On a Friday night, a Butler County man, joined by his wife and friends, went to a casual restaurant he frequented. He ordered his usual “boneless chicken wings.” He swallowed a sliver of a nearly 2-inch chicken bone. It tore his esophagus, which led to internal infections that damaged his heart and lungs.

He sued the restaurant and the producers of the boneless wings and lost. The trial court ruled that meat eaters should be on the lookout for bones in meat dishes.

Michael Berkheimer isn’t the first to fail to recover damages for harm caused by an unsuspected substance in a  food order. Others whose food lawsuits have failed in Ohio courts include consumers who bit into:

• A bone in a boneless chicken breast sandwich.
• A bone in a chicken gordita.
• A pig bone in a sausage, egg, and cheese bagel.
• Shells in fried claims, pistachio ice cream, and a pecan cookie.
• A cherry pit in a cherry pie.

The Supreme Court of Ohio established the legal rules for deciding a food injury case in 1960. The lawsuit dealt with a large piece of shell in a fried oyster. Berkheimer argues that much has changed over the last 60 years in marketing substance-free foods with labels such as boneless, gluten-free, and lactose-free. The law has evolved to protect consumers from unsuspected objects in their food, he notes. However, lower courts in Ohio still rely on an outdated test that shields food producers from liability, he alleges.

During oral arguments next week, the Supreme Court will consider Berkheimer’s assertion that if Ohio courts were truly applying a “reasonable expectation test” in a manner similar to many courts around the country, consumers hurt by unsuspected natural objects in their food would have a better chance of prevailing.

Wing Eater Feels ‘Something Go Down Wrong Pipe’
In April 2016, Berkheimer ordered boneless wings with parmesan garlic sauce at Wings on Brookwood. The restaurant prepares its wings by cutting up “pre-butterflied boneless skinless chicken breasts” supplied by Gordon Food Service. Berkheimer had a habit of eating his wings with a fork and knife and cutting the wings into three pieces. After eating the third piece, he said he felt “something go down the wrong pipe.” He went to the bathroom and unsuccessfully tried to clear his throat.

Later that night, he started to run a fever, and the next day, he went to the emergency room. A doctor removed the chicken bone, which had lodged in and torn Berkheimer’s esophagus. The tear led to an infection, which required two surgeries and resulted in ongoing damage to his heart and lungs.

In 2017, Berkheimer filed a lawsuit in Butler County Common Pleas Court against REKM, the owners of Wings on Brookwood. He also sued the chicken suppliers Gordon Food Service and Wayne Farms. A lengthy legal battle ensued, resulting in the trial court granting summary judgment to the sellers. The trial judge wrote that while one would hope not to find a bone in a boneless wing, bones are a natural part of a chicken, and a consumer needs to be on guard against the possibility of encountering one.

Berkheimer appealed to the Twelfth District Court of Appeals, which affirmed the decision.

Berkheimer appealed to the Supreme Court, which agreed to hear the case.

Court Not Using New and Improved Food Injury Test, Diner Maintains
Courts in the United States have used two tests to determine fault in food injury cases, Berkheimer explains. The first, developed by the California Supreme Court in 1936, is known as the “foreign-natural test.” Under that test, sellers can be liable for injuries when foreign objects, such as metal, are found in food products. But there is no liability for food products containing substances natural to that type of food when it is in its original state, such as a chicken bone in a chicken breast.

Later, other courts adopted what is known as the “reasonable expectation test.” Ohio adopted the test in its 1960 Allen v. Grafton decision. Under this test, a court considers the surrounding circumstances, including how the food was prepared and what representations the seller made in its marketing. Then, the court asks whether a consumer reasonably should have expected and guarded against a specific injury from the substance at issue.

Berkheimer argues the Allen decision discussed the older foreign-natural test. Since then, many Ohio lower courts have actually repackaged the foreign-natural test, only to make it sound like they were using the reasonable expectation test. He maintains that approach is what the Twelfth District and the trial court did in his case by ruling Berkheimer should be on guard for a bone in a chicken dish even if it is marketed, priced, and sold as if the bones had been removed. Under a true reasonable expectation test, a jury should be given all the surrounding facts of the situation to determine whether a consumer should reasonably be expected to guard against such a threat, Berkheimer asserts.

Right Test Accurately Applied, Sellers Say
The restaurant, chicken meat producer, and supplier counter that Ohio courts faithfully apply the reasonable expectation test and conclude that consumers should expect and guard against possible natural substances found in their food, like a chicken bone in chicken meat.

The wing sellers argue that courts aren’t confused about how to apply the reasonable expectation test, but rather, Berkheimer just wants a different outcome for his case. The food companies explain that in the Allen decision, the Supreme Court referenced the foreign-natural test and noted that while a court shouldn’t always excuse a seller from causing an injury, a substance that is normally found in food in its natural state should be considered an “important factor.”

