Ohio's highest court rules boneless chicken wings can have bones

COLUMBUS, Ohio (WCMH) – Consumers who order boneless chicken wings should expect the possibility of bones, the Ohio Supreme Court ruled. 

In a 4-3 ruling, Republican Ohio Supreme Court justices Joseph Deters, Sharon Kennedy, Patrick Fischer and Patrick DeWine ruled bones are a natural part of chicken, so consumers should be on guard for them – even in wings labeled as "boneless."

In April 2016, Michael Berkheimer went to the Butler County restaurant Wings on Brookwood and ordered parmesan garlic boneless wings. He cut each of his wings into a few pieces before eating them. When he ate a piece of his chicken, he testified it felt like a piece of meat went down the wrong pipe.

In the following days, he experienced a fever and was unable to keep food down. He went to the emergency room, where a doctor discovered a five-centimeter chicken bone lodged in Berkheimer’s esophagus. 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 2017, Berkheimer sued the restaurant owners, as well as the chicken suppliers and processors. A Butler County Common Pleas Court trial judge sided with the companies, deciding consumers should expect bone fragments in chicken dishes, and the 12th District Court of Appeals agreed.

Berkheimer argued that the court of appeals did not consider the fact that the meal was advertised as boneless and gave no warning that a bone might be in the dish. The Ohio Supreme Court heard the case in December. 

The Ohio Supreme Court majority agreed with the lower courts. The courts used the "Allen test" to determine negligence. The method looks at whether the injurious object is natural to the food, or is a foreign substance, such as glass, wires and nails; or if diseased or infected ingredients are present. 

“Whether the substance was foreign to or natural to the food is relevant to determining what the consumer could have reasonably expected,” the opinion states. 

Since bones are natural to chicken, such as pieces of shell are natural to oysters, Berkheimer could have “reasonably expected” and “guarded against” the bone, the supreme court majority argued. 

The majority opinion also states it is “common sense” that the label was merely a description of the cooking style, not a guarantee of no bones. The dissenting opinion, consisting of Democrat justices Michael Donnelly, Melody Stewart and Jennifer Brunner, called this “jabberwocky.” 

Donnelly states a guarantee of no bones is “exactly what people think” when ordering boneless wings, pointing to the fact that dictionaries define boneless as “without a bone.”

“The question must be asked: Does anyone really believe that the parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken?” Donnelly wrote. “Of course they don’t. When they read the word ‘boneless,’ they think that it means 'without bones,’ as do all sensible people.”