Deputy's lawsuit over burger-spitting heads to state Supreme Court

By Laura McVicker, Columbian staff writer

Published:

 

Update

Previously: A Clark County sheriff’s deputy appealed a federal judge’s decision to dismiss a lawsuit against Burger King.

What’s new: The 9th U.S. Circuit Court of Appeals sent the case to the Washington Supreme Court for clarification on product liability law.

What’s next: The Supreme Court will clarify a state law, allowing the Court of Appeals to decide on the deputy’s case.

A burger-spitting lawsuit from Clark County may give new meaning to the term “emotional distress.”

The case of a Clark County sheriff’s deputy who in 2010 sued Burger King because an employee spit in his Whopper is heading to the Washington Supreme Court.

The issue: Whether the state’s Product Liability Act allows a plaintiff to collect damages for emotional distress without suffering any physical injuries.

Deputy Ed Bylsma’s lawsuit, filed in U.S. District Court in Portland, was dismissed in late 2010. Bylsma appealed to the 9th U.S. Circuit Court of Appeals.

Last week, the panel of federal judges asked the Washington Supreme Court to take a look at the case to resolve the “emotional distress” question. The appellate court said the state’s product liability law is unclear in whether plaintiffs can sue even if they aren’t physically injured.

The act is defined by causing harm by the manufacture or preparation of a product, but doesn’t outright define “harm,“ the appeals court said.

“We have not been able to find any product liability case allowing emotional distress damages caused by a product in the absence of physical injury,” according to the appeals courts’ written request.

The Court of Appeals decision is on hold until the Supreme Court addresses the question.

Bylsma received the contaminated burger at the drive-through of the restaurant at 5513 N.E. Gher Road on March 24, 2009. He was in full uniform and driving his patrol vehicle.

Bylsma said he inspected his Whopper because he could tell something was amiss when the employee avoided eye contact while handing him the food. He peeled away the patty and discovered a thick glob of saliva laced with phlegm, according to the lawsuit.

Fellow sheriff’s deputies responded and collected evidence from the burger. Later testing at a crime lab showed the saliva matched that of former employee Gary Herb.

Herb was arrested and received three months in jail after pleading guilty last year to third-degree assault against an officer.

Both Herb and another employee were terminated after the incident.

Shortly after the lawsuit was filed, seeking unspecified damages, a spokesman said Burger King had zero tolerance for the former employees’ actions.

Bylsma said that he now suffers “ongoing emotional trauma from the incident, including vomiting, nausea, food anxiety and sleeplessness and has sought treatment by a mental health professional,” according to the appeals court.

The federal appellate court said the Washington Supreme Court’s decision could set a precedent.

“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 9th Circuit said.

Laura McVicker: www.twitter.com/col_courts; www.facebook.com/reportermcvicker; laura.mcvicker@columbian.com; 360-735-4516.