Ohio’s Supreme Court digs into lawsuit from a diner injured by a bone in “boneless wings”

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COLUMBUS, Ohio (Statehouse News Bureau) — Should the sellers of food that’s advertised to be free of bones, shells, lactose or some specific substance be responsible if it’s not? That’s the question before the Ohio Supreme Court, which is deciding a seven year old lawsuit involving boneless chicken wings.

Ohio State Supreme Court building
The State Supreme Court building. [Dan Konik | Statehouse News Bureau]
Tenders, filets, fingers, nuggets – all came up in the case of Michael Berkheimer of Hamilton, who sued after a chicken bone from his boneless wings tore a hole in his esophagus in 2016, leaving him with debilitating injuries.

In arguments before the court Tuesday, Berkeimer’s lawyer Robb Stokar told the justices a jury should decide if it’s reasonable to expect no bones in boneless wings, or to find something in a food that the seller said won’t be there.

“Once the advertisement and the selling of the product sets the consumer’s reasonable expectation, that’s what the consumer expects to get,” Stokar said. “They expect the boneless chicken. They expect the lactose-free milk. They expect gluten-free.”

Justice Pat DeWine had asked whether the expectation would be the same for a fish filet, but Stokar said ‘filet” isn’t as strong a description as “boneless.”

DeWine replied, “Most people know that chickens, there aren’t such things as chickens without bones out there, right? People understand that. People understand that fish have bones. So that’s a large part where their expectations come from, right?”

Berkheimer sued the restaurant Wings on Brookwood in Hamilton, the restaurant’s chicken supplier Gordon Food Service and the chicken processor Wayne Farms.

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

Justice Melody Stewart asked, “Saying something is boneless is unequivocally clear. Whether saying ‘chicken tender’ or ‘chicken strip filet’ is as clear—shouldn’t we the courts make some distinction there, depending on how the product is advertised?”

“I would suggest if Ohio is going to change the law on that, to deal with consumer class actions or consumer expectations, that is best left to the legislature to look and say, how big of an issue is this? What should we do? What are the benefits and the tradeoffs if we impose new rules?” replied Byrnes. “They have that fact finding. We don’t have any of that evidence before us.”

Two lower courts ruled in favor of the chicken sellers.