PHILADELPHIA – For the second time, social media app TikTok is requesting a stay of survival and wrongful death litigation brought against it by the mother of a 10-year-old child who died in December due to attempting a “Blackout Challenge”.
Tawainna Anderson (individually and as Administratrix of the Estate of Nylah Anderson, a deceased minor) of Chester first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 12 versus TikTok, Inc. of Culver City, Calif. and its parent company ByteDance, Inc. of Mountain View, Calif.
The suit said that Nylah Anderson, a 10-year-old who could speak three languages, enjoyed dancing to videos she saw on TikTok and shared the platform’s video content. In the beginning of December, the suit continued that Nylah saw the “Blackout Challenge," which dared people to choke themselves until they nearly rendered themselves unconscious, in her personalized feed of recommended TikTok content.
“The TikTok defendants’ app and algorithm pushed exceedingly and unacceptably dangerous challenges and videos to Nylah’s ‘For You Page’ (FYP), thus encouraging her to engage and participate in the challenges. Only days before Nylah attempted the Blackout Challenge that killed her, the TikTok defendants’ algorithm presented Nylah with a similar choking challenge through her FYP, which entailed placing plastic wrap around her neck and holding her breath until a euphoric effect was achieved. The following day, the TikTok defendants’ algorithm thrust the Blackout Challenge onto Nylah’s FYP, encouraging Nylah to participate,” the suit said.
“The particular Blackout Challenge video that the TikTok defendants’ algorithm showed Nylah prompted Nylah to hang a purse from a hanger in her closet and position her head between the bag and shoulder strap and then hang herself until blacking out. On Dec. 7, 2021, Nylah attempted the Blackout Challenge she had seen on her FYP in her mother’s bedroom closet while her mother was downstairs. Tragically, after hanging herself with the purse as the video the TikTok defendants put on her FYP showed, Nylah was unable to free herself. Nylah endured hellacious suffering as she struggled and fought for breath and slowly asphyxiated until near the point of death.”
The plaintiff found her daughter unconscious and hanging in her bedroom closet by her neck from the purse strap, and immediately began performing emergency CPR on her daughter, in an attempt to resuscitate her while emergency responders were en route to her home.
“Three deep ligature marks were found on Nylah’s neck, suggesting that she struggled greatly to free herself from the perilous and terrifying position but was unable to do so. Nylah was emergently transported to Nemours DuPont Hospital in Delaware with the hope that she could survive the extreme injuries she sustained in this horrific event. After spending several days in the pediatric intensive care unit, all hope for Nylah was extinguished and on Dec. 12, 2021, 10-year-old Nylah Anderson succumbed to her injuries and died. This tragedy and the unimaginable suffering endured by plaintiff and Nylah’s family was entirely preventable had the TikTok defendants not ignored the health and safety of its users, particularly the children using their product, in an effort to rake in greater profits,” the suit stated.
“The TikTok defendants’ intentionally manipulative app and algorithm thrust an unacceptably dangerous video that defendants knew to be circulating its platform in front of an impressionable 10-year-old girl. As a direct result of the TikTok defendants’ corrosive marketing practices, Nylah attempted the dangerous challenge and died as a result. As a direct and proximate result of the defendants’ carelessness, negligence, gross negligence, recklessness, willful and wanton conduct, strict liability, failure to warn and defective design, Nylah suffered serious, severe, disabling injuries including, but not limited to, her death resulting from asphyxiation by strangulation.”
The suit also mentioned 22 other dangerous challenges it claims have trended on TikTok, including the “Fire Mirror Challenge,” which encourages viewers to spray a flammable liquid on a mirror and then set it on fire; the “Hot Water Challenge” which involves pouring boiling water on someone else and the “Fire Challenge”, encouraging users to light themselves on fire.
According to the plaintiff, TikTok influences the behavior of its users, especially children, to maximize profits and create addiction to the social media app, while discounting responsibility for its users’ safety, once again with a focus on children.
Counsel for TikTok motioned to dismiss the complaint on July 18, arguing that the corporation is not at-home in Pennsylvania and thus isn’t subject to jurisdiction, and that the state-law claims contained in the complaint are barred by federal law.
“First, this Court lacks personal jurisdiction over defendants. Neither defendant is ‘at home’ in Pennsylvania, nor have they taken any actions directed at Pennsylvania to ‘purposely avail’ themselves of Pennsylvania law in connection with plaintiff’s complaint. Second, Section 230 of the federal Communications Decency Act (CDA) bars plaintiff’s state-law claims,” TikTok’s answer said.
“Third, separate from Section 230 immunity, plaintiff cannot state a claim for any of the individual causes of action in the complaint because:
• TikTok is not a ‘product’ or a ‘seller’ subject to strict product liability (Count I);
• Defendants have no legal duty of care to protect against third-party depictions of dangerous activity that would give rise to a negligence claim (Count II);
• Defendants did not engage in any ‘unfair or deceptive’ conduct—and plaintiff does not otherwise state a claim – under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Count III) or the California Consumer Legal Remedies Act (Count IV); and
• Plaintiff’s derivative wrongful death (Count V) and survival (Count VI) claims – which both require the existence of an underlying tort – also fail. Because these legal defects cannot be cured by amendment, plaintiff’s complaint should be dismissed with prejudice.”
The plaintiff countered the dismissal motion with an Aug. 1 response, which found that third-party liability did not apply in this matter and, likewise, the CDA was not applicable.
“Plaintiff’s complaint is crystal clear: Defendants’ liability in this matter is based on their own independent conduct as designers, manufacturers, sellers and/or distributors of their dangerously defective products – TikTok and its algorithm – and their own independent acts of negligence. Despite this, defendants attempt to rewrite plaintiff’s complaint as seeking to hold defendants liable for the content created by third-parties,” the plaintiff’s response stated.
