Court rules Amazon not liable for OD death

In a case originating out of Lorain County, the Ohio Supreme Court ruled Thursday that Ohio product liability law does not extend to an online marketplace like Amazon.com. In their unanimous decision regarding the 1988 Ohio Products Liability Act, justices ruled that Amazon is not defined as a "supplier" as it relates to online sales. The case revolved around a lawsuit by the family of 18-year-old Logan Stiner, a Keystone High School student who died of caffeine toxicity three days prior to his high school graduation in May 2014 after ingesting caffeine powder purchased on Amazon.com and provided to him by a friend. The FDA and the state of Ohio banned caffeine powder sales after Logan Stiner's death, and Tenkoris — the powder's manufacturer — later filed for bankruptcy protection. The family sued Amazon, Tenkoris and Kelsey Kidd, who gave the powder to Stiner. Ohio justices heard oral arguments via the Internet in April. Amazon's attorney argued that Amazon never possessed the caffeine powder called "Hard Rhino" during the sales process or set its price. Justices wrote that when considering what a "supplier" is under Ohio law, they had to rely on what the Ohio General Assembly's intent was in creating the law more than 30 years ago. "A supplier is one who 'sells, distributes, leases, prepares, blends, packages, labels, or otherwise participates in the placing of a product in the stream of commerce,'" justices wrote, ruling that "All the specified actions involve some act of control over a product or preparation of a product for use or consumption." Ohio lawmakers in 1988 "did not intend to impose supplier liability on persons who do not exercise a requisite level of control over a product," or otherwise on those who do not have possession of the product, justices ruled. And while Amazon may participate in a product's distribution "by providing the financial means for its sale or arranging a lease of the product," this does not make them "suppliers" for the purposes of product liability, the justices ruled, placing that label instead on Tenkoris, which manufactured the caffeine powder and provided it to another for sale. "Stiner has not shown that Amazon exercised the requisite amount of control over the caffeine powder sold on its marketplace," the justices concluded. Amazon spokesperson Mary Kate Mccarthy said the company had no comment on the court's decision Thursday. It was the second appeal by the Stiner family of lower court rulings. Lorain County Common Pleas Court and the 9th District Court of Appeals in Akron had earlier ruled in Amazon's favor, saying the company did not meet the definition of a supplier of the powder available through its website. Though the justices were unanimous in their final opinion, Justice Michael Donnelly wrote a separate opinion saying it was up to the Ohio legislature to fix the loophole in Ohio law that lets online sellers escape product liability claims. The definition of a "supplier" under the Ohio Products Liability Act "is worded in such a way that it does not allow us to incorporate in it the role that appellee, Amazon.com, plays when a sale on its website is fulfilled by a third-party merchant," Donnelly wrote. "I disagree, though, with the notion that it would not promote the purpose of products-liability law to hold Amazon liable for unsafe products that would not reach consumers but for the consumers' decision to shop on Amazon's website," he wrote. "To the contrary, the failure to hold Amazon liable for injuries to its customers thwarts the purpose of products liability law because it puts Amazon's customers at risk of being injured by a seller that can easily make itself unreachable for redress." Strict liability, which has been recommended in other states and supported by Amazon itself, "would incentivize Amazon to select and monitor reputable merchants with safer products just as strict liability incentivizes sellers to select safer products that are sourced from reputable wholesalers or manufacturers," Donnelly wrote. The Ohio Products Liability Act was written in 1988 when "we were still in the pre-Internet age," he wrote. "We did not yet have a product-distribution model involving a virtual company providing the face of a retail sale, publishing information about products for sale, engaging in all customer interactions regarding a sale, taking the customer's payment during a sale, ensuring that the product is received by the customer in exchange for that payment, and handling returns and other customer service issues arising from that sale, all without ever owning, possessing, or even seeing the product that was sold." "Thus, when the Act became effective, the General Assembly undoubtedly had seller-facilitated and seller-fulfilled sales in mind. We should remember that the descriptors used ... to explain the meaning of 'supplier' reflect the paradigm of retail sales in the 1980s; they need not be viewed as bedrock concepts that dictate our understanding of the purpose behind the Act," he wrote. Sales and purchasing have "changed radically since 1988," but "The divide between the pre-Internet age and the current age is so profound that laws like this Act might as well have been written in the stone age" and it isn't up to the Ohio Supreme Court to write a more consumer-friendly law, Donnelly argued. "So, in the stone age we must remain," he concluded. Attorney Brian Balser, who represented the estate of Logan Stiner and the Stiner family in the lawsuit, said Thursday that despite the outcome of the case, he was pleasantly surprised with Donnelly's opinion, which "is our argument, and has been from day one." Balser said he was proud the Stiner family and he "took on the largest company in the world," — its value is estimated at $1 trillion — which could afford to spend millions on its own legal defense, with no resources. He said California legislators recently proposed a bill that would start holding Amazon responsible for what happens with the products it sells on its website, and that Amazon came out in support of that proposition. Brian Huseman, the vice president of public policy for Amazon, wrote in an Aug. 21 blog post that the company shared California legislators' concerns about keeping consumers safe through Assembly Bill 3262. Amazon stated that the company would support the bill if it applied to "all online marketplaces regardless of their business models," CNBC.com reported. The bill's sponsor did not advance it in time for California's legislative deadline, the website reported Aug. 31. Balser said Thursday he "would assume Amazon would support a law here in Ohio" similar to that in California. "It's very disappointing, but right now as it stands, there's no product liability law or protection for Ohio consumers if you buy something online," he said. "Amazon made $59 billion in third-party sales online last year, and they're immune to product liability in Ohio." Balser said he has been in contact with several Ohio legislators to see if Ohio's "archaic" product liability law can be amended to include online sales and e-commerce. "I hope Ohio consumers will be protected buying something online, just as if they bought something at Walmart or Target" — which right now isn't the case, Balser said. He said he hopes something good besides a ban on caffeine powder can come out of the Stiners' "horrific" loss and the subsequent six-year battle to hold Amazon responsible. "Would I do it again? Absolutely. I can only hope Amazon has made changes in their internal policies," Balser said. "We still think Amazon should be held responsible for what they did. ... The (Ohio) General Assembly, the ball is in their court if Ohio consumers are going to be protected in e-commerce." Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @daveobrienCT on Twitter.