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

“What does our precedent say about what those words mean, placing something in commerce?”

Justice French, to counsel for Stiner

“What is your response to opposing counsel’s argument that Amazon’s algorithm selected the product?”

Justice Fischer, to counsel for Amazon

On April 29, 2020 the Supreme Court of Ohio heard 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”).

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 searched Amazon’s website 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. The trial court 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 unanimous decision, 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 appeals 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.

Read the oral argument preview of the case here.

Key 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 held not to be a supplier because such “tangential participation” did not justify imposing strict liability.)

*Erie Ins. Co. v. Amazon.com, Inc., 925 F.3d 135 (4th Cir. 2019) (Held Amazon was not the “seller” of a defective headlamp and therefore did not have liability under Maryland products liability law.)

*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.)

*relied on by counsel during oral argument

At Oral Argument

Arguing Counsel

Brian K. Balser, Brian K. Balser Co. LPA, Elyria, for Appellant Dennis Stiner, Administrator of the Estate of Logan James Stiner

Brendan Murphy, admitted pro hac vice, Perkins Coie LLP Seattle Washington, for Appellees Amazon.com, Inc., Amazon Fulfillment Services, Inc., Amazon Web Services, Inc., and Amazon Services LLC

Stiner’s Argument

Logan Stiner’s friend, K.K. had never heard of Hard Rhino caffeine powder until she placed “pre-workout” into her search on Amazon. Amazon’s patented algorithm selected this deadly product for her to buy, despite the fact that Amazon had received several safety concerns about this product, including that a small amount could cause accidental overdose and death. K.K.’s search started the placement of this deadly product into the stream of commerce.

Amazon’s position that they only provide a platform for their selling partners to peddle their products is a myth. Amazon was and is in the best position to protect consumers from unsafe and dangerous products and to prevent dangerous products from being placed in e-commerce. The realities of today’s world of e-commerce, the facts of this case, and the policy reasons for strict liability in Ohio products liability law all support defining Amazon as a seller or supplier under Ohio law.  The policy reasons behind strict liability include protecting consumers from unsafe and dangerous products, preventing circulation of dangerous products, incentivizing safety, and shifting the risk to the entities that can protect against these dangers. Holding Amazon to be a seller or supplier accomplishes each of these policies under the facts of this case.

Amazon controlled the entire sales transaction from product selection to the completion of the purchase by K.K.  But for Amazon’s participation, this deadly powder would not have been placed into the stream of e-commerce and Logan would still be alive.  Amazon totally controls the transaction, based on the Business Solutions Agreement, which is the agreement that Amazon has with their selling partners and it dictates every transaction that occurs on Amazon.com. Amazon lists the product, and controls when the product is shipped.

The third-party supplier, Tenkoris in this case, is not involved in the sales transaction at all. Amazon is more like a sales agent, because Amazon is the only one that communicates with the purchaser. Tenkoris was not allowed to contact or have any information about K.K. Think of Tenkoris as a selling partner to Amazon. Once the transaction is completed, Tenkoris gets only the shipping information. It doesn’t know where to ship the product until Amazon tells it. Nor is the consumer allowed to have any contact with the third-party supplier.  The consumer also must go through Amazon. If the product gets returned, it goes to Amazon, not to the third-party supplier.

Furthermore, Amazon’s safety team is not allowed to investigate third party products based on their policy that they only investigate products where Amazon is listed as the seller. They do not investigate safety concerns on third-party products. If Amazon is subject to strict liability, it would be an incentive to Amazon to make sure that all the products are safe, not just their own.

Amazon’s Argument

Product liability law in Ohio is strictly a matter of statute. In 1988 the General Assembly removed product liability law from the common law realm. The legislature carefully balanced the interests of those involved and carefully defined when liability would be imposed on the various entities.

