The Ohio Supreme Court has ruled that a man who ordered boneless wings should have expected there to be bones in them, denying him a jury trial after he suffered grave injuries, including multiple surgeries and two medically induced comas. A state lawmaker 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, hosting weekly wing nights with friends when he was in college. He recently went to an all-you-can-eat boneless wing event.
“I didn’t expect to find a bone in my boneless wings,” DeMora said.
But the state sees it differently.
In 2017, Michael Berkheimer ordered boneless wings from Wings on Brookwood in southwestern Ohio, according to his lawsuit filed in Butler County. The restaurant’s menu was included with court documents and did not include any disclaimer that the food might contain bone fragments. As of Friday, it still doesn’t.
He cut the wing into three pieces, eating the first two normally. After the third, Berkheimer felt something was wrong, according to court documents. He ran to the bathroom and tried to vomit, but couldn’t. That night, he developed a fever and couldn’t eat a bite for two days without throwing up, records say.
He was rushed to the ER with a fever of 105 degrees, the lawsuit said. Doctors found a 1 3/8-inch chicken bone in his throat that had torn the wall of his esophagus. He had since developed a “massive infection in his chest cavity,” the document said.
“The severity of the infection, which affected Mr. Berkheimer’s heart and lungs, required multiple surgeries, two medically induced comas, and a week in the intensive care unit, followed by an additional two to three weeks in the hospital,” the lawsuit reads.
According to the documents, the medical issues are still ongoing.
Berkheimer sued the restaurant and its chicken suppliers, arguing that his injuries were caused by the vendors’ “negligence.”
Both the Butler County Court of Common Pleas and the Twelfth Circuit Court of Appeals ruled against Berkheimer, arguing that “common sense dictated the presence of bone fragments in the meat dishes,” according to the court rulings. Neither court allowed the case to go to trial.
Supreme Court
On Thursday, a majority of the Ohio Supreme Court ruled that lower courts made the right decision in denying Berkheimer the ability to continue his lawsuit to a jury trial. The court split with four Republicans and three Democrats.
Jonathan Entin, a law professor at Case Western Reserve University, said the justices were simply asked to decide whether the case could go to trial.
“The majority found that this case should not have gone to trial at all because no reasonable consumer would think that boneless chicken wings could be boneless, especially since bones are part of the chicken,” Entin explained.
He added that the court did not believe the jury would rule in Berkheimer’s favor.
In the majority opinion, Judge Joe Deters wrote that a restaurant is not liable “when the consumer could reasonably have expected the presence of a harmful substance in the food and could have protected himself against it.”
Deters added that “boneless wings” is a cooking style, according to the review. He compared “boneless wings” to eating “chicken fingers,” noting that people wouldn’t actually think they were eating fingers.
The courts applied the “Allen test” method to determine negligence, which assesses both whether the offending substance was foreign to the food or natural, and whether the customer could have reasonably protected themselves from it. They found that the bone was natural and vast compared to a piece of chicken.
“Any reasonable consumer should be able to find that,” Entin said, explaining the court’s opinion.
Democrats expressed sturdy opposition.
“The outcome of this case is another nail in the coffin of the American jury system,” said dissenting Judge Michael Donnelly.
The case is solely about whether Berkheimer can have a jury inquire into whether the restaurant and its suppliers were negligent as a matter of law, he said.
“The majority opinion contains a finding of fact designed to ensure that the jury will not have a chance to apply something the majority opinion lacks — common sense,” the judge continued.
He explained that they didn’t know all the facts because they couldn’t see what the bone looked like.
“If that was the case, then in my view most suffer from a serious, perhaps disingenuous, lack of perspective,” the judge said.
The Democrat said the idea that a “boneless wing” label is a way of preparing food is “Jabberwocky” and that the absurdity of the notion is reminiscent of “Lewis Carroll fiction.”
This could have a knock-on effect, Donnelly argued. For people who don’t eat nuts, dairy or gluten, the court apparently ruled that if they order food without the allergen, it can still contain the allergen because it’s “natural” to that food.
Deters replied that it was otherwise.
“However, unlike the presence of bone in this case, the presence of lactose or gluten in foods advertised as lactose-free or gluten-free is not something a consumer would expect or protect themselves against,” Deters said.
As Entin explains, gluten and lactose are much more tough to detect than bone.
Reaction
This is crazy, DeMora said.
“It defies logic, it defies reason, it defies common sense,” DeMora said. “The definition of boneless right now, according to the Ohio Supreme Court, is … it can have a bone.”
Judges are not allowing Berkheimer to go to a jury trial because they don’t care about the “average Ohioan,” he said.
“You will be deprived of the opportunity to participate in the trial because we have to protect our donors and corporations more than we have to protect our citizens,” the lawmaker said.
DeMora has already directed his team to see what can be done to lend a hand Berkheimer and other Ohioans.
“We can’t pass a law that says boneless chicken means there are no bones in it — although maybe we can, I don’t know. If it’s possible, I’d definitely do it.”
He added that, regardless of this idea, he is also examining other provisions relating to consumer protection, based on which he could prepare draft laws.
Berkheimer’s attorney, Robb Stokar, agreed the case was unfair.
“I believe the dissent correctly noted 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 that was clearly advertised at every level of commerce as ‘boneless.’ All we asked was for a jury to be able to make a common-sense decision about whether he should be able to sue for his injuries. But the majority of the Court ruled otherwise, simultaneously denying him that opportunity and rendering the word ‘boneless’ completely meaningless,” Stokar told me.
Some of those judges are up for re-election, so Entin predicts some politicians may run ads announcing the decision — especially since Deters’ tone didn’t need to be quite so harsh.
“You don’t have to get into all the technicalities of the legal doctrine to say that this is a decision that shows that the majority of the current bench has no sympathy for ordinary people who have been wronged, essentially through no fault of their own,” Entin said.
Deters, Donnelly and dissenting Judge Melody Stewart will run for re-election in November.
“Boneless means boneless,” DeMora said. “I don’t understand the logic of most Republicans.”
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