“Sometimes You’ve Got to Break the Rules” – Emotional Distress Damages for Contaminated Food That Isn’t Eaten?

January 31, 2012 | Erika Eckley


In an unexpected twist on whether you really can have it your way in the State of Washington, the United States Court of Appeals for the Ninth Circuit certified a question to the Washington Supreme Court as to whether the Washington Product Liability Act (WPLA) allows a person to recover emotional distress damages for merely being served and touching a contaminated food product without actually having consumed the product or suffered any physical injury.

The saga begins when Deputy Bylsma was working the late shift one night in March.  During a break, He decided to get something to eat, so he went to the local Burger King drive-thru in his marked police car where he ordered a Whopper with cheese. There were only two line-level employees working that night, both of whom had criminal records. Bylsma recognized one of the employees from previous visits, but did not know the other employee. Upon receiving his order, Bylsma had an “uneasy feeling” causing him to look under the bun.  His examination of the Whopper disclosed   that a “slimy, clear and white phlegm glob” had been added to the usual Whopper condiments. He tested the substance with his finger, and then called for back-up to further investigate the Whopper’s special “cop sauce.”

DNA testing revealed that the substance was provided (at no extra charge) by one of the Burger King employees. The employee pled guilty to felony assault, was convicted, and sentenced to 90 days in jail.  However, Deputy Bylsma claimed that the event caused him emotional trauma, including vomiting, nausea, food anxiety, and sleeplessness. He also sought treatment from a mental health professional.

Deputy Bylsma sued Burger King in federal district court based on claims brought under Oregon law for product liability, negligence and vicarious liability. Burger King’s motion to dismiss was granted.  The trial court determined that Washington law applied, and that the WPLA preempted the negligence and vicarious liability claims. The court also held that Washington’s statute did not allow recovery for claims for mere mental distress damages from the purchase of a contaminated product in the absence of a physical injury. Bylsma appealed the determination that the WPLA precluded recovery for emotional distress damages without a physical injury.

On appeal, the U.S. Circuit   Court of Appeals for the Ninth Circuit examined Washington case law reviewing the WPLA. In general, typical product liability claims do not allow recovery for emotional distress claims without an accompanying physical injury. In Washington, the state court has previously examined common law claims for negligent infliction of emotional distress to determine harm to third parties under the WPLA. Although the Washington court determined there was no liability in previous cases, it was because the claim was made by a third-party who was claiming emotional harm as a bystander. The specific issue presented by this case had never been decided by the state court. Because of the prior use of emotional distress cases to interpret the WPLA, the court determined that the Washington court should  decide the issue, so the court  certified the following question to the Washington Supreme 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?”
It is not yet known whether the Washington Supreme Court will accept review of the certified question. It is unlikely that Washington will answer the question in the affirmative. If it does, however, the state will be flame-broiled in controversy. The definition of harm within the WPLA is very broad and includes “any damages recognized by the courts of this state.” Wash. Rev. Code § 7.72.010(6). This would create liability “for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product,” Wash. Rev. Code § 7.72.010(4). If emotional distress claims are allowed to stand alone, there seem to be few businesses that would escape the whopping increase in product liability suits from mere exposure to a product in Washington. All businesses should hope the Washington Supreme Court has more sense on this claim than the unsupervised employees involved in this case that were allowed to work the drive-thru of a Burger King late at night. Bylsma v. Burger King Corp., No. 10-36125, 2012 WL 75626 (9th Cir. Jan. 11, 2012).