Ohio's highest court takes up case involving a bone found in a boneless wing order

COLUMBUS, Ohio (WCMH) – Ohio’s top court will decide whether a restaurant can be held responsible for the extensive injuries a man suffered from ingesting a piece of chicken bone in his order of boneless wings.

After nearly seven years of legal proceedings, Michael Berkheimer has taken his complaint against a Hamilton restaurant to the Ohio Supreme Court, asking it to reverse a lower court’s ruling in favor of the shop and its food suppliers. During oral arguments Tuesday morning, attorneys for both Berkheimer and the restaurant said the test the lower court used – whether Berkheimer should have reasonably expected to find a bone in his meal – supported their respective stances.

In April 2016, Berkheimer was enjoying his regular order of parmesan garlic boneless wings at Wings on Brookwood when a piece of chicken bone lodged in his throat, tearing his esophagus. The tear, discovered by doctors days later when he was hospitalized with a high fever, caused a secondary infection affecting his heart and lungs. 

After multiple surgeries, weeks in the hospital and the prolonged use of an oxygen tank, Berkheimer was left with lasting heart and lung damage and a partially paralyzed diaphragm, according to court filings.

In March 2017, Berkheimer sued REKM, the owner of Wings on Brookwood, as well as the processor that made the boneless wings and the farm the chicken came from. The companies claimed they were immune from Berkheimer’s lawsuit because bones naturally are part of chicken, meaning Berkheimer was responsible for ensuring his boneless chicken did not contain injury-causing bones.

Both the trial and appellate court agreed with the companies, with the appellate court’s opinion reading, “it is well settled that bone fragments may be present in chicken meat dishes.”

Berkheimer disagrees, claiming that the lower courts focused too heavily on the fact that bones are natural to chicken while ignoring other important factors. In court filings and before the court Tuesday, his attorney, Robb Stokar, argued that the three companies each had the responsibility to ensure that the product they advertised as boneless was, in fact, boneless. Moreover, Stokar said, the restaurant, food supplier and farm should have communicated to consumers that there was a possibility the boneless chicken may contain bone fragments.

Discovery at the lower court revealed that Gordon Food Service, the food processor REKM bought the boneless chicken from, had received seven complaints of injury-causing bone fragments in their boneless chicken breasts, all sourced from Wayne Farms, in the three months before Berkheimer’s fateful order. Gordon Food Service did not notify REKM or any other clients of the complaints, representatives from the processor admitted during discovery. 

If consumers cannot trust a company’s bona fide statements about their products as true, Stokar reasoned, then companies would have near insurmountable immunity from injuries resulting from fraudulent advertising. Labels such as “boneless” set a consumer’s expectations, Stokar said, just as labels like “dairy-free” and “gluten-free.”

“The seller sets the expectation of the marketing, and to hold otherwise leads us down a path of absurd results of injury wherein consumers could not reasonably guard against the injurious substance,” Stokar said. 

If the court accepts that as true, Justice Pat DeWine said, then how far would the rule go? Would every instance of bone fragment found in a filet of fish have to go before a jury, he asked, mentioning that the word “filet” means a boneless cut of meat.

T. Patrick Byrnes, attorney for Gordon Food Service and Wayne Farms, argued before the court that whether the meat was advertised as “boneless” mattered much less than the “common sense” notion that chickens have bones. The point of advertising food as boneless isn’t to communicate to consumers not to expect any bone fragments, he said, but rather to communicate the type of cut of meat they will eat.

“Common sense has to come in,” Byrnes said. “It’s not a magical warranty that this is bone-free. It’s: Do you want the traditional wings, or do you want more of a chicken nugget?”

Byrnes further argued that allowing Berkheimer’s case to go to trial would not improve Ohio case law – or consumer safety. Restaurants would simply remove the word “boneless” from their menus to protect against liability, he said.

In Berkheimer’s eyes, Stokar said, there is no way to interpret “boneless” other than that it means the meat in question contains no bones.

If the court sides with Berkheimer, the question of whether he should have expected bone fragments in his boneless wing will be decided by a Butler County jury.