In all the cases, from boneless chicken sandwiches to cherry pie, the courts have considered the naturally occurring substances to be an important factor in assessing what a consumer should reasonably expect, the sellers assert. In those cases, courts have found it was reasonable for a pie eater to guard against an accidental pit, meat eaters to guard against bones, and so on. Berkheimer’s case is no different, the sellers conclude.

Watch Oral Arguments Online
Along with Berkheimer v. Wings on Brookwood, the Court will hear three other cases on Tuesday, Dec. 12 at the Thomas J. Moyer Ohio Judicial Center in Columbus. In its last oral argument session scheduled for 2023, the Court will hear four more cases on Wednesday, Dec. 13. Oral arguments begin each day at 9 a.m. The arguments will be streamed live online at supremecourt.ohio.gov and on the Ohio Channel, where they are archived.

Detailed case previews from the Court’s Office of Public Information are available by clicking on each case name.

Tuesday, December 12
Scientific Studies
At a hospital in 2014, X-rays revealed that a six-week-old brought in by his parents had 26 bone fractures. The father received a 24-year prison sentence for child endangering and felonious assault. In 2021, the father asked the Medina County trial court for permission to file a motion for a new trial, based on scientific studies published after his trial showing that genetic and metabolic conditions can cause unexplained fractures in infants. The court denied his request without a hearing. In State v. Grad, the father contends that because the studies couldn’t have been submitted at his trial, he is entitled to a hearing. The prosecutor responds that the study authors were on the defense witness list for the trial and the defense knew of the theories then. This case tests when a scientific advancement can be submitted as new evidence after a conviction.

Utility Vehicle Exception
A man attending a 2020 party in Sandusky County took three people for a ride in a Polaris, a vehicle with a bench front seat and a flat surface bed in the back for hauling. The driver lost control of the vehicle on a dirt trail, and one of the passengers was hospitalized. The driver was convicted for aggravated vehicular assault and operating a vehicle under the influence of alcohol. The appeals court overturned the vehicular assault conviction, finding that the Polaris is a utility vehicle, which is excluded in state criminal statutes from being a motor vehicle. In State v. Fork, the Court will determine whether the “motor vehicle” definition in the criminal laws invalidates the vehicular assault conviction if a person is driving a utility vehicle.

Passenger Search
In August 2021, Licking County law enforcement saw a minivan parked at a convenience store that was seen traveling through an area known for drug trafficking. A man they suspected of selling drugs was standing by the driver’s side door. As an officer searched him, a woman exited the store and put her hands through the minivan’s passenger-side window. She tried to return to the store, but the officer ordered her to sit on his cruiser bumper and put the two purses she was carrying on the hood. After finding cocaine in the man’s pockets, he searched the woman’s purse and discovered methamphetamine. In State v. Hale, the Court will consider whether the search of the woman’s purse violated her constitutional rights.

Wednesday, December 13
Teacher Evaluations
A teacher in Kent was notified in 2020 that his one-year contract might not be renewed. Before a decision could be made, the school district had to complete at least three formal evaluations of the teacher. On the May date of the third evaluation, the teacher said he awoke with heart pains and was hospitalized. His doctor told him not to return to work until June 1. To meet its deadline, the school district conducted the third evaluation while the teacher was out. He was notified that his contract wouldn’t be renewed. In Jones v. Kent City School District Board of Education, the school board maintains that districts can decide how to evaluate teachers and that the teacher didn’t need to be present for the last evaluation. The teacher counters that formal observations necessitate the teacher’s presence.

Postconviction Relief
A Cuyahoga County man pleaded guilty to aggravated murder in January 2021. He didn’t immediately file a direct appeal of his case, which he needed to do by February 2021. Instead, he received court permission to file a delayed appeal in June 2021. The man also challenged his conviction by filing a petition for postconviction relief in July 2022. The man’s delayed appeal failed, and his postconviction case was dismissed when an appeals court ruled that he missed the February 2022 filing deadline. In State v. Dudas, the Court will decide if state law requires that a postconviction relief petition must be submitted within one year after a direct appeal deadline.

Searches Without Warrants
While surveilling a Cincinnati house in May 2020, police followed a man who got into a van after leaving the house. Officers saw a hand-to-hand exchange between the van window and a parked car. Police stopped the van, and the man from the house was arrested. Officers went to the house and talked with the resident, who was handcuffed. They conducted a protective sweep of the interior and noticed a safe on the third floor. After receiving the resident’s consent to search the house, officers seized the safe. It contained items that implicated the man who had been pulled over in the van. He was sentenced for drug possession and trafficking offenses. In State v. Jones, the Court will review whether the sweep and search of the house was constitutional.

Public Records
Union Township in Clermont County distributes a quarterly newsletter both in paper and through email to those who voluntarily subscribe to receive an electronic version. One subscriber suspected a discrepancy in the delivery, and that some people weren’t getting the emailed newsletters. He made a public records request for the township’s newsletter mailing address and email distribution lists. The township denied the requests, finding that address lists aren’t considered public records under state law because they don’t ”serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the township.” In Hicks v. Union Township, the Court will consider if the lists, as used by the township, are public records which document “activities of the township.”