We are still on watch for a current pending Pennsylvania Supreme Court decision that could impact Amazon’s liability in this case. In Oberdorf v. Amazon.com Inc., 930 F.3d 136, 150 (3d Cir.), reh’g en banc granted, opinion vacated, 936 F.3d 182 (3d Cir. 2019), the plaintiff filed a strict products liability action against Amazon alleging failure to warn and design defect from an allegedly faulty retractable dog collar purchased from a third-party vender on Amazon. In Pennsylvania, the Restatement (Second) of Torts, §402A strict products liability actions extend only to “sellers” of products. The court reasoned that determining whether an entity is a “seller” requires the consideration of multiple factors analyzing the level of control an entity has, such as warranty, title, control sufficient to inspect, economic benefit, and control over design and manufacture. The Third Circuit held that Amazon did meet the criteria of a “seller,” but this holding was nullified when the Third Circuit agreed to hear the case en banc. After the Third Circuit expressed uncertainty over what test to utilize in determining whether Amazon is a “seller,” the Pennsylvania Supreme Court agreed in 2020 to address the following issue: “Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?” Oberdorf v. Amazon.com, Inc., 661 Pa. 535, 237 A.3d 394 (2020).

While the Petition for Certification of Law was Granted in 2020, we are still awaiting a schedule for oral argument. However, this could have an immense impact on products liability cases; more specifically on whether Amazon may be exposed to liability for products sold by third parties in Pennsylvania and other jurisdictions. If Amazon is not considered to be a “seller,” liability will fall heavier on sellers, and even sellers who stand in the shoes of a foreign manufacturer in litigation.

Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions.