The United States Court of Appeals for the Ninth Circuit weighed in today in the case of a sheriff's deputy who claims severe emotional trauma after two ex-cons working the drive-thru at a Burger King added an extra ingredient during his late-night burger break.
Suspecting the fast-food employees were ex-cons, Washington state Deputy Edward J. Bylsma pulled off the road, removed the burger bun to his Whopper and found a "slimy" white glob of phlegm atop the meat patty.
Bylsma claims--hmmm--he inserted his finger into the glob and, horrified, called for backup and launched a crime-lab investigation.
DNA testings showed the glob originally belonged to the throat of ex-con/burger flipperGary Herb
. The sheriff's department arrested him for "felony assault." After a guilty plea, Herb won a 90-day jail term and was fired from his job.
But Bylsma wasn't satisfied. Even though he never took a bite of the nasty burger, he claims that merely seeing the phlegm has given him a form of Post Traumatic Stress Disorder (PTSD), including--according to court records--"ongoing emotional trauma from the incident, vomiting, nausea, food anxiety and sleeplessness." He's even seeking professional mental-health treatment.
Bylsma took Burger King to federal court seeking financial damages under the theory that even though he didn't consume the defective product and suffered no physical injury, he is still entitled to win "mental-distress damages."
A U.S. District judge rejected the claim.
But today the Ninth Circuit--the powerful judicial body that rules over Orange County and California, as well as several other western states--considered the issues and punted. The federal panel decided it's hesitant to expand product liability law on its own.
The justices asked the Washington Supreme Court to answer this question:
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"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?"
--R. Scott Moxley / OC Weekly