Most pertinent to this appeal, the General Assembly also provided the definition of a supplier. Amazon does not meet that definition. A supplier is defined 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.” It is undisputed that Amazon never did any of the seven statutorily listed action words. It never touched the product, set its price, or offered it for sale. It was Tenkoris that did all those things. What those seven action words have in common is some sort of ownership or control over the product, plus some sort of hands on action with the product.

So, the case turns on the catch-all phrase “otherwise participates in the placing of a product in the stream of commerce.” That phrase should not be read so broadly as to include undefined concepts such as promotion, possession, or of somehow being indispensable to a transaction. It certainly cannot only be physical possession. That is an overbroad concept that would sweep in everybody.

The Anderson case from this Court gives some examples of placing an item in the stream of commerce, all of which involve the entity selecting and providing the product. Some examples are providing a demonstration unit or providing a free sample. But notions like promotion, neutrality and indispensability are nowhere in the statute. Reading those into the statute would be contrary to legislative intent, which was to restrict supplier liability, not to add to it or to go into some vague multi-factor policy notion of what a supplier is.

As for the argument that Amazon’s algorithm selected the product, there is no record support for that. K.K. went on to amazon.com, typed in pre-workout and several products were listed.  She then clicked on one of those and only when she went into that sub-selection level did the Hard Rhino pure caffeine powder come up as a buying option. It is also important for the Court to note that Tenkoris also sold Hard Rhino pure caffeine powder on E-bay and on Tenkoris’s own website.

The president of Tenkoris was very clear that Tenkoris could communicate with users on Amazon.com. Amazon provides the buyer/seller communications tool.  The buyer and seller absolutely can communicate with each other.  There is a button on Amazon.com which says “contact seller.” Additionally, customer reviews about the product, including safety concerns, are posted on Amazon.com and everyone has access to those, including Tenkoris. Also, Amazon’s product safety procedures absolutely do apply to third party products.

The history of strict liability from the 60’s and 70’s is a retrenchment of liability and a recognition that things went too far. That is appropriate because if liability were expanded based on product promotion or on vague policy notions of being able to compensate or on some sort of ability to do something with the product would make liability practically limitless.

What Was On Their Minds

Role of Amazon in the Sale of the Product

How does the plaintiff address the fact that Amazon never had control over the product, asked Justice Donnelly?  If Amazon had taken this product into one of its storage facilities before it was distributed to the consumer would that have made a difference in whether they had crossed the line? Did the promotional fee that the manufacturer paid Amazon play into the algorithm that brought it to the screen in the search?

Is Amazon a clearinghouse for the financial transaction, asked Chief Justice O’Connor? Isn’t it to the advantage of Tenkoris that Amazon ensures this is a complete and valid transaction? Is it Amazon’s  universal policy that businesses like Tenkoris cannot have any contact with the consumer? Who orchestrated hopping from one product that originally shows up in a search and then the consumer clicks on that and it goes to the other? Is that Amazon? Who creates the page that takes the consumer from one product choice to another? Amazon brings products to the attention of the consumer at various stages in the search based on algorithms and you can go down a rabbit warren on your way to selecting a product?

If there is a problem with the product how does the consumer relay that, asked Justice Stewart? Once Amazon finds out, does Amazon contact the supplier about the problem?

Does Amazon’s fulfillment center control the product, asked Justice DeWine?

Role of Tenkoris in the Sale of the Product

Tenkoris gets the word from Amazon that a consumer has paid for this product, go ahead and ship it, and here’s where you ship it to, and here’s the amount you ship, asked Chief Justice O’Connor? Why would they need to have any contact with the consumer here? Does Tenkoris sell their product through any other format? Are the majority of their sales through Amazon, through eBay or through Tenkoris’s own webpage? Couldn’t K.K. have bought this product other than through Amazon?

If Tenkoris is not allowed to have any information on a consumer, how do they get the product to the address, asked Justice Stewart? Aren’t they given some information, so they know where to send the product?

