[00:00:00] Speaker 05:
We will move on to, uh, argument in, let's make sure we've got a couple submitted here.

[00:00:07] Speaker 05:
So we're moving on.

[00:00:15] Speaker 05:
We've got McCarthy versus Amazon case number 23 dash three five five eight four.

[00:00:56] Speaker 03:
I know it's here.

[00:01:03] Speaker 05:
Mr. Talmage.

[00:01:04] Speaker 03:
Thank you.

[00:01:05] Speaker 03:
Good morning.

[00:01:06] Speaker 03:
May I please the court?

[00:01:06] Speaker 03:
Phil Talmage here representing the families that were involved in these terrible suicides.

[00:01:11] Speaker 03:
As the court knows, this is a horrible case involving Amazon's facilitation of the suicide deaths of vulnerable young people by supplying them with sodium nitrite

[00:01:22] Speaker 03:
an industrial strength invariably lethal, a poison with no household uses.

[00:01:29] Speaker 03:
And now, of course, we have the decision of the Washington Court of Appeals and Scott, which fundamentally undercuts the three fundamental components of the district court's decision in this case that dismissed the family's complaints under Rule 12b6 grounds.

[00:01:46] Speaker 03:
What we're asking the court to do today is essentially.

[00:01:50] Speaker 05:
Your position is the court, assuming we took the Court of Appeals at face value and said this is how Washington's going to be, you think it

[00:01:59] Speaker 05:
It advocates for reversal of the district court.

[00:02:03] Speaker 03:
Exactly.

[00:02:04] Speaker 05:
It seems like a pretty strained interpretation of the law.

[00:02:08] Speaker 05:
I mean, as I read the case, no, I mean, it's not final.

[00:02:12] Speaker 05:
You've said you're going to appeal it.

[00:02:14] Speaker 05:
But as I've read the current posture, it says pretty clearly that this is not a foreseeable risk and would not fit into the causal chain.

[00:02:26] Speaker 03:
Well, here's why we believe that the fundamental decision of the district court was undercut by Scott.

[00:02:33] Speaker 03:
The district court relied on a notion under the Washington Product Liability Act, the seller liability provision 040, 770 to 040, that there had to be a defect in the product as a predicate to a lawsuit.

[00:02:46] Speaker 01:
They said not, but then on other grounds came to the same conclusion.

[00:02:50] Speaker 01:
That's right.

[00:02:50] Speaker 03:
Exactly, Your Honor, but they blew that up.

[00:02:52] Speaker 03:
The second piece of the decision said, this was the argument that the district court had made, that there was a preemptive effect to the Washington Product Liability Act regarding seller negligence claims, and that the principles of common law negligence in Washington didn't animate the term negligence in 772-0401A.

[00:03:14] Speaker 03:
Wrong again.

[00:03:14] Speaker 03:
There is no such preemptive effect.

[00:03:18] Speaker 03:
The restatement principles- What would it be anyway?

[00:03:20] Speaker 01:
What would the negligence be if it's not negligence?

[00:03:22] Speaker 03:
Well, it's negligence within the various duties that the restatement talks about.

[00:03:26] Speaker 03:
And we discussed a variety of them.

[00:03:28] Speaker 01:
We discussed... What did the district court think what negligence was if it wasn't negligence?

[00:03:32] Speaker 03:
Well, the district court's vision on this was that they believed that if the negligence theory had a product effect, then it was somehow preempted.

[00:03:42] Speaker 01:
Right.

[00:03:42] Speaker 01:
So they're the same thing.

[00:03:44] Speaker 01:
I mean, there's really just one piece there.

[00:03:46] Speaker 03:
Well, but the difference is the district—the Court of Appeals and Scott went through the various elements of the restatement that we had argued.

[00:03:54] Speaker 03:
They ignored Restatement 388, I might add.

[00:03:57] Speaker 03:
They addressed 315, the special relationship of a business invitee, business to a business invitee.

[00:04:04] Speaker 01:
Which they said did not apply.

[00:04:05] Speaker 03:
They did it in a footnote.

[00:04:06] Speaker 03:
They addressed it in a footnote.

[00:04:07] Speaker 03:
They addressed 281, the traditional negligence, you have a duty to avoid in your interactions with others, enhancing the foreseeable risk of harm to others, and said the duty exists.

[00:04:20] Speaker 03:
They said the duty exists in star 13 of their opinion.

[00:04:24] Speaker 03:
They then concluded, based on this Webster case, a split decision that said you have no duty to prevent suicide, that somehow there was a lack of a duty to fail to facilitate suicide, notwithstanding a statute that said in Washington, it's a crime.

[00:04:54] Speaker 01:
And so they essentially invite you to go to the Washington Supreme Court.

[00:04:58] Speaker 05:
It does.

[00:04:58] Speaker 05:
They punted.

[00:04:59] Speaker 05:
What's the time frame on that?

[00:05:01] Speaker 03:
Well, the petition for review would be due 30 days from the date of the Scott decision.

[00:05:06] Speaker 03:
There's probably not going to be... Christmas.

[00:05:08] Speaker 03:
Yeah, Merry Christmas.

[00:05:09] Speaker 03:
Council, you get to do a petition for review.

[00:05:11] Speaker 03:
Merry Christmas.

[00:05:12] Speaker 03:
But it's due.

[00:05:13] Speaker 03:
It's a hard 30 days.

[00:05:15] Speaker 03:
And then the court addresses the issue in a time frame of usually four to five months.

[00:05:20] Speaker 03:
As to whether to take it.

[00:05:22] Speaker 03:
As to whether to take it.

[00:05:23] Speaker 03:
But here's the significant thing, and this is something I'm not certain the panel is aware of.

[00:05:28] Speaker 03:
We have the decision of Commissioner Michael Johnston on the issue of review.

[00:05:34] Speaker 03:
We had sought to transfer the case to the Washington Supreme Court, the Scott case.

[00:05:39] Speaker 03:
And ultimately, the court concluded, Commissioner Johnston concluded, that that was not the case.

[00:05:45] Speaker 03:
But he pointed out defect is wrong, negligence, that seems to be the principle.

[00:05:51] Speaker 03:
He suggested that the case law, the Webster case, seemed to be pretty flawed as a basis for the trial.

[00:05:57] Speaker 03:
the decision to grant review.

[00:05:59] Speaker 03:
In the Washington Supreme Court, unlike the United States Supreme Court, the commissioner of the Supreme Court works up the issues for the court's review.

[00:06:08] Speaker 03:
So that commissioner acts as something of a gatekeeper to the court.

[00:06:12] Speaker 03:
So you have the individual who he and his staff.

[00:06:16] Speaker 05:
So you're basically making the case that this has a higher likelihood of being accepted.

[00:06:21] Speaker 03:
I would say absolutely so, Your Honor.

[00:06:24] Speaker 03:
In fact, the commissioner said this is a case in his ruling, this is a case that's likely going to be coming to us at some point.

[00:06:31] Speaker 03:
And what the court really wanted was for the Court of Appeals to hone the issues.

[00:06:36] Speaker 03:
Well, the Court of Appeals has now done that, although they punted on the fundamental question about whether all of this old case law on superseding cause relating to suicide was still viable.

