With a hat-tip to the blog, “How Appealing,” the ABA Journal is reporting that the 9th Circuit Court of Appeals has asked the Washington Supreme Court whether its product liability laws will allow a recovery emotional distress damages without evidence of any other injury. The case is based upon “glob of spit” found by a sheriff’s deputy on a Whopper. The deputy reportedly got an “uneasy feeling” about two of the Burger King’s employees, so he opened his burger before taking a bite. When he looked under the bun, Thomson Reuters News & Insight and SeattlePI.com report that he noticed a “slimy, clear and white phlegm glob.” A Burger King employee’s DNA was identified from the substance. The deputy sued Burger King, but he did not take a bite of the sandwich and does not claim physical injury. Instead, he alleges that the emotional trauma resulted in vomiting, nausea, food anxiety and insomnia. Texas, (and most states) do not allow emotional distress unless physical injuries are also involved. There are a few notable Texas exceptions, such a outrageous or intentional conduct, and other very limited circumstances. It will be interesting to see how the Washington Supreme Court answers the question. For those interested in following it, the case is Bylsma v. Burger King Corp.
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