COLUMBUS, Ohio (WCMH) – The Ohio Supreme has stood by its viral ruling that boneless chicken wings can have bones, voting against reconsidering the case.
In July, the Ohio Supreme Court ruled bones are a natural part of chicken, so consumers should be on guard for them – even in wings labeled as “boneless.” The ruling came after a man named Michael Berkheimer got a bone stuck in his throat after eating a “boneless wing” and attempted to sue the restaurant that served it to him. The court’s ruling prevented Berkheimer from receiving a jury trial.
Berkheimer asked the court to reconsider its decision, to which it handed back the same ruling last week 4-3 with a Republican majority, mirroring the vote in the original case. Writing for the majority, Justice Patrick Fischer said Berkheimer’s “straightforward” motion did not identify new points to be addressed and that he would vote to deny any motion for reconsideration that “merely reargues a case.”
The court’s July decision drew national headlines and online criticism. Late Show host Stephen Colbert called the ruling “hot legal garbage” in August.
“Courts must not be influenced or swayed — in any way — by the press,” Fischer wrote. “We are not courts of public opinion. We are courts of law.”
Fischer was joined by justices Joseph Deters, Sharon Kennedy, Patrick Fischer and Patrick DeWine. Democrat justices Michael Donnelly, Melody Stewart and Jennifer Brunner dissented from the majority.
Donnelly and Stewart were ousted from their seats in the November election, when the courts Republican majority jumped from 4-3 to 6-1. Brunner’s seat will be up for election in 2026.
In the new ruling, Donnelly said the majority’s opinion was “rightfully” subjected to ridicule and that they orchestrated their desired result by usurping the jury’s transition role.
“Months ago, this court received unprecedented media attention after it issued an opinion in what should have been a simple negligence case,” Donnelly wrote. “In short, if the public cannot trust the judiciary to be faithful in small things — like whether 'boneless' can reasonably be understood as not including bones — how can the judiciary be trusted with greater things?”
In April 2016, Berkheimer went to the Butler County restaurant Wings on Brookwood and ordered 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 his 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 last December and agreed with the lower courts.
