                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

EDWARD J. BYLSMA,                               No. 10-36125
                 Plaintiff-Appellant,               D.C. No.
                 v.                            3:10-cv-00403-PK
BURGER KING CORPORATION, a                     District of Oregon,
                                                     Portland
                                          
Florida corporation and KAIZEN
RESTAURANTS, INC., an Oregon                       ORDER
corporation,                                     CERTIFYING
             Defendants-Appellees.              QUESTION TO
                                                THE SUPREME
                                                  COURT OF
                                               WASHINGTON

                     Filed January 11, 2012

 Before: M. Margaret McKeown and Richard C. Tallman,
 Circuit Judges, and Barry T. Moskowitz, District Judge.*


                             ORDER

   Plaintiff-appellant Edward J. Bylsma (“Bylsma”) appeals
from a final judgment on the pleadings dismissing his diver-
sity action against defendants-appellees Burger King Corp.
and Kaizen Restaurants, Inc. (together, “Burger King”). This
order certifies to the Supreme Court of Washington the dispo-
sitive and unsettled question of Washington state law at issue
in this appeal, namely, whether the Washington Product Lia-
bility Act (“WPLA”) permits relief for emotional distress
damages, in the absence of physical injury to the plaintiff pur-

   *The Honorable Barry T. Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.

                                 123
124             BYLSMA v. BURGER KING CORP.
chaser, caused by being served and touching, but not consum-
ing, a contaminated food product.

                               I

   We provide the following summary of facts as alleged by
Bylsma. Bylsma is a sheriff’s deputy with the Clark County
Sheriff’s Office. On March 24, 2009, at approximately 1:50
a.m., Deputy Bylsma—while on a break—drove his marked
police cruiser to a Burger King restaurant in Vancouver,
Washington, operated by Kaizen Restaurants, Inc. Two
employees, Gary Herb (“Herb”) and Jeremy McDonald
(“McDonald”), were working that shift but there was no
supervisor on duty. Both Herb and McDonald have criminal
records.

   Bylsma entered the drive-thru and ordered a Whopper with
cheese. He recognized McDonald, but not Herb, from previ-
ous visits. After receiving his food, Byslma had an “uneasy
feeling” and pulled into another parking lot down the street.
Before consuming the hamburger, he lifted the top bun and
observed a “slimy, clear and white phlegm glob” on the meat
patty. He inserted his finger into the glob and then called for
back-up.

   Later DNA testing revealed that the glob on the meat patty
was Herb’s saliva. Herb pled guilty to felony assault and was
sentenced to 90 days in jail. In a declaration, Bylsma claims
that he now suffers ongoing emotional trauma from the inci-
dent, including vomiting, nausea, food anxiety, and sleepless-
ness, and has sought treatment by a mental health
professional.

   Bylsma commenced this action against Burger King in the
United States District Court for the District of Oregon raising
claims under Oregon law for product liability, negligence, and
vicarious liability. Burger King moved for judgment on the
pleadings. United States Magistrate Judge Paul Papak issued
                   BYLSMA v. BURGER KING CORP.                      125
Findings and Recommendations to the district court, recom-
mending that Burger King’s motion be granted. Magistrate
Judge Papak determined that Washington law applies; the
WPLA preempts all other causes of action; and the WPLA
does not allow for recovery of mental distress damages
caused to a purchaser by a contaminated product in the
absence of physical injury. United States District Judge Mal-
colm F. Marsh adopted the Findings and Recommendations in
full, dismissed the case, and Bylsma timely appealed. In this
appeal Bylsma does not challenge the district court’s conclu-
sion that Washington law applies and that his only potential
claim arises under the WPLA; he asserts that even absent
physical injury, the WPLA nonetheless allows for recovery on
his emotional damages claim.

                                   II

   After briefing and oral argument, we now tender the ques-
tion which is the basis of our certification order:1 does the
WPLA permit a purchaser to seek relief for emotional distress
damages, in the absence of physical injury, caused by being
served and touching, but not consuming, a contaminated food
product? This question has not been answered by the Wash-
ington Supreme Court.

                                  A

  We have been able to locate only one Washington Supreme
Court opinion addressing the availability of emotional distress
damages under the WPLA. In Washington State Physicians
Insurance Exchange & Ass’n v. Fisons Corp., 858 P.2d 1054
  1
    Even though this course of action was not suggested by either party,
we may properly certify a question sua sponte. Wash. Rev. Code
§ 2.60.030(1) (“Certificate procedure may be invoked by a federal court
upon its own motion.”); Keystone Land & Dev. Co. v. Xerox Corp., 353
F.3d 1093, 1095 n.2 (9th Cir. 2003). When asked at oral argument, coun-
sel did not object to certification.
126              BYLSMA v. BURGER KING CORP.
(Wash. 1993), the court held that “a physician who prescribes
a drug which injures a patient does not have a cause of action
to recover from the drug company for his or her own emo-
tional pain and suffering under the [WPLA].” Id. at 1064.

