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Ruling issued in spit-in-Whopper suit

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POSTED January 31, 2013 8:42 p.m.

SEATTLE (AP) — The state Supreme Court ruled Thursday in the case of a deputy who says he found spit in his Whopper that state law allows compensation of consumers who suffered emotionally because of a product failure.

Clark County Deputy Edward Bylsma has sued Burger King and a Vancouver-area franchise holder, claiming sputum found in his Whopper in 2009 left lasting psychological scars.

The 9th Circuit Court of Appeals had asked the state Supreme Court to weigh in on the state's product liability law.

The ruling doesn't settle the matter but could be used by the appeals court if it issues a decision.

The case was previously dismissed after a lower federal court found Washington law did not support such suits. The latest ruling will presumably allow it to go forward, though the state court was clear that a plaintiff must show the emotional distress is a reasonable reaction to circumstances and has manifested in a measurable way.

Bylsma sued Burger King in federal court claiming an employee with a criminal record ruined his late-night snack by spitting a "slimy, clear and white phlegm glob" into his burger.

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.

Writing for the six-justice majority on the Washington high court, Justice Steven Gonzalez noted case law supports lawsuits seeking compensation for emotional harm in circumstances where negligence was involved.

Without addressing Blysma's claims, 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.

Writing in dissent, Justice James Johnson said 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 might 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.

A message left with Burger King Thursday afternoon seeking comment wasn't immediately returned.


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