State Supreme Court weighs in on ‘phlegm-burger’ served to cop

A Clark County sheriff’s deputy claiming to suffer “ongoing emotion distress” after finding someone had spit in his hamburger received some good news Thursday, courtesy of the state Supreme Court.

In a split decision, the high court agreed with Deputy Edward Bylsma – state law does allow for compensation of consumers who suffered emotionally because of a product failure. Bylsma sued Burger King and a Vancouver-area franchise claiming the sputum in his Whopper left lasting psychological scars.

The deputy’s lawsuit has made its way to the 9th Circuit Court of Appeals, which asked the Washington Supreme Court to weigh in on the state’s product liability law. Thursday’s decision by the state Supreme Court doesn’t settle the matter, but would instead be used by the Appeals Court should it issue a decision.

Blysma’s lawsuit was previously dismissed after a lower federal court found Washington law did not support such suits. Thursday’s decision will presumably allow it to go forward, though the state court was clear that a plaintiff must show their emotional distress is a “reasonable reaction” to circumstances and has manifested itself in a measurable way.

Bylsma sued Burger King in U.S. District Court claiming a Burger King employee with a criminal record ruined his late-night snack by spitting – brace yourself – a “slimy, clear and white phlegm glob” into his Whopper.

According to the deputy’s version of events, Bylsma pulled his cruiser into a Vancouver Burger King early on March 24, 2009, to pick up an early morning lunch.

The workers there gave him an “uneasy feeling,” which proved correct when he peeled back the Whopper’s top bun and found the spit resting atop the meat patty, according to the lawsuit. Bylsma claims to suffer “ongoing emotional trauma from the incident, including vomiting, nausea, food anxiety and sleeplessness.”

DNA testing showed employee Gary Herb to be the source of the sputum. Herb was sentenced to 90 days in jail after pleading guilty to a related assault charge.

The deputy’s lawsuit was thrown out by a U.S. District Court judge, who found that Washington consumer protection law did not allow for damages when emotional distress is the sole injury sustained.

Reviewing the lower court decision in January 2012, the three-judge appellate panel found the state consumer protection law to be so unsettled the federal courts need a clarification from the state Supreme Court before they can address the issue.

Writing for the six-justice majority, Justice Steven Gonzalez noted that case law already supported lawsuits seeking compensation for emotional harm in circumstances where negligence was involved.

Gonzalez pointed to an earlier court decision supporting parents of a dead child whose remains were disposed of improperly, as well as a finding against another funeral home which sent a mother a box of her child’s ashes. The woman in the second case ended up inadvertently sifting through her child’s remains, believing them to be packing material.

Without opining on the Blysma’s claims of emotional harm, Gonzalez asserted that tainted food could under some circumstances cause extreme suffering.

“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,” Gonzalez wrote for the majority. “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. “

Writing in dissent, Justice James Johnson asserted state law does not allow product liability-related claims of emotional harm when a plaintiff hasn’t been physically harmed. Johnson went on to suggest the majority’s decision may clear the way for unwarranted lawsuits over hurt feelings.

“Unfortunately, it is the public that will bear the burden of the increased costs likely to emanate from this unprecedented expansion of products liability,” Johnson wrote in dissent. “The majority conveniently overlooks the statutory language and legislative history demonstrating that this was the very problem the legislature sought to remedy by enacting the” Washington Product Liability Act.

Gonzalez was joined in the majority by Justices Charles W. Johnson, Mary Fairhurst, Debra Stephens and Charles Wiggins, as well as Justice pro tem Tom Chambers. Chief Justice Barbara Madsen and Justice Susan Owens joined the dissent.