[00:06:46] Speaker 03:
I mean, it was case law based on the first restatement of torts, not the second, not the third.

[00:06:52] Speaker 01:
Actually, it wasn't, because the first restatement wasn't even there yet.

[00:06:54] Speaker 01:
Yeah.

[00:06:55] Speaker 01:
Anyway.

[00:06:55] Speaker 03:
But they relied on the first restatement in those old decisions.

[00:06:59] Speaker 01:
I checked that out.

[00:07:00] Speaker 01:
But anyway, go ahead.

[00:07:01] Speaker 03:
Yeah.

[00:07:01] Speaker 03:
But the bottom line in this situation is those cases relating to superseding cause with suicide as a matter of law, superseding cause as a matter of law in the suicide context, have been undercut by modern Washington Supreme Court law on superseding.

[00:07:17] Speaker 01:
You argue in any way, even if they work with law, they don't apply here.

[00:07:20] Speaker 01:
Absolutely not.

[00:07:21] Speaker 01:
This is not about fomenting the suicide.

[00:07:26] Speaker 01:
prevent it's not preventing it directly with with the object

[00:07:32] Speaker 03:
That's right.

[00:07:33] Speaker 03:
It's a situation where the defendant in this case provided the instrumentality of death.

[00:07:39] Speaker 03:
That didn't occur in Webstad.

[00:07:41] Speaker 03:
And Webstad was unique on its facts.

[00:07:43] Speaker 03:
A split case, highly politically charged case, because the defendant was the Pierce County executive.

[00:07:49] Speaker 03:
And this young woman suicided in his house.

[00:07:55] Speaker 03:
And the circumstances, as you might expect, would be pretty colossal in terms of the political out

[00:08:01] Speaker 03:
cry involving that kind of situation.

[00:08:04] Speaker 03:
But in that case, the court basically said, looking at the statutory provisions, there's no duty to prevent suicide.

[00:08:13] Speaker 03:
But it's certainly different where there is a statute that says you can't facilitate or aid the committing of suicide.

[00:08:19] Speaker 03:
And that could be a predicate for negligence under Washington law, RCW 5.4050, making that evidence of negligence.

[00:08:27] Speaker 05:
So different would you be getting to the merits?

[00:08:30] Speaker 05:
Would it be different if they had a warning on this product?

[00:08:34] Speaker 05:
It said, you know, this could be used for suicide.

[00:08:38] Speaker 05:
Be careful.

[00:08:39] Speaker 05:
Is that what you're claiming?

[00:08:42] Speaker 03:
Well, that's part of it.

[00:08:43] Speaker 03:
And but the you'll hear Amazon's step up and they'll cry a bunch of crocodile tears about how tragic this case is and how they really regret it all.

[00:08:52] Speaker 05:
I think everybody can agree the case is tragic.

[00:08:54] Speaker 03:
I think that's true, but they had in their possession knowledge that kids were committing suicide with sodium nitrate in 2018.

[00:09:01] Speaker 03:
They continued to sell this product for four years.

[00:09:05] Speaker 03:
They had letters from members of Congress.

[00:09:08] Speaker 03:
They had a New York Times investigation.

[00:09:10] Speaker 03:
They had bans in foreign countries.

[00:09:12] Speaker 03:
They didn't restrict

[00:09:14] Speaker 03:
the sale of sodium nitrate to adults.

[00:09:17] Speaker 03:
They didn't restrict the sale of sodium nitrate on their website to commercial users.

[00:09:21] Speaker 05:
They continued to sell this out.

[00:09:24] Speaker 05:
You're not saying that a warning would have solved it.

[00:09:26] Speaker 05:
You think they would have had to take some extra.

[00:09:28] Speaker 03:
Warning's part of it, Your Honor, and we say that's a fact issue, but the additional thing is they had to take steps with respect to this product being on the website.

[00:09:36] Speaker 01:
The warning seems Eureka's point, because, I mean, these kids bought it because they knew it would be used to commit suicide, so what good would a warning on the packaging that this could be used to commit suicide do?

[00:09:49] Speaker 03:
They didn't know, Your Honor, that it was irretrievably deadly.

[00:09:52] Speaker 01:
That's your sort of psychological thing about how children don't really understand this.

[00:09:56] Speaker 03:
That's right.

[00:09:57] Speaker 03:
And that's the importance of the pediatric amicus brief.

[00:10:00] Speaker 01:
If you wrote on the warning that this could kill you, well, they know that.

[00:10:05] Speaker 01:
You're saying they're not absorbing it in a mature sense.

[00:10:09] Speaker 01:
They don't understand that means they're not coming back.

[00:10:10] Speaker 01:
But that's not going to be sitting on the warning.

[00:10:13] Speaker 03:
Some of the warnings merely said it's an irritant.

[00:10:16] Speaker 03:
The product is an irritant.

[00:10:18] Speaker 00:
And to make it worse, Amazon not only has the product, but then it has related products, the things that are going to facilitate it and make it worse, the anti-vomiting and so on.

[00:10:28] Speaker 00:
Absolutely.

[00:10:29] Speaker 00:
I want to come back to the question as to what do we do with the Court of Appeals decision.

[00:10:34] Speaker 00:
I'm speaking now for myself.

[00:10:36] Speaker 00:
We've not conferenced on this case.

[00:10:37] Speaker 00:
But it seems to me it makes sense for us to at least wait to see whether the Washington Supreme Court is going to take it.

[00:10:42] Speaker 00:
If the Washington Supreme Court doesn't take us, what should we do?

[00:10:49] Speaker 03:
Well, if the Washington Supreme Court doesn't take it, I think this court can do one of several things.

[00:10:56] Speaker 03:
It can certainly predict what the Washington Supreme Court, the highest court of Washington, would do on the suicide effect issue.

[00:11:04] Speaker 01:
If they don't take it.

[00:11:06] Speaker 01:
I understand that it's such a discretionary review, but this is a high-profile situation, and one, as you say, that has a history.

[00:11:14] Speaker 01:
And if they don't take it, don't we get a message from that?

[00:11:17] Speaker 03:
Well, we do in part.

[00:11:18] Speaker 03:
But as the Court knows, the fact that the Supreme Court of Washington does or does not grant review is not precedential.

[00:11:25] Speaker 03:
It's not consequential.

[00:11:26] Speaker 01:
Well, I understand that.

[00:11:26] Speaker 01:
But in terms of our prediction about what the Washington Supreme Court would do, it's pretty good information.

[00:11:32] Speaker 03:
It's prudential.

[00:11:32] Speaker 03:
I get that.

[00:11:33] Speaker 03:
And I agree with that as a proposition.

[00:11:35] Speaker 03:
But this Court could do one of three things.

[00:11:37] Speaker 03:
It could simply decide the issue based on what it would predict the Washington Supreme Court would do.

[00:11:42] Speaker 03:
It could do that now.

[00:11:44] Speaker 03:
It could state the proceedings pending the disposition by the Washington Supreme Court of the Scott Petition that I assure you is 100% going to be filed.

[00:11:53] Speaker 03:
I'm drafting it.

[00:11:54] Speaker 04:
Okay, I was waiting.

[00:11:56] Speaker 03:
Filed again.

[00:11:57] Speaker 04:
I thought you were going to go a little further.

