COLUMBUS, Ohio — The Ohio Supreme Court ruled that a man who ordered boneless wings should have expected bones to be in them, denying him a jury trial after he suffered major injuries, including several surgeries and two medically induced comas. A state legislator is so outraged by the decision that he plans to propose a bill to change the law.

State Sen. Bill DeMora (D-Columbus) is an avid wing fan, having weekly wing nights with his friends when he was in college. Just recently, he went to an all-you-can-eat boneless wings event.

“I did not expect to have a bone in my boneless wings,” DeMora said.

But that isn’t how the state sees it.

Chicken wings advertised as ‘boneless’ can have bones, Ohio Supreme Court decides

The case

Back in 2017, Michael Berkheimer ordered boneless wings at Wings on Brookwood in Southwest Ohio, according to his lawsuit filed in Butler County. The menu of the restaurant was included the court documents and did not feature any disclaimer saying bone fragments could be in the food. As of Friday, it still doesn’t.

He had cut up his wing into thirds, eating the first two pieces of it normally. On his third one, Berkheimer felt like something went down the wrong “pipe,” the court documents said. He ran to the restroom and tried to vomit, unsuccessfully. That night, he developed a fever, and for the next two days, he couldn’t eat a bite of food without throwing up, records state.

He was rushed to the ER with a 105-degree fever, the lawsuit states. Doctors found a 1 and 3/8 inch chicken bone in his throat, one that tore open the wall of his esophagus. From there, he developed a “massive infection in his thoracic cavity,” the document says.

“The severity of the infection, which centered on Mr. Berkheimer’s heart and lungs, required several surgeries, two medically induced comas, and a week-long stay in intensive care, followed by two-to-three additional weeks in the hospital,” the lawsuit states.

The medical issues are still ongoing, records state.

Berkheimer sued the restaurant and their chicken suppliers, arguing that the sellers’ “negligence” led to his injuries.

Both the Butler County Court of Common Pleas and the Twelfth District Court of Appeals sided against Berkheimer, arguing that “common sense dictated the presence of bone fragments in meat dishes,” according to the courts. Neither court let the case go to trial.

Supreme Court

On Thursday, the majority of the Ohio Supreme Court ruled that the lower courts made the right decision, denying Berkheimer the ability to continue his lawsuit to a jury trial. The court was split four Republicans to three Democrats.

The justices were just supposed to decide whether or not it could go to trial, Case Western Reserve University law professor Jonathan Entin said.

“The majority said no way this case shouldn’t go to trial at all because no reasonable consumer would think that boneless chicken wings might not have bones in them, especially since bones are part of chickens,” Entin explained.

The court didn’t believe a jury would rule in Berkheimer’s favor, he said.

In the majority opinion, Justice Joe Deters wrote that the restaurant wasn’t liable “when the consumer could have reasonably expected and guarded against the presence of the injurious substance in the food.”

Deters added that “boneless wings” are a cooking style, according to the opinion. He compared “boneless wings” to the food “chicken fingers,” noting that people would not actually think they are eating fingers.

The courts used the ‘Allen test’ method to determine negligence, which evaluates both if the harmful substance was foreign to the food or natural and whether the customer could reasonably guard against it. They found that the bone was natural and large in comparison to the piece of chicken.

“Any reasonable consumer should have been able to find it,” Entin said, explaining the court’s opinion.

The Democrats emphatically dissented.

“The result in this case is another nail in the coffin of the American jury system,” dissenting opinion author Justice Michael Donnelly said.

The case is merely about whether Berkheimer can have a jury of his peers decide if the restaurant and suppliers were negligent according to law, he said.

“The majority opinion makes a factual determination to ensure that a jury does not have a chance to apply something the majority opinion lacks— common sense,” the justice continued.

He continued on to explain that they didn’t have the full facts, being unable to see what the bone looked like.

“If it did, then I suggest that the majority suffers from a serious, perhaps disingenuous, lack of perspective,” the justice said.

The idea that the label “boneless wing” is a cooking style is “Jabberwocky,” the Democrat said, saying the absurdity of the opinion reads like a “Lewis Carroll piece of fiction.”

This could have ripple effects, Donnelly argued. For people who are nut, dairy or gluten-free, the court seemed to have decided that if they order allergy-free food, it could still have the allergen because that is “natural” to the food.

Deters responded to this, claiming it was different.

“But unlike the presence of the bone in this case, the presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against,” Deters said.

It’s a lot harder to detect gluten or lactose than it is to detect a bone, Entin explained.

Reaction

This is insane, DeMora said.

“This defies logic, it defies reason, it defies common sense,” DeMora said. “Now the definition of boneless, according to the Ohio Supreme Court, means… it could have a bone.”

The justices are blocking Berkheimer from having a jury trial because they don’t care about the “regular Ohioan,” he said.

“You get screwed out of your day in court because we have to protect our donors and our corporations more than we protect our citizens,” the lawmaker said.

DeMora has already directed his team to start looking into what they can do to help Berkheimer and other Ohioans.

“We can’t really pass a law saying that boneless chicken means there’s no bones in it — Although maybe we can, I don’t know. If that’s possible, I’m gonna do it for sure.”

Regardless of that idea, he is also researching other consumer protection provisions he can draft bills around, he said.

Berkheimer’s attorney, Robb Stokar, agreed that this case wasn’t fair.

“I believe the dissent correctly wrote that the ruling was “another nail in the coffin of the American jury system.” Mr. Berkheimer suffered catastrophic injuries from a bone contained in a menu item unambiguously advertised as “boneless” at every level of commerce. All we asked is that a jury be able to make a commonsense determination as to whether he should be able to recover for his injuries. But the Court’s majority ruled otherwise, simultaneously denying him that opportunity, and rendering the word “boneless” completely meaningless,” Stokar told me.

Some of these justices are up for reelection, so Entin anticipates some politicos could put ads up about this decision — especially because Deters’ tone did not need to be as harsh as it was.

“You don’t have to get into all of the technical details of legal doctrine to be able to say this is a decision that shows that a majority of the current court are not sympathetic to ordinary people who get hurt through, basically, no fault of their own,” Entin said.

Deters, Donnelly and dissenting Justice Melody Stewart are all up for election in November.

“Boneless means without bones,” DeMora said. “I can’t understand the logic of the Republican majority.”

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