                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
Florida corporation; KAIZEN
RESTAURANTS, INC., an Oregon                OPINION
corporation,
               Defendants-Appellees.


     Appeal from the United States District Court
              for the District of Oregon
   Malcolm F. Marsh, Senior District Judge, Presiding

             Argued December 7, 2011
        Withdrawn Pending Certification to
     Washington Supreme Court January 11, 2012
           Submitted February 12, 2013
                Seattle, Washington

                Filed February 12, 2013
2               BYLSMA V . BURGER KING CORP .

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

                    Opinion by Judge Tallman


                           SUMMARY**


                         Washington Law

    The panel reversed the district court’s judgment
dismissing a diversity action raising an issue of Washington
state law.

    Following the panel’s certification of a question of
Washington state law, the Supreme Court of Washington held
that the Washington Product Liability Act 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, but only if
the emotional distress is a reasonable reaction and manifest
by objective symptomatology. In light of the Washington
Supreme Court’s decision, the panel concluded that the
plaintiff must be given another opportunity to amend his
complaint, and remanded to the district court to determine
whether the plaintiff after amendment has pled the necessary
facts to support his emotional damages claim.


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

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             BYLSMA V . BURGER KING CORP .                 3

                        COUNSEL

Danford Duncan Grant & Darrin E. Bailey, Bailey Onsager,
P.C., Seattle, Washington; Anne M. Bremner & James Taylor
Yand, Stafford Frey Cooper, Seattle, Washington, for
Plaintiff-Appellant.

Gary M. Bullock, Gary M. Bullock and Associates, P.C.,
Portland, Oregon; Barry Goehler, Law Office of Barry J.
Goehler, Portland, Oregon, for Defendants-Appellees.


                        OPINION

TALLMAN, Circuit Judge:

    Plaintiff-Appellant Edward J. Bylsma appealed from a
final judgment on the pleadings dismissing his diversity
action against Defendants-Appellees Burger King Corp. and
Kaizen Restaurants, Inc. (together, “Burger King”).
Bylsma’s complaint stemmed from a March 24, 2009,
encounter during which two employees of a Burger King
restaurant in Vancouver, Washington, served Bylsma a
hamburger tainted with a glob of saliva later traced by DNA
back to one of them. Bylsma asserted claims for product
liability, negligence, and vicarious liability.

    The district court dismissed, holding that the Washington
Product Liability Act (“WPLA”) does not permit relief for
emotional distress damages, in the absence of physical injury
to the plaintiff purchaser, caused by being served and
touching, but not consuming, a contaminated food product.
On appeal, we certified to the Washington Supreme Court
this dispositive and unsettled question of Washington state
4             BYLSMA V . BURGER KING CORP .

law. The Washington Supreme Court has now held that the
WPLA permits relief in such circumstances, therefore we
REVERSE and REMAND to permit Bylsma to amend his
Complaint to conform to Washington law.

                              I

    The facts as alleged by Bylsma are summarized in our
Order Certifying the Question to the Supreme Court of
Washington, 676 F.3d 779, 780–81 (9th Cir. 2012), and we
need not repeat them here. Bylsma did not challenge the
district court’s conclusion that Washington law applied and
that his only potential claim arose under the WPLA. Thus,
the only question before us on appeal was whether, absent
physical injury, the WPLA nonetheless allows for recovery
on Bylsma’s emotional damages claim. Believing the issue
to be unsettled under state law, we certified 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?” On January 31, 2013, the Washington Supreme
Court answered in the affirmative, holding that the WPLA
permits relief in such circumstances, but only if the emotional
distress is a reasonable reaction and manifest by objective
symptomatology. Bylsma v. Burger King Corp., __P.3d__,
2013 WL 363519 (Wash. Jan. 31, 2013).

                              II

    In light of the Washington Supreme Court’s decision, we
conclude that Bylsma must now be given another opportunity
to amend his Complaint. Accordingly, we REVERSE and
REMAND to allow the district court, in the first instance, to
             BYLSMA V . BURGER KING CORP .                5

determine whether Bylsma, after amendment, has pled the
necessary facts to support his emotional damages claim under
the WPLA as now interpreted.

   Costs are awarded to Bylsma.
