Deputy can sue over phlegm burger, high court says

Supreme Court ruling aids his case against Burger King




Clark County Sheriff’s Deputy Ed Bylsma, who was served a phlegm-laced burger in 2009 at a Burger King restaurant but didn’t eat it, got a favorable ruling Thursday from the Washington Supreme Court.

The state’s high court had been asked by the 9th U.S. Circuit Court of Appeals to determine whether the Washington Product Liability Act allows a consumer to sue for emotional distress absent physical injury.

In a 6-3 ruling, the court said yes.

Bylsma, 51, of Battle Ground, first filed a lawsuit in U.S. District Court in Portland seeking an unspecified amount of money, but it was dismissed. He appealed, and Thursday’s ruling means his case can go forward in the 9th U.S. Circuit Court of Appeals.

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 uniform and driving his patrol vehicle.

According to the lawsuit, Bylsma said he inspected his Whopper because he thought something was amiss when the employee avoided eye contact while handing him the food. He discovered a thick glob of saliva laced with phlegm.

Later testing matched the saliva to an employee, Gary Herb, who subsequently pleaded guilty to third-degree assault against an officer and was sentenced to three months in the Clark County Jail.

Herb and a co-worker were fired for the incident.

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

In Thursday’s majority opinion, Justice Steven C. Gonzalez wrote that “common sense tells us that food consumption is a personal matter and contaminated food is closely associated with disgust and other kinds of emotional turmoil. Thus, when a food manufacturer serves a contaminated food product, it is well within the scope of foreseeable harmful consequences that the individual served will suffer emotional distress. The courts of this state recognize damage for such emotional distress, and thus, such damages, if proved, are recoverable under the WPLA.”

Gonzalez was joined by Justices Charles W. Johnson, Mary E. Fairhurst, Debra L. Stephens, Charles K. Wiggins and Justice Pro Tem Tom Chambers.

In a minority opinion, Justice James Johnson wrote the product liability act “does not permit relief for emotional distress damages, in the absence of physical injury, caused to a purchaser who is served but does not consume a contaminated food product.”

Emotional distress damages should be for a plaintiff “who experiences conditions that are comparable to witnessing a loved one’s accidental death or serious injury,” Johnson wrote. “The sight of a contaminated burger comes nowhere near this threshold.”

Johnson was joined by Chief Justice Barbara Madsen and Justice Susan Owens.

Stephanie Rice: 360-735-4508 or