public policy factors all point to the conclusion that Amazon is a supplier under the OPLA and the lower courts erred by failing to consider these public policy concerns.

Even under the stricter test for liability that focuses on control of the transaction, Amazon is still liable as a supplier of the caffeine powder. This is because Amazon obtained payment and handled all communications with K.K. Furthermore, Amazon agreed to promote the product, recommended the powder, and prohibited Tenkoris from contacting K.K. The court of appeals was incorrect in finding that Amazon played a passive role here. Amazon abandoned neutrality and affirmatively promoted the product without verifying its safety, thus it should be held to be a supplier under the OPLA.

Amazon’s Argument

This is a straightforward case of statutory interpretation. R.C. 2307.71’s definition of supplier contains verbs that refer to ownership and control of products and other tangible hands-on actions. These general terms are then followed by the broad, catch- all phrase “otherwise participated in the placing of the product in the stream of commerce.” Under the ejusdem generis principle, vague words or phrases at the end of a specified list should be interpreted to refer to the same kind of items as specified in the list. Here, the otherwise included language of the statutory definition for supplier should be read in line with the earlier verbs relating to ownership or hands-on action with the product. Here, Amazon did not have any tangible contact with the product. Thus, Amazon is not a supplier under the OPLA.

Because this is strictly a statutory interpretation case, the Court should not look to public policy considerations in deciding whether Amazon is a supplier under the OPLA. This is especially true because the OPLA expressly abrogates all common law product liability claims. Evaluating public policy principles in determining liability under Ohio’s product liability laws is a job for the legislature, not the courts. Also, there is a growing judicial consensus against construing Amazon as a supplier.

Assuming it were proper for the Court to consider public policy factors in this case, Stiner’s case would still fail. Holding Amazon liable would not incentivize safety because Amazon has no control over products like Hard Rhino caffeine powder and no opportunity to test these products or make them any safer. Finally, even if the Court finds Amazon was a supplier under the OPLA, the Federal Communications Decency Act (“CDA”) would bar Stiner’s claims against Amazon.

Amici in Support of Amazon

The Chamber of Commerce of the United States of America (“U.S. Chamber”) and the Ohio Chamber of Commerce filed a joint amicus brief in favor of Amazon. The U.S. Chamber is the world’s largest business federation with over 300,000 members. The U.S. Chamber represents the interests of its members in matters before Congress, the Executive Branch, and the courts. The Ohio Chamber of Commerce is the state’s largest and most diverse statewide business advocacy organization. It works to promote and protect the interests of its more than 8,000 business members. These amici have an interest in cabining strict liability. They allege that the expansion of strict liability under tort law is harmful to American businesses, customers, and the national economy.

Amici argue that the statutory definition of supplier in the OPLA is clear and plainly does not include companies like Amazon that have a limited degree of contact and control over a product.

Student Contributor: Ivy Charneski