[00:11:58] Speaker 03:
No, it's getting there, believe me, Your Honor.

[00:12:02] Speaker 03:
And then the third thing the Court could do, we asked the Court to certify the issues to the Supreme Court.

[00:12:06] Speaker 01:
It's quite presumptuous at this point, because they have the opportunity to decide.

[00:12:11] Speaker 01:
This is a question.

[00:12:13] Speaker 01:
Is it exactly the same case?

[00:12:15] Speaker 01:
Is there anything different about these cases?

[00:12:17] Speaker 03:
There are some slight factual variations.

[00:12:20] Speaker 03:
In the state court cases, there was evidence that the kids tried to reverse the effects of suicide.

[00:12:27] Speaker 03:
They called their parents in the course of the effect of the poison.

[00:12:33] Speaker 03:
They called 911 in the course of the effect of the poison.

[00:12:36] Speaker 03:
So the notion that they had irretrievably set upon the decision to kill themselves.

[00:12:41] Speaker 05:
But it sounds like the legal issues.

[00:12:43] Speaker 03:
The legal issues are the same.

[00:12:44] Speaker 03:
But I think the factual issues, there are factual differences.

[00:12:48] Speaker 03:
And in this case, you have an additional factual point.

[00:12:50] Speaker 03:
You have a 16-year-old girl who got

[00:12:53] Speaker 03:
Amazon account, which Amazon says you're not supposed to have as a minor, she gets the drug or the chemical.

[00:13:01] Speaker 03:
You have the circumstance of the mother who canceled the order.

[00:13:05] Speaker 03:
that she saw that appeared, and she canceled it, and Amazon delivered the poison anyway.

[00:13:11] Speaker 00:
Amazon says it's canceled, but it wasn't.

[00:13:13] Speaker 03:
That's exactly right.

[00:13:15] Speaker 03:
Exactly right, Your Honor.

[00:13:15] Speaker 03:
And that's what you've got.

[00:13:16] Speaker 03:
And you've got, as I mentioned, you have Amazon knowingly being involved in this.

[00:13:21] Speaker 03:
Some of their competitors, Etsy, eBay, they stopped selling this thing.

[00:13:26] Speaker 03:
And Loud Wolf, one of the actual manufacturers of sodium nitrate, they said, take this off of your website, Amazon.

[00:13:36] Speaker 03:
They did, once they started to realize that it was being used for suicide by kids.

[00:13:41] Speaker 01:
But after these children.

[00:13:42] Speaker 03:
But after these kids, that's right.

[00:13:44] Speaker 03:
They learned and did that at that point.

[00:13:46] Speaker 01:
So at this point, is there sodium nitrate on the Amazon website?

[00:13:50] Speaker 03:
No, but Amazon has not promised never to put it back on its website again.

[00:13:55] Speaker 03:
They've taken it off for prudential reasons, but you can ask counsel for Amazon.

[00:14:00] Speaker 03:
Will they make an irrevocable promise to you not to put it back on their website once all this litigation is over?

[00:14:05] Speaker 03:
They haven't made such a promise to anybody.

[00:14:07] Speaker 05:
But that doesn't really resolve your case, right?

[00:14:08] Speaker 03:
But it wouldn't resolve our case.

[00:14:10] Speaker 01:
Could a 16-year-old walk into a hardware store and get this?

[00:14:13] Speaker 03:
No.

[00:14:14] Speaker 03:
Why?

[00:14:15] Speaker 03:
because I mean I I think you have to get it I think you have to get it through you know through these websites specialized websites I don't believe it's I don't believe it the real world isn't operating anymore at all I don't I don't know that it's being carried by any any hardware stores or any kind of physical bricks and mortar sale I mean I mean you have a good point that they

[00:14:36] Speaker 01:
are much less likely to, but I strongly suspect they could.

[00:14:41] Speaker 03:
I don't know that that's been teased out on the record, Your Honor, but I'm not aware of any circumstances where it can be accessed by somebody walking into their local True Value or some other hardware store or something like that.

[00:14:55] Speaker 03:
The bottom line in this case is that you've got some fundamentally wrong

[00:15:01] Speaker 03:
perceptions about the Washington Product Liability Act by the trial court.

[00:15:04] Speaker 03:
There is no product defect predicate to a lawsuit.

[00:15:06] Speaker 05:
Well, but we're going to get some conclusion to that, either through a court of appeals decision that stands or through a Supreme Court review.

[00:15:15] Speaker 03:
That's correct.

[00:15:16] Speaker 03:
But I can tell you this much, Your Honor, and this is something that's been glossed over in the record on the issue of defect.

[00:15:21] Speaker 03:
The Washington Supreme Court entabled

[00:15:24] Speaker 03:
86 Washington 2nd at 154 specifically held pre-Washington product liability law.

[00:15:31] Speaker 03:
There is no requirement of proving a product defect as a predicate to a 402A common law cause of action for product liability.

[00:15:39] Speaker 03:
What the Washington legislature was doing in 040, a paper that is a seller liability case, pre-WPLA, what the Washington legislature was doing, and I have a little bit of cognizance of what the legislature of Washington had in mind with regard to this issue,

[00:15:54] Speaker 03:
having been the chair of the Senate Select Committee on Product Liability and Tort Reform that wrote this law, the fact of the matter was the legislature was trying to limit seller liability.

[00:16:04] Speaker 03:
Sellers were strictly liable.

[00:16:07] Speaker 03:
And what the legislature wanted to do was to diminish seller liability to circumstances of negligence only, and that's reflected in the language of the statute.

[00:16:15] Speaker 01:
But is the negligence that you're forwarding only about the warnings or also about just selling the stock?

[00:16:22] Speaker 03:
It's about everything.

[00:16:24] Speaker 03:
It's about any kind of common law negligence.

[00:16:26] Speaker 03:
Amazon's made the argument that somehow negligence stands aside from everything else.

[00:16:32] Speaker 01:
On the non-warning issues, the questions are essentially duty and proximate costs.

[00:16:38] Speaker 03:
Yeah.

[00:16:38] Speaker 03:
I mean, it's the traditional negligence theories.

[00:16:41] Speaker 03:
But the bottom line was the legislature used the term negligence with a complete understanding of what the common law in Washington meant with respect to negligence.

[00:16:49] Speaker 03:
It's charged with that responsibility under Washington law.

[00:16:53] Speaker 03:
It had to be, it's presumed that the legislature knew what common law negligence meant and it used the term negligence, which is a common law laden term in doing what it did.

[00:17:03] Speaker 05:
So let me ask one final question before.

[00:17:07] Speaker 03:
Yes.

[00:17:07] Speaker 05:
Reserver, but I mean, we're stuck in a situation, not stuck, but the situation is we've got a court of appeals decision that's either going to stand or we're going to get a Supreme Court.

[00:17:17] Speaker 05:
a decision, regardless of which way that goes, I assume the proper course would be to ask for supplemental briefing.

[00:17:24] Speaker 05:
I mean, the arguments you're making, all we have right now are 28-J letters.

[00:17:28] Speaker 05:
I'm assuming that you would want the opportunity to make the case in some supplemental briefing as to why, in your view, Scott,

[00:17:37] Speaker 05:
If Scott stands as a court of appeals decision, why why that yeah, that would be very helpful Your honor.

