The Ohio Supreme Court has ruled that consumers need to be aware that “boneless chicken” may actually contain bones, after a man sued a restaurant and chicken processor after an unexpected bone fragment traveled into his windpipe, causing serious health problems.
When Michael Berkheimer was eating boneless wings with parmesan garlic sauce at Wings at Brookwood in Hamilton in 2016, he knew “something was wrong.” Columbus Dispatch report.
Later that night, Berkheimer was unable to remove the food and developed a fever.
Doctors were able to remove some of the chicken bones the next day, but the ordeal left him with an infection and multiple surgeries, two medically induced comas and debilitating heart problems, his lawyers said.
“As a result of the accident he is unable to work,” said Rob Stoker, Burkheimer’s attorney. Said of The Enquirer.
Berkheimer, 65, said he can no longer play ice hockey like he did before that fateful meal.
He sued the restaurant owner and the chicken supplier and processor in 2017, but a Butler County District Court judge ruled that it was consumers’ responsibility to bear the risk that the chicken contained bones, even if it was advertised as “boneless.”
The 12th District Court of Appeals agreed before the case moves to the state Supreme Court in December 2023.
In a ruling Tuesday, the conservative justices decided 4-3 that customers should be aware of the bones in boneless chicken.
“There is no breach of duty where consumers could have reasonably anticipated and been alerted to the presence of a harmful substance in their food,” Judge Joe Deters (R-Israel) wrote in the majority opinion.
Judge Michael Donnelly (D) called the sentence “an utter Jabberwocky.”
“The outcome of this case marks yet another death knell for the American jury system,” he wrote. “In my view, the majority opinion makes factual determinations in a way that ensures that the jury has no opportunity to apply the common sense that the majority opinion lacks.”
But Deters believes boneless wings are a cooking technique and not a guarantee that they are completely boneless.
“A customer who sees ‘boneless wings’ on a menu is unlikely to believe that the dish is made with chicken wings, any more than a customer who eats ‘chicken fingers’ is likely to believe that the restaurant is guaranteeing that the dish is boneless,” the conservative justices wrote in their opinion. “A dish’s label on a menu is a description of the preparation method, not a guarantee.”
Deters doesn’t apply the same logic to food allergens, writing, “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 that consumers would typically expect or be alarmed by.”
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