Ninth Circuit to Washington Supreme Court: "Have It Your Way"

April 2012

It's a Whopper of a case.  Following Burger King's alleged service of a "spit burger," the Ninth Circuit Court of Appeals has certified the following question to the Washington Supreme Court:

Does the Washington Product Liability Act (WPLA) 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?

The plaintiff, a sheriff's deputy, filed a product liability suit, alleging that he ordered a Whopper with cheese at a Burger King drive-thru.  After receiving his order but before consuming any food, the plaintiff had an "uneasy feeling."  He lifted up the bun and observed a "slimy, clear and white phlegm glob" on the Whopper.  DNA testing determined that the glob was a Burger King employee's saliva.  The plaintiff alleged that the incident caused ongoing emotional distress, resulting in vomiting, nausea, food anxiety and sleeplessness.

The touchstone of any WPLA analysis is whether a product is "reasonably safe."  RCW 7.72.030.  WPLA provides relief "for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, store or labeling of" a product.  RCW 7.72.010(4).  Product liability cases typically involve "injuries caused by the product to the person or property of the claimant."  Washington State Physicians Insurance Exchange & Ass'n v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054 (1993).

Only one Washington case addresses emotional distress damages under WPLA.  In that case, the Washington Supreme Court held that a claimant did not have a product liability cause of action for purely emotional damage under WPLA.  Fisons, supra.  However, no Washington case has addressed negligent infliction of emotional distress claims under WPLA.  Therefore, the Ninth Circuit could not address the efficacy of the plaintiff's emotional distress claim without further input from the Washington Supreme Court.  The Ninth Circuit noted that the "answer to the unsettled question of law present by [the plaintiff] will have far-reaching effects on those involved in the manufacture and sale of products in Washington."  Bylsma v. Burger King Corp., --- F.3d ----, 2010 WL 75626 ((C.A.9 (Or.)).  Indeed, should the Washington Supreme Court determine that WPLA permits recovery for emotional distress damages in the absence of physical injury, Washington product liability law will be super-sized.  Product manufacturers, sellers and distributors should be aware of the potential expansion of liability in Washington state.