A federal magistrate judge is recommending that a former soldier suing Burger King for swallowing needles in a sandwich pay attorneys’ fees and costs to the defendants for not showing up at a settlement conference.
Burger King had filed a motion asking for sanctions against Clark Bartholomew because he didn’t show up at last month’s conference in Honolulu. The former Army sergeant’s lawsuit says one needle pierced his tongue and another was lodged in his small intestine after biting into a Triple Stacker from a Burger King on a Hawaii base.
Bartholomew, who has retired from the Army and lives in Chantilly, Virginia, said in a declaration that he couldn’t travel to Hawaii for the conference because he recently started working as a U.S. Park Police dispatcher and couldn’t take time off. His lawyers also argued Burger King hasn’t taken negotiations seriously.
In a recommendation issued Thursday, U.S. Magistrate Judge Richard Puglisi said attorneys’ fees and costs are appropriate because Bartholomew defied a court order to attend the conference. Burger King also asked for a dismissal, but Puglisi said that would be too harsh.
The recommendation is still subject to approval by the presiding district court judge in the case.
Bartholomew’s lawyers are considering an appeal.
"This is the judge’s ruling and he’s a good judge. We disagree with him on this," said one of his lawyers, Paul Saccoccio. "My client was back there trying to work. He’s an injured war veteran. Perhaps it was a bad decision, but he just couldn’t get here."
The Honolulu attorney representing Miami-based Burger King Corp. declined to comment.
Puglisi directed defendants to let him know by next Friday the amounts spent related to the Sept. 10 settlement conference. The judge will then amend his recommendations with a fixed amount.