Sunday, March 24, 2013

Disgusting DNA

The Whooper Stopper

When my son worked at a pizza restaurant a long time ago, he told me that some of the kids preparing the food would spit into into their handiwork. I tried not to think about it, but the practice, at a Burger King in Vancouver, Washington, has prompted a major decision on the tort of intentional infliction of emotional distress.

The employee with the loose lips probably did not expect the Whopper with cheese to go directly to the police, but Clark County Deputy Sheriff Edward Bylsma evidently had a well honed sense for the suspicious. After receiving his burger from a drivethrough window, he stopped in a parking lot, removed the top bun, and uncovered a “slimy, clear and white phlegm glob” on the meat.

According to the Huffington Post, "Deputy Bylsma felt ill all day; he claims that he even vomited on account of his emotional distress. He sent the burger away for DNA testing to try and trace the spit back to an individual person. When the results linked the loogie to Burger King employee Gary Herb, Bylsma moved to sue Burger King. He said that he became unable to eat food from restaurants and lived in fear of contracting a foodborne illness."(How the deputy acquired a reference sample from Mr. Herb is not apparent from news accounts.)

A federal judge dismissed the 2009 case against Burger King for negligence, product liability and vicarious liability because the Washington Product Liability Act [WPLA] does not provide for damages for emotional distress in the absence of physical injury. Or so it thought. The Ninth Circuit asked the Washington Supreme Court to rule on the scope of its tort law, and last month, the state court wrote that "[t]he courts of this state recognize damages for ... emotional distress, and thus, such damages, if proved, are recoverable under the WPLA." It added that "[t]he WPLA permits 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, if the emotional distress is a reasonable response and manifest by objective symptomatology."
Of course, whether the deputy will recover at trial (if it comes to that) remains to be seen. Will Burger King argue that the deputy, whose job may require him to view grisly scenes of human violence and carnage, is overstating his symptoms?

Moving Violations

In England, the national DNA database has been employed to curb spitting on transit workers. As part of Operation Gobstopper, bus drivers in northwest London received 2,500 evidence collection kits. Tube staff in central London and train wardens in Scotland were similarly equipped, the BBC reported in 2004.

The kits helped prosecute about 100 people on the Tube in 2007. Reportedly, 7 out of 10 samples yielded a match to DNA profiles in the national database of criminal offenders and arrestees.

Update of Mar. 25, 2013: The Whopper case, Bylsma v. Burger King Corp., 293 P.3d 1168 (Wash. 2013), did not involve a database search. Only two employees, an Herb and a McDonald, had been working in the restaurant.When police visited the restaurant that night and asked for saliva samples, the two refused. The state crime laboratory determined that the saliva on the burger was of human origin. The police returned with search warrants, and the laboratory named Herb as the source of the spit. Herb pleaded guilty to felony assault (although the spit was not initially visible and only touched Bylsma because he placed his finger in it to test its consistency) and was sentenced to 90 days in jail. (Thanks to Jeremy Gans, whose comment provided a link to the civil complaint setting forth these facts).

1 comment:

  1. An apparent copy of the statement of claim available online (here: says that DNA samples were obtained from two BK employees (including Herb) via oral swabs pursuant to a 'search warrant' obtained after the lab test on the alleged spit. Both employees had refused an initial request for consensual sampling (and looked 'frustrated and uneasy'.) The complaint also contains a photo of the offending burger and alleged spit.

    Despite Herb's plea of guilty to 'assault', I would have thought that the DNA match was not particularly strong evidence that Herb deliberately spat in the burger. After all, he worked where the burger was made and may well have made it, so his DNA could have been in the burger innocently (albeit not all that hygienically.)

    For an example of DNA testing foiling an apparent invented spitting allegation, see here: Again, though, the interpretation of these DNA results seems to be fairly murky.