(CN) – The 9th Circuit on Thursday asked the Washington Supreme Court to help it resolve claims that a police officer developed food anxiety, nausea and sleeplessness after a Burger King employee spit on his Whopper.
Edward Bylsma, a deputy with the Clark County Sheriff’s Office in Washington, ordered the hamburger at a Burger King drive-through in Vancouver, Wa., while working the graveyard shift in 2009.
“After receiving his food, Byslma had an ‘uneasy feeling’ and pulled into another parking lot down the street,” the ruling states. “Before consuming the hamburger, he lifted the top bun and observed a ‘slimy, clear and white phlegm glob’ on the meat patty. He inserted his finger into the glob and then called for back-up.”
A subsequent DNA test showed that the spit belonged Gary Herb, a restaurant employee with a criminal record. Herb later pleaded guilty to felony assault for spitting on the burger and spent 90 days in jail.
Claiming that he “suffers ongoing emotional trauma from the incident, including vomiting, nausea, food anxiety, and sleeplessness, and has sought treatment by a mental health professional,” Bylsma sued Burger King and franchise owner Kaizen Restaurants in Oregon District Court, seeking damages for emotional distress.
After a magistrate judge recommended application of the Washington Product Liability Act, U.S. District Judge Malcolm Marsh dismissed Bylsma’s claims, finding that the act “does not allow for recovery of mental distress damages caused to a purchaser by a contaminated product in the absence of physical injury.”
A three-judge panel of the 9th Circuit refused to rule on Bylsma’s appeal without first consulting the Washington Supreme Court.
In an order published Wednesday, the panel certified the following question to the state’s high court:
“Does the Washington Product Liability Act permit relief for emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product?”
The appeals panel stayed the case pending the state high court’s answer.
“If clarified definitively by the Washington Supreme Court, the answer to the unsettled question of law presented by Bylsma’s appeal will have far-reaching effects on those involved in the manufacture and sale of products in Washington,” the order further states. “We are reluctant to create uncertainty in this area of the law by answering this question ourselves in the first instance.”