[00:17:43] Speaker 03:
I think it would be it would be very useful I mean, this is a this is a case where you're you're put in the position of having to predict what the highest court in Washington's gonna do

[00:17:52] Speaker 03:
you do that all the time but in this case you've got a court of appeals decision that the supreme court of washington wanted to focus the law and to address the law and what did that court do it punts on one of the fundamental issues in the case if i were the washington supreme court i would say well this is helpful because on the product defect question

[00:18:12] Speaker 01:
They did resolve it, and at least for myself, they seem pretty persuasive.

[00:18:18] Speaker 01:
And so it does narrow the issues for purposes of the Washington Supreme Court to essentially whether these cases saying that suicide is a superseding cause either don't apply here or shouldn't go forward.

[00:18:35] Speaker 01:
I mean, that's basically where we are, as I understand it.

[00:18:37] Speaker 03:
I think that's right, but you have one additional feature.

[00:18:40] Speaker 03:
Before I sit down, I want to point this out to the court, the Adgar case of Division 2 of the Court of Appeals.

[00:18:46] Speaker 03:
We provided it as a supplemental authority.

[00:18:48] Speaker 03:
Adgar is a recent case of the court.

[00:18:50] Speaker 03:
This is a case where a local public utility district leaves the staff, leaves the truck running with the keys in the ignition.

[00:18:58] Speaker 01:
It seemed what they were really saying was, look, the danger was that he was going to get in the car.

[00:19:03] Speaker 01:
drunk and he was going to hurt somebody.

[00:19:05] Speaker 01:
Whether he hurt somebody because he was trying to commit suicide or because he was just drunk and ran into somebody really isn't the question in terms of that's how I read it.

[00:19:13] Speaker 03:
But his testimony, Your Honor, was I was intending to commit suicide with his truck and running into him.

[00:19:17] Speaker 01:
Oh, I understand that.

[00:19:18] Speaker 01:
But the ruling seemed to be the danger here was that a drunk person was going to get in the car and hurt somebody, however they were going to hurt somebody.

[00:19:27] Speaker 03:
They address specifically ars no or cut all of those suicide superseding cause cases and in doing so specifically said well wait a minute modern superseding cause law in Washington says that you have to have a situation that's completely different and disparate from

[00:19:44] Speaker 03:
the initial negligence it has to be something that's extraordinary and unexpected which is not what you have in this case and why we believe that the superseding cause notion of Webstat as a matter of law is just flatly wrong given existing Washington law now in superseding cause.

[00:20:01] Speaker 01:
Would you be that at what point does Amazon or somebody like that get on notice of this or to the point that they're negligent?

[00:20:10] Speaker 01:
I mean in other words you have this you know huge

[00:20:13] Speaker 01:
retailer, online or otherwise, and then a pattern develops of people buying this product and committing suicide.

[00:20:23] Speaker 01:
But presumably they're charged with that duty at some point, once it becomes a pattern.

[00:20:33] Speaker 03:
Here, Your Honor, you have a lot of things.

[00:20:35] Speaker 03:
You have in 2018, some of the families reaching out.

[00:20:38] Speaker 01:
But you would agree that it has to be, not on day one.

[00:20:41] Speaker 03:
Not on day one.

[00:20:42] Speaker 03:
They have to have notice.

[00:20:43] Speaker 03:
But they have notice in this case.

[00:20:45] Speaker 03:
They have notice from the families back in 2018.

[00:20:47] Speaker 03:
They have the fact that suicides are being.

[00:20:50] Speaker 05:
I mean, I think that's what we're getting to is what would notice be.

[00:20:53] Speaker 05:
It can't just be, hey, my son used this and committed suicide.

[00:20:57] Speaker 05:
and then they just take the product out.

[00:20:59] Speaker 05:
I mean, there has to be something more.

[00:21:01] Speaker 03:
There is here, though.

[00:21:03] Speaker 05:
I know.

[00:21:04] Speaker 03:
I think we're looking... No, you're looking at the policy that you have to... Where do you draw the line?

[00:21:09] Speaker 03:
You have to have notice.

[00:21:11] Speaker 03:
One incident, probably not, but here you have multiple instances.

[00:21:15] Speaker 03:
You have the kids, the multiple instances of kids committing suicide.

[00:21:20] Speaker 03:
You have a letter from members of Congress

[00:21:22] Speaker 03:
You have a New York Times investigation.

[00:21:25] Speaker 03:
You have competitors taking the product off the market.

[00:21:28] Speaker 00:
So your point is, wherever that line might be, we're well past it.

[00:21:31] Speaker 03:
We're way past it.

[00:21:32] Speaker 00:
So we don't need to draw it.

[00:21:33] Speaker 00:
It's wherever it is, we're past it.

[00:21:35] Speaker 03:
It's way in the rear-view mirror in this case.

[00:21:37] Speaker 03:
And foreign countries banning it, restricting its access, and all of the rest.

[00:21:42] Speaker 05:
OK.

[00:21:42] Speaker 03:
Thank you.

[00:21:43] Speaker 05:
Thank you, Your Honor.

[00:21:44] Speaker 05:
I'll give you a minute or two for rebuttal.

[00:21:46] Speaker 05:
We'll hear from Amazon.

[00:21:53] Speaker 02:
Thank you, Judge Nelson.

[00:21:55] Speaker 02:
Greg Miller, Perkins-Cooey, LLP on behalf of defendant Amazon.

[00:22:00] Speaker 02:
The Scott decision does not undermine Judge Robart's decision in McCarthy.

[00:22:05] Speaker 02:
It takes issue.

[00:22:05] Speaker 02:
It does.

[00:22:06] Speaker 02:
It takes issue with one component.

[00:22:09] Speaker 01:
It's completely inconsistent with his main point.

[00:22:11] Speaker 02:
Well, no.

[00:22:12] Speaker 02:
But what they say is we disagree with the defect point.

[00:22:15] Speaker 02:
But two other components, the warning and the proximate cause rulings of his opinion, apply here.

[00:22:24] Speaker 02:
And we believe that they're correct.

[00:22:25] Speaker 02:
And we believe that they support our conclusion that there is no viable theory of liability under Washington law on any hypothetical facts that could impose liability on Amazon in this situation.

[00:22:37] Speaker 00:
Could we wait for the Washington Supreme Court, see what it wants to do with this case?

[00:22:41] Speaker 02:
I think that's within your discretion to do so, certainly.

[00:22:51] Speaker 02:
I think you're safe going ahead and going to start writing the opinion.

[00:22:56] Speaker 02:
Safe because you're confident the Washington Supreme Court's not going to... I would say it's more likely than not that they're going to deny review here, based on statistically how the review process shakes up.

[00:23:05] Speaker 05:
What about what we just heard that there's this commission?

[00:23:08] Speaker 02:
There's two inside baseball.

[00:23:09] Speaker 02:
Well, I don't want to take you into all the... Well, I'm happy to take you into all the weeds of Washington procedure.

[00:23:14] Speaker 02:
His opinion, the commissioner's, was in regards to whether or not

[00:23:18] Speaker 02:
Division 1 should have granted review for extraordinary error.