“Plaintiff does no such thing and defendants’ attempts are a transparent effort to shoehorn this case into the immunity provisions of Section 230 of the Communications Decency Act. The CDA is entirely inapplicable to plaintiff’s claims against defendants. In addition to the demonstrably incorrect argument that they are immune under Section 230 of the CDA, defendants’ motion also challenges this Court’s personal jurisdiction, argues that TikTok and its algorithm are not ‘products’ subject to strict product liability, and that defendants owed no duty to Nylah Anderson. Defendants are wrong on all fronts, and their motion to dismiss should be denied.”
In a jurisdictional sense, the plaintiff and her counsel also found that such standing was conferred upon TikTok when the decedent downloaded the app.
“There is no question that defendants purposefully availed themselves of Pennsylvania. Nylah and her mobile device through which she used TikTok were located in Chester, Pennsylvania. The moment TikTok was downloaded, defendants reached into Pennsylvania and entered into a contract with Nylah Anderson concerning her use of defendants’ ‘Platform’ and ‘related websites, services, applications, products and content’,” according to the response.
“Defendants’ purposeful availment of Pennsylvania is based on their systematic, targeted, and intentional actions by reaching into Pennsylvania to extract a huge amount of data from Nylah which defendants’ product ultimately used to deliver the Blackout Challenge directly to Nylah’s FYP on her phone in Pennsylvania.”
The plaintiff added that “courts across the country have routinely held that software, such as computer programs, apps, and algorithms, are ‘products’ that are subject to design defect claims, despite defendants’ contentions to the contrary.”
In a Sept. 9 letter, counsel for TikTok requested the Court to stay the case, depending on a Sept. 29 decision to be reached by the Judicial Panel on Multidistrict Litigation (JPML), as to a pending transfer motion which would directly include and impact it.
The forthcoming JPML decision would also be inclusive of dozens of other “social media adolescent addiction/personal injury” lawsuits involving “various online communications platforms, including TikTok.”
“At that time, the JPML will determine whether centralization is appropriate and, if so, the scope of common issues for any MDL given the wide range of cases and injuries asserted to date, which will have direct bearing on whether Anderson is properly within that scope. Indeed, plaintiff’s counsel, Mr. Jeffrey Goodman, has filed a notice of presentation of oral argument asking to be heard at the hearing and therein proposed the Northern District of Illinois as plaintiff’s preferred transferee district should the JPML order centralization,” according to the letter.
“First, judicial economy is promoted by a stay because this Court is currently faced with a number of issues that an MDL court would also need to address. For instance, if an MDL is created, the MDL court will have to address the applicability of immunity under the Communications Decency Act or whether platforms are tangible ‘products’ for strict-products liability law, the same issues raised in TikTok’s pending motion to dismiss. An MDL court will also have to address the appropriate scope of discovery. Second, there is no harm to the parties in a brief stay. The instant action is in its early stages – an initial pre-trial conference has not yet been set, neither a discovery schedule nor trial date have been set, and TikTok’s motion to dismiss, which would be dispositive of all claims, is still pending. Moreover, stays have already been entered in other actions across the country that are the subject of the MDL transfer motion.”
However, U.S. District Court for the Eastern District of Pennsylvania Judge Paul S. Diamond rejected the motion in a Sept. 12 order.
UPDATE
In a contrasting turn of events, on Oct. 6, the JPML ordered the transfer of certain social media products liability actions involving TikTok, Meta, Snap and other platforms to MDL No. 3047 in the U.S. District Court for the Northern District of California.
This led TikTok’s counsel to renew its motion to stay the instant case on Oct. 7, pending transfer to the MDL in the question.
“Here, plaintiff cannot dispute that her complaint contains more than 20 allegations that TikTok is addictive – and expressly seeks to impose liability on that theory. Plaintiff’s product-liability claims are the same as asserted by the actions in the MDL. And TikTok’s pending motion to dismiss raises the same threshold defenses – including federal immunity under the Communications Decency Act and why apps like TikTok are not tangible ‘products’ – which will be decided in the MDL and about which the JPML wishes to ‘prevent inconsistent pretrial rulings, including with respect to motions to dismiss,” the motion said.
“Thus, the very commonalities and efficiencies intended by the JPML’s transfer order strongly support including this matter in the MDL and staying these proceedings in the meanwhile. A stay would permit the JPML’s established conditional transfer order process to occur, will serve the interests of judicial economy, and will result in no prejudice. Conversely, permitting continued litigation in this matter would result in substantial prejudice to TikTok (including duplicative or conflicting discovery and rulings), potentially waste this Court’s resources, and certainly undermine the orderly MDL process.”
For counts of strict products liability, negligence, violation of the Unfair Trade Practices and Consumer Protection Law, violation of the California Consumer Legal Remedies Act, wrongful death and survival, the plaintiff is seeking, jointly and severally, compensatory damages in an amount greater than the jurisdictional threshold plus costs of suit, severally as to each defendant for punitive damages in an amount sufficient to punish it and encourage it and others from similar conduct, for delay damages, reasonable attorney’s fees, and for such further relief as is just and appropriate under the circumstances.
The plaintiff is represented by Robert J. Mongeluzzi, Jeffrey P. Goodman, Samuel B. Dordick and Rayna McCarthy of Saltz Mongeluzzi & Bendesky in Philadelphia and Shavertown.
The defendants are represented by Joseph E. O’Neil and Katherine A. Wang of Campbell Conroy & O’Neil in Berwyn, plus Albert Giang, Geoffrey M. Drake and TaCara D. Harris of King & Spalding, in Los Angeles, Calif. and Atlanta, Ga.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-01849
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com