676 F.3d 779
9th Cir.2012Background
- Bylsma, a Clark County deputy, sues Burger King and Kaizen Restaurants in Oregon federal court for product liability, negligence, and vicarious liability under Oregon law.
- Incident: at a Vancouver, WA Burger King, Bylsma found a phlegm glob on a Whopper; the glob contained the employee Herb’s saliva.
- DNA testing confirmed the spit originated from Herb; Herb pled guilty to felony assault.
- Bylsma alleges ongoing emotional distress (vomiting, nausea, food anxiety, sleep disturbance) and treatment after the incident.
- District court applied Washington law, held WPLA preempts other claims, and forbids emotional-distress recovery without physical injury, dismissing the action.
- Ninth Circuit certifies a Washington Supreme Court question to resolve whether WPLA allows emotional-distress damages without physical injury for a direct purchaser based on being served a contaminated product.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does WPLA permit emotional distress damages without physical injury to a direct purchaser? | Bylsma argues WPLA covers emotional distress even without physical injury. | Burger King argues WPLA requires harm with physical injury or non-emotional bases, per Fisons and related law. | Unsettled; court certifies to WA Supreme Court for clarification. |
| Should the Washington Supreme Court be asked to resolve this issue rather than deciding itself? | Court’s uncertainty warrants deferring to WA Supreme Court. | Certificate preserves WA law interpretation; court should avoid creating uncertainty. | Certify the question to WA Supreme Court; defer final answer. |
Key Cases Cited
- Washington State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 858 P.2d 1054 (Wash. 1993) (defines harm under WPLA and allows development of the rule via case law; distinguishes third-party injury limits)
- Corrigal v. Ball & Dodd Funeral Home, Inc., 577 P.2d 580 (Wash. 1978) (emotional distress from handling remains; analogous to direct NIED concerns)
- Gain v. Carroll Mill Co., 787 P.2d 553 (Wash. 1990) (bystander NIED limitations; physical presence required for some claims)
- Hegel v. McMahon, 960 P.2d 424 (Wash. 1998) (emotional distress must be medically diagnosable and proven; limits on NIED)
- Colbert v. Moomba Sports, Inc., 176 P.3d 497 (Wash. 2008) (notes Corrigal limitations; applicability to direct NIED remains unresolved)
- Wash. Water Power Co. v. Graybar Elec. Co., 774 P.2d 1199 (Wash. 1989) (displaced product-related NIED constraints; allowed broad product liability framework)