A retired soldier suing Burger King after he swallowed needles while eating a sandwich should pay nearly $8,500 in attorneys’ fees and costs to the defendants for not showing up at a settlement conference, a federal magistrate judge ruled.

Burger King asked for sanctions against Clark Bartholomew because he didn’t attend 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 in 2010 after biting into a Triple Stacker purchased from a Burger King on a Hawaii base.

He now lives in Chantilly, Virginia, and has said in a declaration he couldn’t travel to Hawaii because he couldn’t take time off from a new job as U.S. Park Police dispatcher.

U.S. Magistrate Judge Richard Puglisi’s ruling issued this week is still subject to final approval by the presiding judge in the case. Puglisi determined that sanctions are necessary because Bartholomew defied a court order to attend the conference, but the magistrate said dismissing the case would be too harsh.

Bartholomew’s attorney Paul Saccoccio on Tuesday called the ruling harsh and said they plan to appeal.

The defendants haven’t taken negotiations seriously, Saccoccio said. “They show up and that’s all they do,” he said. “They came with nothing. … The most work they put in was writing the motions for attorneys’ fees.”

Bartholomew spent $1,300 to travel to Hawaii for a settlement conference last year, but no settlement was offered, his wife Tanya Bartholomew said in an email. She said her husband’s hospital bill is more than $13,000.

Without a settlement, the case is scheduled to go to trial.

“They’re going to pay this back and more,” Saccoccio said. “We’ll do what we have to do to get this before a jury and in the end, Burger King will have to pay.”

The Honolulu lawyer representing Burger King declined to comment Wednesday.