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Burger King Suit Over Spit in Sandwich Revived by Court

A customer’s lawsuit against Burger King Corp. claiming he was served a hamburger tainted by saliva traced to an employee was revived by a federal appeals court that said he can file a claim for emotional distress.

A three-judge panel of the U.S. Court of Appeals in San Francisco said Edward Bylsma can modify his lawsuit, which he filed after he was allegedly served “a hamburger tainted with a glob of saliva later traced by DNA back to one” of two employees he encountered in 2009 at a Burger King in Vancouver, Washington, according to the ruling today.

A federal judge in Oregon dismissed Bylsma’s product liability and negligence lawsuit. The appeals court said Bylsma can amend his complaint because the Washington Supreme Court determined in January that the state’s product liability law allows lawsuits for emotional distress caused by being “served or touching, but not consuming” a contaminated food product even if there’s no physical injury.

The appeals court sent the case back to the district court with instructions to determine whether the modified lawsuit contains enough facts to support emotional damages claims. The Washington Supreme Court said such lawsuits can proceed if the emotional distress “is a reasonable reaction,” the court said.

The lawsuit named Burger King and Kaizen Restaurants Inc. as defendants.

Burger King’s media office didn’t immediately respond to an e-mail seeking comment on the decision.

Burger King, based in Miami, was taken private in 2010 by investment firm 3G Capital Inc. and went public last year after completing a merger with a firm owned by investor William Ackman.

The case is Bylsma v. Burger King Corp., 10-36125, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

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