An Ohio man sued over a bone in his boneless wing. Ohio's top court heard the case
In April 2016, Michael Berkheimer ordered boneless chicken wings tossed in parmesan garlic sauce as he had done many times before at a restaurant he frequented.
He cut the wings up into thirds with his knife, per his routine, and began eating. After the final bite of the second boneless wing, he felt something wrong in his throat.
It was a bone.
The fateful meal at Wings on Brookwood in the city of Hamilton, about 30 miles north of Cincinnati, launched a court case that has lasted six years. It also left Berkheimer with debilitating injuries, according to his attorney.
The Ohio Supreme Court heard arguments in the case Tuesday. The case has raised questions about who is responsible for injuries from a bone in something advertised as boneless. The restaurant? The farm where the chicken came from? The processing plant? The customer?
The Butler County Court of Common Pleas and the Ohio Court of Appeals ruled against Berkheimer and found it's up to the eater to be on guard for any wayward bones in meat. Berkheimer has appealed to the highest court in the state.
Berkheimer, through his appeal, has asked the Supreme Court to kick it back to the lower court so a jury, not a judge, can decide what risks a customer can reasonably expect from a boneless wing.
Bone led to infection, heart condition
Life for Berkheimer has never been the same, his attorney told The Enquirer.
"As a result of the accident, he can't work," his attorney, Robb Stokar, said. He worked in quality control for the aerospace industry, his attorney said.
Berkheimer, 65, also can't play ice hockey as he did before that meal in 2016.
The bone lodged in Berkheimer's esophagus tore his throat and caused an infection that required multiple surgeries, two medically-induced comas and left him with lasting heart and lung damage, according to court documents related to the lawsuit Berkheimer filed against the restaurant in 2017.
'There was no warning'
Stokar said Berkheimer, of Hamilton, wouldn't be available for an interview as the case works its way through the courts.
For the plaintiff, the argument is boneless means no bones. If an "injurious substance" is claimed by a business to not be in the product, the consumer has a reasonable expectation to not encounter the substance, Stokar told The Enquirer.
"There was no warning," Stokar said. "The wait staff didn't warn him. There were no signs in the restaurant."
This met with skepticism on Tuesday from Justice Pat DeWine, who asked about previous cases where restaurants were found not liable for bones in fish filets and shell fragments in oysters.
"Most people know there aren’t such things as chicken without bones out there," DeWine said.
Before the justices on Tuesday, Stokar argued the case differs from previous cases where restaurants were found not liable for bones in fish filets or shell fragments in oysters. Boneless is a stronger statement, Stokar said.
"There's no other way to interpret it," Stokar said on Tuesday before the Supreme Court. Menus with boneless chicken wings should have an asterisk and a warning that it may contain bone fragments, he said.
Man initially thought he choked on food
Berkheimer initially thought he had choked on a piece of food, according to court documents. After the third bite of the second wing, Berkheimer felt "a piece of meat went down the wrong windpipe," according to court documents.
He went to the bathroom where he attempted to vomit and clear his throat, according to court filings. Unable to get relief, he left the restaurant.
Berkheimer fell increasingly ill over the next three days and was admitted to the hospital on the third day with a high fever. Doctors found and removed a chicken bone lodged in his throat. In court filings, the length of the bone was estimated between 1.3 inches and 2 inches.
Berkheimer sued Wings on Brookwood. He also sued the restaurant's food supplier and the farm where the chicken was processed.
Restaurant: Bones in meat a natural thing
The owner of Wings on Brookwood, as well as attorneys for the restaurant, food manufacturer and farm, did not respond to messages seeking comment.
The restaurant and manufacturers argued in pleadings that while the wings were advertised as boneless, the presence of bones in meat is natural.
The trial court and appeals court agreed. Butler County Common Pleas Judge Noah Powers II ruled in February 2022 that the "mere presence of a chicken bone in a boneless wing is not negligence."
"While one would hope to not find a piece of bone in their boneless chicken wings, bones are a natural part of a chicken and hence a consumer should be on guard against the possibility of encountering one," Powers wrote in his decision.
In a filing with the court, Wayne Farms, the Oakwood, Georgia-based company where the chicken was processed, stated the company provided 1.2 million pounds of boneless chicken to the food distributor in the case during the first four months of 2016. The two companies received seven complaints in that time, none of which involved Wings on Brookwood.
Berkheimer's attorney, through filings with the court, has argued that a business is in the best position to determine whether something potentially harmful has been removed. When a business makes such a claim that something isn't present in food, it's reasonable for the customer to expect it's not there, his attorneys wrote in a brief to the Supreme Court.
"Therefore, sellers, not the consumer, should bear primary responsibility when those representations turn out to be false," they wrote.
Patrick Byrnes, an attorney for Wayne Farms, told the Supreme Court on Tuesday that taking the word "boneless" off menus in Ohio wouldn't improve Ohio law and would lead to more confusion.
"It’s a boneless chicken wing," Byrnes said. "Common sense has to come in. It’s not a magical warranty that this is a bone-free (wing). Do you want the chicken wings or more of a chicken nugget?"
This article originally appeared on Cincinnati Enquirer: Man injured by chicken wing bone pleads case before Ohio Supreme Court