[00:23:25] Speaker 02:
Basically, should you have granted a mandamus petition to review this 12b6?

[00:23:29] Speaker 02:
And he said, I think you got that wrong.

[00:23:30] Speaker 02:
And that's how I think you have to read Commissioner Johnston's order that he writes.

[00:23:35] Speaker 02:
It's in the context of this sort of extraordinary review and whether that was warranted

[00:23:39] Speaker 02:
particularly within the context of the 12b6 standard that Washington has, which is very different than the federal courts.

[00:23:45] Speaker 05:
But I think you would have to agree that this case is outside.

[00:23:49] Speaker 05:
Whatever the statistics are, say it's 5%, 10% of review grant, this case is outside of that.

[00:23:57] Speaker 05:
There are factors, whether this is one of them.

[00:24:00] Speaker 05:
But even the opinion itself sort of lends itself to saying, hey, we need to take a close look at this.

[00:24:06] Speaker 05:
It doesn't mean they're going to grant, obviously.

[00:24:08] Speaker 02:
It has some signals on the proximate cause, but there are two separate bases for their ruling.

[00:24:14] Speaker 02:
The first is their determination that there is no duty to account for intentional misuse of a product.

[00:24:18] Speaker 01:
The duty and the proximate cause here are completely overlapping, as I understand it, because the suicide decisions seem to be as to both.

[00:24:29] Speaker 01:
And if you would subtract

[00:24:34] Speaker 01:
out or discredit some per se rule that there is no duty with regard to suicide, there is no proximate cause.

[00:24:43] Speaker 01:
If there is a suicide, they seem to be awfully close to each other.

[00:24:46] Speaker 01:
So I don't see the difference really.

[00:24:48] Speaker 02:
You would still need to have a theory of duty.

[00:24:51] Speaker 02:
And they went and they analyzed what is the closest analog here, which is negligent entrustment.

[00:24:56] Speaker 02:
And they said there are two key components missing here that are necessary.

[00:25:00] Speaker 01:
Why is there an entrustment?

[00:25:01] Speaker 01:
Why can't it simply be?

[00:25:03] Speaker 01:
the foreseeability of the danger.

[00:25:06] Speaker 01:
And the fact that you're selling something that's dangerous.

[00:25:11] Speaker 02:
Because there are decades of Washington's Supreme Court and Court of Appeals precedent saying mere foreseeability that people will be injured is not a basis for imposing liability, either in strict liability or in negligence.

[00:25:23] Speaker 02:
I think kind of it has some historical kind.

[00:25:26] Speaker 01:
Well, perhaps I don't have the lingo right, but selling something that you know

[00:25:33] Speaker 01:
doesn't have any legitimate use for the purpose in the circumstances that you're selling it, and that is dangerous to the point of death, is not itself negligent?

[00:25:48] Speaker 01:
Or couldn't itself be negligent?

[00:25:49] Speaker 02:
Certainly, certainly not.

[00:25:51] Speaker 01:
You couldn't have a duty not to do that, if you want to use the duty language.

[00:25:53] Speaker 01:
I've always found from torts one on that the whole duty concept is extremely mushy.

[00:25:59] Speaker 02:
Well, if it involves an intentional misuse of the product, there's certainly no duty.

[00:26:03] Speaker 02:
That is not in bond.

[00:26:05] Speaker 01:
But to get to your- The whole problem here was that it wasn't an intentional misuse, that there was no use.

[00:26:11] Speaker 01:
I mean, there were uses, but there were not uses in the non-commercial, non-industrial situation.

[00:26:20] Speaker 02:
No, well, there certainly are.

[00:26:23] Speaker 02:
To go back to your question, can you buy this stuff off the shelf?

[00:26:25] Speaker 02:
Appellate counsel is not acting with candor in this court.

[00:26:28] Speaker 02:
There is another lawsuit brought by the lead counsel at the trial level that brought this lawsuit, Jenks, where the brand of sodium nitrate at issue is called Procure.

[00:26:40] Speaker 02:
It's used to cure salmon and steelhead fish eggs, uses fish bait.

[00:26:44] Speaker 00:
And what concentrations is it sold?

[00:26:46] Speaker 02:
It's a high purity sodium nitrite as well.

[00:26:48] Speaker 02:
It's, I believe, 96%.

[00:26:51] Speaker 02:
I saw it on the shelves of the Outdoor Emporium on 4th Avenue in Seattle when I was walking around with my son on Father's Day last year.

[00:26:58] Speaker 02:
And an associate from my firm went down to their other store in Kent, I believe, and purchased it.

[00:27:04] Speaker 02:
off the shelf.

[00:27:05] Speaker 02:
So there are hobbyist users.

[00:27:07] Speaker 00:
I understand we're well outside the record, but what did it say?

[00:27:09] Speaker 00:
It said dilute it.

[00:27:11] Speaker 00:
Not for human consumption.

[00:27:14] Speaker 00:
But let me ask you this.

[00:27:16] Speaker 00:
It's pretty clear from the things that I saw in the record that Amazon not only had the product, but in the little bar below it had all the things that would make the product.

[00:27:27] Speaker 00:
Here's how you commit suicide.

[00:27:29] Speaker 00:
This product plus these things.

[00:27:30] Speaker 00:
That's what Amazon was doing, correct?

[00:27:33] Speaker 00:
That is a yes or no question.

[00:27:36] Speaker 00:
Is that what Amazon was doing, correct?

[00:27:37] Speaker 02:
No, they were not recommending suicide kits.

[00:27:39] Speaker 00:
I didn't say that.

[00:27:40] Speaker 00:
Yeah.

[00:27:40] Speaker 00:
What they said, they had a picture of the product, and then below that, they had other products that would actually facilitate this as a suicide agent, correct?

[00:27:48] Speaker 00:
Yes.

[00:27:49] Speaker 02:
With a qualification, if you look at the screenshot that they have, I think it says like five out of seven.

[00:27:54] Speaker 02:
It's clear that someone had to click through five times to find that particular recommendation from the algorithm.

[00:28:00] Speaker 02:
But more importantly, for purposes of this case, Christine Johnson drove to CVS after sneaking out at night and bought the Tagamet, the acid reducer, separately from a different... But it was the Tagamet that also showed up right on the website, right below this product.

[00:28:15] Speaker 02:
Yes, and also recommended by the...

[00:28:18] Speaker 05:
the sanctioned suicide website get recommended I mean you it's an algorithm right there is not it's not like Amazon's doing I mean Amazon's not facilitating that but they're not apparently taking steps to

[00:28:34] Speaker 05:
correct the algorithm and say, hey, this might not be the best product we should put out there.

[00:28:37] Speaker 02:
Going outside of the record, I could tell you that Amazon has taken steps to remove the peaceful pill handbook as something that is recommended in conjunction with sodium nitrate.

[00:28:47] Speaker 01:
But what the algorithm was showing, as I understand it, in the Amazon context, is something like people who buy this often frequently buy that.

[00:28:56] Speaker 01:
And I guess that's done just statistically.

[00:28:59] Speaker 02:
So there are two different kind of record.

[00:29:04] Speaker 02:
custom widget windows.

[00:29:06] Speaker 02:
One is customers who bought this also bought or frequently bought together.

