A federal judge in Honolulu recommended Thursday that a man who says he was injured by needles in a Burger King sandwich must pay the company’s attorneys’ fees because he missed a required September settlement conference.
U.S. Magistrate Judge Richard Puglisi said in his decision that Clark Bartholomew was under a court order to attend a Sept. 10 settlement conference, but Bartholomew didn’t show up or request to be excused.
Puglisi said Bartholomew’s absence cost the defendants unnecessary attorneys’ fees for a "fruitless" settlement conference. Puglisi was handling the conference. His decision must be approved by U.S. District Judge J. Michael Seabright, who is in charge of the case.
Bartholomew sued Burger King in October 2011, saying he was injured when he bit into and swallowed needles in his Triple Stacker hamburger. One needle pierced his tongue, and another was found lodged in his intestine, he claimed.
An Army staff sergeant at the time, Bartholomew said he bought the hamburger at a Burger King in Schofield Barracks.
Bartholomew sued Burger King; CTI Foods Holding Co., the hamburger patty supplier; and the U.S. Army and Air Force Exchange Services, which owns the Burger King franchise.
In a response declaration, Bartholomew said he couldn’t attend the settlement conference because he had just started a new job as a U.S. Park Police dispatcher in Virginia and had yet to accrue any leave time.
Bartholomew’s lawyers also argued that he was available by phone and that his absence should be excused because the defendants’ lawyers allegedly were not making a good-faith effort to settle.
Puglisi rejected that argument, saying Burger King had submitted settlement offers by email.
Puglisi also said Bartholomew never gave a reason why his wife, Tanya Bartholomew, also a plaintiff in the lawsuit, did not attend the settlement conference for him.
Bartholomew’s Attorney Paul Saccoccio, who attend the conference, said he plans to object to Puglisi’s recommendation. He said a mistake was made, but his clients have other circumstances, such as jobs to attend to.
He also said there shouldn’t be any cost for the defense lawyers.
"They’re worth zero," he said. "They don’t make any offers. They just sit there like empty suits."
Puglisi declined to dismiss the case at the defense’s request. The defense has until Friday to file their costs for the September settlement conference. Puglisi said he will revise his decision to include how much Bartholomew owes after receiving the cost for attorneys’ fees.
The trial is set for March.
