A Virginia federal appeals court reinstated a personal injury lawsuit filed against McDonald’s after a man burnt his lips on a chicken sandwich.

The suit, originally filed five years ago, was thrown out in 2008 before a jury could come to a decision on whether McDonald’s was liable for 62-year-old Frank Sutton’s injuries. The lawsuit claimed Sutton’s fried chicken sandwich had popped with scalding grease from the deep fryer when he bit in, burning his mouth and lips, according to the Associated Press.

U.S. District Judge Claude Hilton had thrown the case out during the jury trial, saying at the time that there was no actual proof McDonald’s had committed any wrongdoing.

“There’s just no evidence here of any kind of negligence,” Hilton said after he ordered the case to be dismissed. “He ordered a hot piece of chicken and he got a hot piece of chicken. It was hotter than he anticipated, and that was unfortunate.”

The Federal Appeals Court in Richmond, Va. reinstated the case based on evidence Judge Hilton had barred from the original jury trial, according to AP. Sutton’s defense reportedly had evidence that an employee working at the McDonald’s within the Daniel Boone truck stop in Duffield, Va. made a possible admission that the chicken was not cooked correctly.

According to Sutton’s lawyer, one of the employees saw Sutton’s burns and said something similar to, “This is what happens to the sandwiches when they aren’t drained completely.” The appeals court ruled that the jury should be allowed to hear that evidence, AP reported.

During the 2008 trial, Sutton testified that he and a few family members stopped at the Duffield truck stop around 1:30 a.m. and ordered food. Sutton’s friend Bill Giffon was at the McDonald’s at the time, and testified that “grease flew all over his mouth” when he bit into the sandwich, causing personal injury.

Sutton told the court that his lips were bleeding and blistered the following morning, and his wife testified that it was difficult to kiss her husband after he was burned. Sutton told the AP that he can still see scars from the damage.

“It’s a permanent situation with me at this point,” Sutton said. “My opinion is it was nothing but negligence on the part of the McDonald’s people.”

Sutton said he decide to sue only after McDonald’s declined to pay his medical bills, as well as $22,000 in lost wages for a job he lost while healing from the burns.

A spokeswoman from McDonald’s declined to say how often the food company is sued for burns that possibly happened because of their food’s temperature.