[00:29:10] Speaker 02:
And then there is also customers who viewed this item also viewed.

[00:29:15] Speaker 02:
And the handbook itself, I am not aware, again, going outside of the record, of any instance where there has been a purchase the peaceful pill handbook associated with the use of sodium nitrite on Amazon for suicide.

[00:29:30] Speaker 02:
You asked, I think it might have been Judge Burris on about the differences between this case and the other case for purposes of certification.

[00:29:39] Speaker 01:
The Washington Supreme Court's resolution one way or another that is either hearing the case or not hearing the case is totally dispositive here.

[00:29:53] Speaker 02:
So it would be if they

[00:29:55] Speaker 02:
deny review or gray review and reaffirm the proximate cause rules applicability here, then it's completely and totally dispositive of all the claims.

[00:30:05] Speaker 02:
But also if they just affirm the 1B1 no duty holding of the court or if it stays in place if they don't review it or if they affirm it, that gets you there as well because there is no recognized duty at common law regarding the need to warn or otherwise restrict the sale of products to account.

[00:30:23] Speaker 01:
There's no difference between the two cases.

[00:30:27] Speaker 02:
No, there's no legally relevant distinction, particularly given the doctrine of hypothetical facts and how Washington courts make their determination that a 12b6 motion should be granted.

[00:30:36] Speaker 02:
They say, like, even if there are facts that are not alleged, that a judge happens to think up on appeal, like from the bench, if we can think of something that might have made it a viable claim, we deny the 12b6 motion.

[00:30:51] Speaker 02:
an incredibly high bar that I can cater to tell you as a member of the defense bar makes it very difficult to win on 12b6 motions.

[00:30:57] Speaker 02:
So at that point, a ruling either from the Court of Appeals or from the Supreme Court saying that there is no legal claim is going to be dispositive in this case as well.

[00:31:10] Speaker 02:
the West's decision from the Supreme Court from 1938 that this court applied in Herrera, which you Judge Berzon and you Judge Nelson joined.

[00:31:21] Speaker 02:
When a Supreme Court declines review of an intermediate court decision, that increases the deference owed, and it is the functional equivalent of refusing certification from this court.

[00:31:32] Speaker 02:
It would be completely improper for this court to go ahead and certify right now when there's going to be a process

[00:31:40] Speaker 02:
in the normal course of litigation.

[00:31:43] Speaker 02:
We should know in four months.

[00:31:44] Speaker 02:
I would suspect so.

[00:31:45] Speaker 00:
The one thing I want to... You say it's improper.

[00:31:48] Speaker 00:
Why would it be improper?

[00:31:50] Speaker 00:
It might be unnecessary, but it seems to me that if we were to certify to the court, the Washington Supreme Court, it would be to say, you know, this is really important.

[00:32:00] Speaker 00:
It's not only coming to you, it's coming to us too.

[00:32:02] Speaker 00:
This is a recurring question.

[00:32:04] Speaker 00:
So why is it improper for us to certify?

[00:32:07] Speaker 02:
Because you would be burdening them with the additional question.

[00:32:10] Speaker 00:
We would be burdening them with the additional knowledge that here's another case which presents the exact same facts, and it's therefore all the more important that you take a look.

[00:32:18] Speaker 02:
So given that the Scott panel opinion spends ample time discussing the McCarthy opinion, this case is bound up in the consideration that the Washington Supreme Court would have.

[00:32:31] Speaker 01:
I expressly say, or even mention, I think, that the Washington case is on appeal.

[00:32:35] Speaker 01:
The McCarthy case is on appeal.

[00:32:38] Speaker 02:
No, they don't.

[00:32:39] Speaker 01:
It treats the Washington District Court opinion as dispositive for its own purposes and doesn't notice that we have an argument today.

[00:32:49] Speaker 00:
So I'm not at all convinced that we have improper for us to do it.

[00:32:52] Speaker 00:
We may or may not want to do it.

[00:32:54] Speaker 00:
That might be too.

[00:32:54] Speaker 00:
I think improper is too strong.

[00:32:56] Speaker 02:
Let me say in the spirit of comity and federalism.

[00:32:59] Speaker 05:
Your better point might be that it doesn't necessarily, it doesn't fit within our traditional use of our discretion.

[00:33:06] Speaker 02:
Yes, I would point you to judge.

[00:33:07] Speaker 02:
Which may or may not be true, but yeah.

[00:33:09] Speaker 02:
to Judge Berzon's concurrence in the Herrera case that we don't need to burden our state courts with an additional redundant request for them to consider an issue when they've just decided.

[00:33:21] Speaker 05:
Well, but this is a slightly, to be fair, this is a slightly different issue because there they had already denied it.

[00:33:29] Speaker 05:
Well, we waited and they denied it and then we said, well, then it doesn't make sense to certify it.

[00:33:33] Speaker 05:
I think as Judge Fletcher was pointing out,

[00:33:36] Speaker 05:
suggesting that, hey, we also have an interest.

[00:33:40] Speaker 05:
I mean, again, whether we should do it or not, it does seem like a different dynamic.

[00:33:44] Speaker 01:
Also, in terms of a burden on them, they're already going to be deciding whether they want to decide the case.

[00:33:49] Speaker 01:
So they're not going to have to do any work they don't have to do anyway.

[00:33:54] Speaker 02:
It would be an extra motion that they'd have to decide.

[00:33:59] Speaker 02:
For about five minutes.

[00:33:59] Speaker 02:
And the other problem is if they incorporate

[00:34:02] Speaker 02:
this case and then dealing with the 12b6 pleading standard and what facts are and aren't in this case and can be considered by them and juggling that in addition to the hypothetical fact standard.

[00:34:14] Speaker 05:
That would be up to them whether they want it.

[00:34:16] Speaker 01:
What do you mean by the hypothetical?

[00:34:18] Speaker 02:
That, to go back to what I said earlier, you know, we have Twombly and Eekball and Rule 8A, and the Washington courts have said we do not subscribe to that.

[00:34:28] Speaker 01:
If, when we're ruling on a 12b6 motion, we can consider any facts that are consistent with the complaint, even if they're not alleged in... Are you suggesting that even if the Washington Supreme Court decides to reverse the 12b6 equivalent there that we should, could still affirm?

[00:34:45] Speaker 02:
There would be the preservation issues here in regards to their legal position about the defect question, but given the questions of this court, I'm going to guess you would exercise your discretion to not affirm.

[00:34:59] Speaker 01:
I don't understand that point because the district court ruled on it, right?

[00:35:03] Speaker 01:
Yes.

[00:35:03] Speaker 01:
Our case law says clearly that if the district court rules on it, then it's reviewable and there's no preservation question.

[00:35:09] Speaker 02:
You have discretion to review it.

[00:35:11] Speaker 01:
No, no.

[00:35:11] Speaker 01:
It's stronger than that.

[00:35:13] Speaker 01:
When the district court rules on it, I mean, I have to find the case, but I know for sure.

[00:35:17] Speaker 01:
I mean, and it makes sense.

[00:35:19] Speaker 01:
I mean, well, if the district court rules on it, how can it not be reviewable?

[00:35:23] Speaker 02:
Like many things that aren't pressed below, even if they're passed upon.