   The Washington Supreme Court’s analysis began with the
WPLA itself, which provides relief “for harm caused by the
manufacture, production, making, construction, fabrication,
design, formula, preparation, assembly, installation, testing,
warnings, instructions, marketing, packaging, storage or label-
ing of the relevant product.” Wash. Rev. Code § 7.72.010(4).
“Harm” is defined by the WPLA to “include[ ] any damages
recognized by the courts of this state . . . .” Wash. Rev. Code
§ 7.72.010(6). The Fisons court explained that by defining
“harm” in this manner, the Washington Legislature intended
to allow for “the continued development of the concept
through case law.” Fisons, 858 P.2d at 1065. Thus, the court
held that it had to “look to Washington law to define ‘harm’
for purposes of the [WPLA].” Id.

   The Fisons court first considered product liability jurispru-
dence but found nothing directly applicable. Id. As the court
noted, those cases generally involve “injury caused directly by
the product to the person or the property of the claimant.” Id.
(emphasis in original). The court then considered cases
addressing claims for negligent infliction of emotional dis-
tress (“NIED”). Id. After reviewing the relevant case law, the
Fisons court explained that allowing the relief sought by the
physician would “substantially extend[ ] [Washington’s] prior
law regarding when a plaintiff could recover emotional dis-
tress damages caused by the physical injuries of a third per-
son,” and declined to do so. Id. The court also held that cases
involving intentional torts could not provide a basis for
awarding emotional damages to the physician because the
level of fault in a WPLA claim could be considerably less
(i.e., negligence or strict liability). Id. at 1065-66.
                   BYLSMA v. BURGER KING CORP.                       127
                                    B

  Fisons requires us to compare Bylsma’s claim to analogous
Washington case law in order to determine whether the relief
sought is allowed under the WPLA. The proper result of such
an analysis is unclear.

   Looking first to the typical product liability case, Bylsma—
unlike the physician in Fisons—alleges injury caused directly
to him by the product. We have not been able find any prod-
uct liability case allowing emotional distress damages caused
by a product in the absence of physical injury. As such, prod-
uct liability case law alone does not appear to grant relief on
Bylsma’s claim. Because the WPLA displaced NIED causes
of action altogether for product-related claims, Wash. Water
Power Co. v. Graybar Elec. Co., 774 P.2d 1199, 1203-05
(Wash. 1989), it is possible that our analysis should both
begin and end with our determination that no existing product
liability case has allowed the type of relief sought by Bylsma.

   Nonetheless, we remain uncertain as to whether the Wash-
ington Supreme Court would allow relief under the WPLA by
analogizing to NIED cases. Analogizing negligence-based
claims may be improper when considering the definition of
“harm” under the WPLA because that definition could also
apply to violations of the WPLA where a strict liability stan-
dard is imposed. See Wash. Rev. Code § 7.72.030(2) (“A
product manufacturer is subject to strict liability to a claimant
if the claimant’s harm was proximately caused by the fact that
the product was not reasonably safe in construction . . . .”);
cf. Fisons, 858 P.2d at 1065 (“In a product liability claim, lia-
bility can be predicated on negligence or even on strict liabili-
ty.”).2
   2
     Because Bylsma’s complaint is styled under Oregon law, the particular
WPLA claim Bylsma seeks to pursue is not entirely clear. Though his
counsel stated at oral argument that Bylsma asserts a “negligence” claim
under the WPLA, his claim may also be characterized as a manufacturing
defect claim. See Wash. Rev. Code § 7.72.030 (establishing liability
against a manufacturer based on design defects, failure to warn, and manu-
facturing defects).
128             BYLSMA v. BURGER KING CORP.
   In Fisons, however, the court considered NIED case law in
analyzing whether the relief sought by the third-party physi-
cian was available under the WPLA. While Bylsma’s direct
claim does not implicate a third-party, it may be appropriate
for us to consider NIED case law. See Fisons, 858 P.2d at
1065 (explaining that the Legislature intended to allow for
“the continued development of the concept [of ‘harm’ com-
pensable under the WPLA] through case law” (emphasis
added)). Corrigal v. Ball & Dodd Funeral Home, Inc., 577
P.2d 580 (Wash. 1978), presents the most analogous fact-
pattern. In Corrigal, the court found that a woman had stated
an NIED claim when a funeral home, which had agreed to
cremate her son’s body and return his remains to her in an
urn, mailed her the remains in a plastic bag. Id. at 581. The
plaintiff touched what she thought was packaging material
and suffered emotional distress when she realized it was actu-
ally her son’s bones and ashes. Id.

