Nicolas McCarthy v. Amzn

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2026
• Docket: 23-35584
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICHOLAS MCCARTHY; et al., No. 23-35584

Plaintiffs-Appellants, D.C. No. 2:23-cv-00263-JLR

v. MEMORANDUM* AMAZON.COM, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted December 4, 2024 Submission Withdrawn December 5, 2024 Resubmitted February 19, 2026 Seattle, Washington

Before: W. FLETCHER, BERZON, and R. NELSON, Circuit Judges.

Plaintiffs, the McCarthy and Jónsson families, are successors-in-interest to

their deceased children, Ethan McCarthy and Kristine Jónsson. Ethan and Kristine

died by suicide after ingesting sodium nitrite they purchased from Amazon.com.

Plaintiffs sued defendant Amazon, asserting claims of (1) product liability under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the Washington Product Liability Act (“WPLA”), RCW 7.72.010, et seq.; (2)

common law negligence; and (3) common law negligent infliction of emotional

distress (“NIED”). They now appeal the district court’s dismissal of those claims.

We review de novo a district court’s dismissal of claims under Federal Rule of

Civil Procedure 12(b)(6). Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th

885, 889 (9th Cir. 2021). We reverse and remand.

1. Plaintiffs asserted a product liability claim under the WPLA sounding in

failure to warn. They also asserted a common law negligence claim.1 That claim

alleged that Amazon owed the decedents a duty of care under various state law

theories and breached that duty in multiple respects. The district court held that the

negligence theories, premised on Amazon’s role in marketing and facilitating the

sale of sodium nitrite, fall within the WPLA’s preemptive scope. McCarthy v.

Amazon.com, Inc., 679 F. Supp. 3d 1058, 1075–77 (W.D. Wash. 2023). “[T]he

common law principles of negligence and proximate cause govern product seller

liability claims under the WPLA.” Scott v. Amazon, Inc., No. 103730-9, __P.3d__,

2026 WL 468578, at *3 (Wash. Feb. 19, 2026) (analyzing substantially similar

claims under the WPLA). We therefore address the failure-to-warn product

liability and the negligence claims together under the WPLA. See id. at *5–6. So,

1 Plaintiffs also brought another product liability claim premised on an intentional concealment theory. See infra, p. 6.

2 23-35584 to prevail on these claims, plaintiffs must establish duty, breach, causation, and

damages. Hansen v. Wash. Nat. Gas Co., 632 P.2d 504, 505 (Wash. 1981). We

conclude that plaintiffs have adequately pleaded both claims.

a. As an initial matter, Amazon contends that before a seller can be held

liable, the WPLA requires plaintiffs to establish that an injury-causing product is

defective. But Washington courts have recently concluded otherwise. “There is no

defective product predicate anywhere in the text of the WPLA that restricts

liability for the negligence of a product seller . . . . [T]he WPLA expressly provides

that product sellers may be liable for negligence and the legislature did not include

any defective product requirement in the text of the statute.” Scott v. Amazon, Inc.,

559 P.3d 528, 538 (Wash. Ct. App. 2024), rev’d on other grounds, No. 103730-9,

__ P.3d __, 2026 WL 468578 (Wash. Feb. 19, 2026).

In Scott, a closely similar case, the Washington Supreme Court did not

directly address the Washington Court of Appeals’ defective product holding. But

it did determine that plaintiffs had established a WPLA claim and only the

elements of common law negligence, without any threshold showing that the

sodium nitrite was defective. See Scott, 2026 WL 468578, at *5-6. Taking the two

Scott opinions together, we conclude that the WPLA does not require that a

product be defective. The district court’s dismissal of plaintiffs’ common law

negligence claims on that ground was therefore improper. We express no view on

3 23-35584 the underlying claims’ ultimate viability.

b. Next, under Washington law, whether Amazon owed the decedents a duty

to warn of known hazards and whether Amazon breached that duty are questions of

fact that cannot be resolved at the Rule 12(b)(6) stage. “In Washington, every

individual has a duty to exercise reasonable care to avoid the foreseeable

consequences and harm from their acts.” Id. at *5. “[W]hether Plaintiffs’ harm, the

act of suicide, is a harm within the foreseeable range of the duty of reasonable care

that Amazon owed the decedents is a question of fact . . . for the fact finder to

decide[.]” Id. at *6. “The argument that Plaintiffs may have misused the product”

or that the “danger is obvious or known” “does not eliminate Amazon’s duty.” Id.

(citation modified). Plaintiffs have adequately pleaded duty and breach; Amazon’s

arguments to the contrary raise factual questions not amenable to resolution in a

12(b)(6) motion.

c. If plaintiffs establish that Amazon breached its duty by failing to provide

adequate warnings, whether Amazon’s breach proximately caused Ethan and

Kristine’s deaths is also a question of fact. Plaintiffs allege that Amazon knew

since at least 2018 that teenagers were purchasing sodium nitrite from

Amazon.com to commit suicide. They contend that Amazon therefore had a duty

to safeguard the decedents from the foreseeable consequences of the risk that they

might purchase sodium nitrite for the same purpose and that Amazon’s failure to

4 23-35584 do so proximately caused Ethan and Kristine’s deaths. Plaintiffs further allege that

Kristine “carefully considered and ruled out other methods” for taking her own life

because those methods would be too painful. Whether adequate warnings about the

similarly painful effects of sodium nitrite poisoning would have dissuaded

Kristine’s use of the product is a question of fact. “[W]e are unable to say, as a

matter of law, beyond a reasonable doubt, that the decedents’ deaths were not

proximately caused by Amazon's alleged tortious sales practices” and failure to

warn about the risks of sodium nitrite. Id. at *5. Nor does the fact that Ethan and

Kristine purchased sodium nitrite for the purpose of committing suicide and then

used the product for that purpose break the chain of causation. Under the facts

alleged here, “the act of suicide, as a matter of law, is not a superseding cause that

precludes Plaintiffs’ WPLA claims.” Id.

We therefore reverse the district court’s dismissal of plaintiffs’ WPLA

product liability claim.

2. We also reverse the district court’s dismissal of plaintiffs’ common law

NIED claim. The district court dismissed the NIED claim for lack of a predicate

negligence claim. McCarthy, 679 F. Supp. 3d at 1079 (quoting Est. of Lee ex rel.

Lee v. City of Spokane, 2 P.3d 979, 990 (Wash. Ct. App. 2000)). Because we

conclude that plaintiffs’ negligence and product liability claims are adequately

pleaded, we reverse the district court’s dismissal of plaintiffs’ NIED claim.

5 23-35584 3. Plaintiffs do not challenge the district court’s holding that the WPLA

intentional concealment claim premised on Amazon’s removal of consumer

reviews warning about the dangers of sodium nitrite is barred by the

Communications Decency Act. See 47 U.S.C. § 230. They instead contend that the

district court did not address other intentional misconduct allegations in their

complaint, namely, that Amazon intentionally misrepresented or concealed

information about the risks of sodium nitrite. On remand, the district court should

consider plaintiffs’ other allegations of intentional misconduct, any challenges

Amazon might raise to them, and whether the allegations are ultimately sufficient

to state a claim under the WPLA’s intentional misrepresentation prong.

REVERSED and REMANDED.

6 23-35584