[00:35:27] Speaker 01:
Well, the case is that if the district court rules on it, that is reviewable.

[00:35:29] Speaker 02:
I'll acknowledge there are cases going both ways saying that.

[00:35:32] Speaker 02:
I'm sorry?

[00:35:33] Speaker 02:
I apologize for stepping in.

[00:35:34] Speaker 02:
I will acknowledge there are cases going both ways on that.

[00:35:36] Speaker 01:
No, I don't believe you.

[00:35:37] Speaker 01:
And there are- Not on that question.

[00:35:38] Speaker 01:
Not on that exact question.

[00:35:39] Speaker 01:
If the district court rules on it, you rule it out.

[00:35:45] Speaker 05:
Okay.

[00:35:45] Speaker 05:
Depending on what happens with the, you know, whether the Supreme court takes it or not, would you agree?

[00:35:51] Speaker 05:
It sounds like you might also want some supplemental briefing other than just the 28 J letter to explain the implications.

[00:35:58] Speaker 02:
Certainly.

[00:36:00] Speaker 02:
And I think it would make sense kind of, we were handcuffed to really explain how much of an outlier

[00:36:07] Speaker 02:
this court would be if it recognized a duty here.

[00:36:11] Speaker 02:
Just look back through the briefs.

[00:36:13] Speaker 02:
They have not cited a single case from Washington adopting this kind of novel duty or any other state.

[00:36:19] Speaker 05:
There was no duty because it wasn't being used consistent with the uses?

[00:36:27] Speaker 05:
That's why?

[00:36:30] Speaker 05:
Basically, your position is the Court of Appeals got it wrong.

[00:36:34] Speaker 02:
No, Your Honor.

[00:36:36] Speaker 02:
At the beginning of their brief, they say there's no, quote,

[00:36:39] Speaker 02:
Washington law does not impose a duty on sellers to protect against intentional misuse of a product.

[00:36:45] Speaker 02:
And the Bond case is so on point on the general principle.

[00:36:50] Speaker 02:
There was a real move in the late 70s and early 80s to try and impose liability on manufacturers and distributors who were selling products that plaintiff attorneys were claiming were unreasonably dangerous by their nature, slingshots, air rifles, mini trail bikes in Bond.

[00:37:08] Speaker 02:
And the argument was, well, you're marketing this to children, you know they're going to use it in a dangerous manner, and so it's unsafe to sell them, period.

[00:37:17] Speaker 02:
And the vast majority of states, including Washington, rejected this theory because the core reasoning and bond, as they say,

[00:37:26] Speaker 02:
It is the legislature's job to impose restrictions on the sale of a product, or to say that categorically you can't sell to particular purchasers, or you can't sell particular products.

[00:37:39] Speaker 02:
And that is an issue for the legislature, which coincidentally, there are legislative solutions that have been adopted in some states, including.

[00:37:48] Speaker 00:
But that's the question in front of the court right now.

[00:37:50] Speaker 00:
What is the legislation now?

[00:37:52] Speaker 00:
What's it mean?

[00:37:52] Speaker 00:
So yes, it is a question for the legislature.

[00:37:56] Speaker 00:
And the question is, OK, what does the law, as it now exists, as passed by the legislature, what does it mean?

[00:38:03] Speaker 02:
I'm sorry.

[00:38:04] Speaker 02:
I'm not sure what law you're referring to, Judge Fletcher.

[00:38:07] Speaker 00:
The law at issue, the product liability law at issue in this case.

[00:38:10] Speaker 00:
That is to say, you're saying we look to the law of the legislature.

[00:38:13] Speaker 00:
I agree with you.

[00:38:15] Speaker 00:
What else is no?

[00:38:16] Speaker 02:
So I'm saying that if you're talking about departing from fundamental principles of product liability, the Washington Supreme Court in bond and then the court of appeals and not, which was a Saturday night specials case said these kinds of departures are for the legislature because it involves the balancing of competing interests.

[00:38:36] Speaker 02:
It involves complex issues.

[00:38:38] Speaker 05:
Question whether the legislature has departed from that here.

[00:38:42] Speaker 05:
in the Washington law.

[00:38:43] Speaker 05:
I mean, I know your position.

[00:38:44] Speaker 05:
Well, I assume your position is Washington law doesn't depart from that.

[00:38:48] Speaker 05:
But I don't think that's what your opposing position is.

[00:38:52] Speaker 05:
I don't know where where what the argument would be.

[00:38:56] Speaker 02:
Yeah, and you read the Scott decision, and they say, we're looking at our common law that could supply a duty here, and it doesn't apply.

[00:39:06] Speaker 02:
And then when you pivot back and you look at the preamble to the Washington Product Liability Act, which is an express codified statement of purpose, it says that their goal was to preserve the right of consumers to recover for injuries from, quote, unsafe products.

[00:39:21] Speaker 02:
This was part of an omnibus tort reform legislation that was meant to limit liability overall, to define the substantive liabilities of manufacturers and sellers, and to bring the temperature down on an insurance crisis that was affecting manufacturers and sellers in the state of Washington.

[00:39:40] Speaker 02:
And so they wanted to

[00:39:42] Speaker 02:
cabin liability and define it and to be recognizing novel duties 40 plus years after the statute was adopted would be fundamentally inconsistent with that statute.

[00:39:51] Speaker 02:
Even if you read negligence to just mean ordinary negligence, it has to mean negligence recognized at common law at the time the statute was passed.

[00:39:59] Speaker 02:
And that's how I read the Scott opinions 1B1 ruling on duty, where they don't say anything about being an intermediate court.

[00:40:08] Speaker 02:
They just say,

[00:40:09] Speaker 02:
There is no face-to-face interaction, and these individuals do not fit within the category of recognized incompetence.

[00:40:17] Speaker 02:
And just think about if you could say that it's negligent to sell a product to individuals because there might be some risk that they're misusing it.

[00:40:24] Speaker 02:
There's no principled way to draw a line of, well, if you know if one person is misusing it, is two enough?

[00:40:29] Speaker 02:
Is three?

[00:40:30] Speaker 02:
No, that's why the Court of Appeals had no problem with saying, well, you know that individuals were misusing Saturday Night Specials.

[00:40:37] Speaker 00:
they're not misusing it in one sense they're using it exactly as they intend to use it and exactly as is evident from the website this is a permissible use this is I mean that's what it's being sold for why do you say it's misuse well

[00:40:53] Speaker 02:
I would disagree with your categorization that that is what it is being sold for.

[00:40:58] Speaker 02:
There were widgets and other kind of functions of the website that might have reflected some purchasing patterns, but there is no allegation that Amazon was intentionally selling this product for suicide.

[00:41:12] Speaker 01:
It's being promoted for that use.

[00:41:15] Speaker 01:
intentionally or I mean an algorithm it doesn't come out of the sky.

[00:41:22] Speaker 01:
Amazon creates so it's an it is intentional it may not they may not have thought through a human being may not have gone and figured out how it was operating this particular instance but it's not an accident it is an intentional

[00:41:43] Speaker 02:
No, it's not.

[00:41:44] Speaker 02:
But to go back, the Scott panel recognized that that is a new feature, but noted that Washington law does not impose liability even with these new features.