   Though Corrigal was not a product liability case, it too
involves emotional damages arising from receiving and
touching something startling that did not meet specifications.
We presume that Corrigal should be read in light of subse-
quent cases like Gain and Hegel, which imposed additional
limitations on bystander NIED claims (i.e., claims for mental
suffering caused by observing injury to another). Gain v. Car-
roll Mill Co., 787 P.2d 553, 554 (Wash. 1990) (holding that
a claim for NIED “caused by the negligent bodily injury of a
family member . . . was properly dismissed, as the plaintiffs
were not physically present at the scene of the accident”);
Hegel v. McMahon, 960 P.2d 424, 431 (Wash. 1998) (holding
that emotional distress must be “susceptible to medical diag-
nosis and proved through medical evidence”).

   The Washington Supreme Court recently stated (in a foot-
note) that Corrigal “no longer controls with regard to require-
ments for a claim of negligent infliction of emotional
distress,” but acknowledged that “in Corrigal the plaintiff was
physically present and actually felt her son’s remains as a
                 BYLSMA v. BURGER KING CORP.                 129
result of the funeral home’s negligence.” Colbert v. Moomba
Sports, Inc., 176 P.3d 497, 505 n.3 (Wash. 2008). The court
noted that the limitations set forth in Gain and Hegel “were
not considered in Corrigal,” but did not determine whether
those limitations would have precluded relief. Id. Thus, the
applicability of the limitations on relief established in
bystander NIED cases to a direct NIED claim (where the
plaintiff was the direct victim of the defendant’s alleged neg-
ligence) remains unresolved. We do not know whether the
Washington Supreme Court would import those limitations
into direct NIED claims. See Fisons, 858 P.2d at 1065
(“Generally, in cases where emotional distress is not a conse-
quence of physical injury, or caused by intentional conduct,
Washington courts have been cautious about extending a right
to recovery, especially when the distress is the consequence
of an injury suffered by a third person.”).

   Given the uncertainty of the law in this area, we believe it
is appropriate to defer to the Washington Supreme Court on
this important issue of state law.

                               C

  Based on the foregoing, we conclude that the issue pre-
sented in this appeal—whether the WPLA permits relief for
emotional distress caused to a direct purchaser by a contami-
nated product in the absence of physical injury—“has not
been clearly determined” by the Washington courts. Wash.
Rev. Code § 2.60.020. Because the answer to our question is
outcome determinative, its resolution is “necessary . . . to dis-
pose” of this appeal. Id.

   If clarified definitively by the Washington Supreme Court,
the answer to the unsettled question of law presented by Byls-
ma’s appeal will have far-reaching effects on those involved
in the manufacture and sale of products in Washington. We
are reluctant to create uncertainty in this area of the law by
answering this question ourselves in the first instance.
130               BYLSMA v. BURGER KING CORP.
                            ORDER

   In light of our foregoing discussion, we respectfully certify
to the Washington Supreme Court the following question:

      Does the Washington Product Liability Act permit
      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?

We do not intend, by the phrasing of this question, to restrict
the Washington Supreme Court’s consideration of this issue.
We acknowledge that the Washington Supreme Court may, in
its discretion, reformulate the question. Broad v. Mannesmann
Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir. 1999); Len-
hardt v. Ford Motor Co., 683 P.2d 1097, 1098 (Wash. 1984).

  If the Washington Supreme Court accepts review of the
certified question, we designate Bylsma to file the first brief
pursuant to Wash. R. App. P. 16.16(e)(1).

   The Clerk of Court is hereby ordered to transmit forthwith
to the Washington Supreme Court, under official seal of the
United States Court of Appeals for the Ninth Circuit, a copy
of this order and all briefs and excerpts of record pursuant to
Wash. Rev. Code §§ 2.60.010(4), 2.60.030(2), and Wash. R.
App. P. 16.16.

   Further proceedings in this court are stayed pending the
Washington Supreme Court’s decision whether it will accept
review and, if so, receipt of the answer to the certified ques-
tion. The case is withdrawn from submission until further
order from this court. The panel will resume control and juris-
diction upon receipt of an answer to the certified question or
upon the Washington Supreme Court’s decision to decline to
answer the certified question. When the Washington Supreme
Court decides whether or not to accept the certified question,
                 BYLSMA v. BURGER KING CORP.                 131
the parties shall file a joint status report informing this court
of the decision. If the Washington Supreme Court accepts the
certified question, the parties shall file a joint status report
informing this court when the Washington Supreme Court
issues its answer.

  It is so ORDERED.