Statutory Definition of Supplier

Why is Amazon a supplier, asked Justice DeWine? Because they made the product available on the internet? Which of the terms in the statute applies to make Amazon a supplier? Would eBay be a supplier? What do those 7 listed items in the statute have in common? What is the category we are looking at? Is there some line here that if an internet web service does a really good job or does a few more things it crosses that line and becomes a supplier? What exactly is that line?

“Otherwise participates in the placing of a product in the stream of commerce.”

What does our precedent say about what those words mean, placing something in commerce, asked Justice French?

What are some examples of what that language would cover, asked Justice DeWine? What would only be encompassed by “otherwise participates”? Why did the legislature put the first seven terms in the statute at all? Why not just say whoever participates in putting a product in commerce?

How it Looks from the Bleachers

To Professor Emerita Bettman

I’m calling this for Amazon, although I don’t want to, because I think the Ohio legislature intended to sharply limit strict liability and because I don’t think the justices in this case want a public policy overread into those mysterious words from the legislature, “otherwise participates in the placing of a product in the stream of commerce.” Student contributor Ivy Charneski and I both agree that neither lawyer satisfactorily explained what that phrase meant. Plaintiff’s counsel argued too much was included while defense counsel argued too little, making Amazon seem like nothing but some unassuming, unimportant passive piece of the puzzle. As Judge Motz wrote in her separate concurrence in Erie from the 4^th circuit, “Amazon played an outsized role in the transaction at issue in this case.” Same here.

As I have written many times, I have a notorious plaintiff’s heart.  And in fact, it brought a smile to my face when Stiner’s brief quoted extensively from the decision of the First District Court of Appeals in Welch Sand & Gravel v. O & K Trojan, since I wrote that decision, which appears to lean heavily on the public policy behind the statute, which is to shift the risk of product-related injury away from the product consumer. But that decision was written before Amazon was born, or was still just a fledgling bookstore. And that really is a key point here. Times have changed. Product liability laws enacted back in the day don’t fit these new internet retailers like Amazon. Of course the common law is much better suited to adapt to changing times than a statute. It is only fair to mention that Amazon didn’t much care for Welch Sand & Gravel, particularly for its finding, erroneous in its view, interpreting Anderson as holding that facilitating the placing of the product into the stream of commerce can make someone a supplier.

While Amazon may not, as it strenuously argues here, control the product, it certainly controls the entire process by which the product enters the stream of e-commerce. And while there may be a national trend in federal courts in favor of Amazon in cases like this, the wording in the various state statutes is different.  Ohio, for example, uses “supplier” where others use “seller,” and includes that broad language “otherwise participates in the placing of a product in the stream of commerce.” So, this case will probably turn on how broadly or narrowly the Supreme Court of Ohio interprets that phrase, whether it leans more toward “facilitates” or more toward ” control plus hands-on action.”

Before I conclude, in addition to the unspeakable loss experienced by the Stiner family, let’s not forget how devastating this experience was to K.K., the young woman who recommended this product to her high school friend.  I suspect she felt she relied on Amazon to help make the choice she did. 

To Student Contributor Ivy Charneski

First of all, I almost forgot I was watching a virtual oral argument on Zoom because everything flowed seamlessly despite the circumstances. Right off the bat, Justices French and DeWine wanted to hear about the statutory language of OPLA and none of the Justices seemed particularly interested in policy arguments. I think the Court desperately wanted a concise answer of what the “otherwise participates” language in OPLA means. However, I don’t they got a clear answer from either side.

Stiner’s counsel’s answer seemed to be, whatever it means everything Amazon did here cumulatively satisfied that statutory language. I don’t think this was a clear enough answer for the Court. Amazon’s counsel said the language means “ownership or control plus some kind of hands on action.” However, the Court didn’t seem satisfied with this either. I think despite initially appearing amenable to Stiner’s argument, the Court will ultimately side with Amazon as that seems to be the current trend across the country.