[00:41:54] Speaker 02:
And it's not within the province of courts to be creating new duties with respect to that.

[00:42:00] Speaker 01:
But they mainly rely on this Webstat case.

[00:42:03] Speaker 01:
And this is why I say the two pieces fit, collapsed together, the duty piece and the approximate cost piece, because the main

[00:42:11] Speaker 01:
reliance in the duty is on a case that specifically seems to separate out suicide.

[00:42:18] Speaker 02:
It's the most on point decision with regard to suicide.

[00:42:21] Speaker 02:
To be sure, but you know, they they mentioned that the judge robot sites a score of cases dealing with obviously dangerous misuses of products.

[00:42:31] Speaker 02:
You know, many trail bikes back flips on trampolines a baby in a mobile Walker pulling hot water down on on itself that all the time there are foreseeable misuses that might occur, but when they're.

[00:42:43] Speaker 02:
obvious dangers, then there is no duty to warn against them or to restrict the products.

[00:42:48] Speaker 02:
And that gets back to also your question, Judge Berzahn, in the colloquy with the plaintiff's appellate counsel about proximate cause, is it still needs to be in the zone of danger that you have a duty with regard to.

[00:43:01] Speaker 02:
And manufacturers and sellers do not have a duty to account for obviously dangerous misuse of their products.

[00:43:08] Speaker 02:
And at that point, whether the obvious misuse comes from suicide or from something else, it's outside the scope of danger.

[00:43:15] Speaker 02:
So that kind of answers even if you take their question at face value about proximate cause, it's outside the scope.

[00:43:20] Speaker 02:
But more importantly, the ADGAR decision helps us because it tells you that ORCUT, ARSENAL, and WEBSET are still good law, but they apply to wrongful death suits.

[00:43:30] Speaker 02:
where suicide is involved.

[00:43:31] Speaker 02:
They don't apply to third party intervening conduct.

[00:43:34] Speaker 02:
It helps us and confirms that they're still the law of the land.

[00:43:37] Speaker 02:
And finally, I would point you to, in our response brief, I believe page 27, we cite to the Simonetta decision by the Washington Supreme Court.

[00:43:45] Speaker 02:
And they say that we attempt to, and court should, align the WPLA with the pre-existing limitations of liability recognized a common law.

[00:43:54] Speaker 02:
And both the limitations on negligent entrustment and on suicide

[00:44:00] Speaker 02:
were well recognized and established.

[00:44:02] Speaker 02:
They are incorporated into those elements of the statute.

[00:44:05] Speaker 02:
And a court cannot post hoc effectively amend the statute by changing those rules 40 years after the statute was passed.

[00:44:12] Speaker 02:
If the court has any other questions, I'm happy to answer them.

[00:44:16] Speaker 05:
Thank you for your time.

[00:44:17] Speaker 05:
Thank you.

[00:44:18] Speaker 05:
We'll give you two minutes for rebuttal.

[00:44:21] Speaker 03:
Thank you, Your Honor.

[00:44:22] Speaker 03:
I'm fascinated by counsel's perception of Washington Product Liability Act.

[00:44:27] Speaker 03:
It's Mr. Miller on the WPLA, contrary to the expressed language of the statute, the legislative history of the statute, and the case law in Washington.

[00:44:35] Speaker 03:
Let me point out, first of all, with respect to his insistence on misuse, the Washington legislature addressed that in the statute.

[00:44:43] Speaker 03:
It defined fault to include misuse.

[00:44:45] Speaker 03:
And it then said comparative fault is available as an argument for parties.

[00:44:51] Speaker 03:
But comparative fault does not bar recovery.

[00:44:55] Speaker 03:
So the argument that misuse will somehow bar recovery is forestalled by the specific language of the statute.

[00:45:02] Speaker 03:
Now, counsel has also said, misrepresenting what the Scott court held, that there's no duty in this case.

[00:45:09] Speaker 03:
The Scott court held that there was a restatement 281 duty.

[00:45:13] Speaker 03:
That's at star 13 of the court's opinion.

[00:45:15] Speaker 03:
It specifically holds duty exists.

[00:45:19] Speaker 03:
Then the question was whether proximate cause was present in the case.

[00:45:23] Speaker 03:
And that's why we come back to the suicide effect issue.

[00:45:28] Speaker 01:
Here's what the court... The section that starts on page 17 of the opinion, duty as seller, does conclude that there wasn't a duty.

[00:45:37] Speaker 03:
It said that there was a no duty to prevent suicide, but it comes back to the proposition that there's a duty at star 13, quote, Amazon has a duty to purchasers under a statement second of tort section 281, which has been adopted and relied on by our Supreme Court in multiple cases.

[00:45:54] Speaker 03:
So when counsel stands up and says, oh, this is an unforeseen kind of novel extension of the law, that's just baloney.

[00:46:01] Speaker 03:
The Scott Court itself said 281 was a basis for duty in the case.

[00:46:06] Speaker 03:
And not to be lost sight of, there is a distinction between

[00:46:09] Speaker 03:
The Webstad case where the guy stood aside and didn't do anything while the young woman committed suicide, and the circumstances here where there's a facilitation of the suicide looking specifically to the statute that we've quoted to the court, RCW 9A 36060.

[00:46:26] Speaker 03:
Now, there are a couple of other points I wanted to make with respect to- Counsel, you better make them very succinctly.

[00:46:31] Speaker 03:
I'll make them very quickly, Your Honor.

[00:46:34] Speaker 03:
There are 10 cases involving 23 other families.

[00:46:37] Speaker 03:
This is a case in which the Supreme Court is likely to grant review.

[00:46:41] Speaker 03:
Commissioner Johnston indicated that as much in his ruling.

[00:46:46] Speaker 03:
And I would note as well that there's an agreement between Amazon and those plaintiffs

[00:46:51] Speaker 03:
to stay proceedings in those cases pending the disposition of the Scott case by the Supreme Court of Washington.

[00:46:57] Speaker 01:
So the note.

[00:46:57] Speaker 01:
But what about whether there's any point to us certifying the case now?

[00:47:01] Speaker 03:
Well, I think the court could certify it and it would basically encourage the Washington Supreme Court to address the issue.

[00:47:08] Speaker 01:
I assume you're going to tell the Washington Supreme Court in your petition that this case is pending and that it was argued and that we're.

[00:47:16] Speaker 03:
We will.

[00:47:16] Speaker 01:
And if we end up holding it for Scott, that is being held.

[00:47:21] Speaker 03:
It would be useful for the court to understand that this is an issue that has consequence.

[00:47:26] Speaker 03:
And apart from what Commissioner- But you're gonna tell them that.

[00:47:28] Speaker 03:
We're gonna tell them that, for sure.

[00:47:30] Speaker 03:
But I think it would be helpful if this court weighed in as well.

[00:47:33] Speaker 01:
Told them that too?

[00:47:34] Speaker 03:
Thank you.

[00:47:35] Speaker 03:
Yes.

[00:47:36] Speaker 05:
All right, thank you.

[00:47:37] Speaker 05:
Thank you to both counsel for your arguments in the case.

[00:47:39] Speaker 05:
The case is now submitted.

[00:47:41] Speaker 05:
The court's gonna take a brief recess before our final argument today.