Podcast - Ohio State Senator Has a Bone to Pick with Court Ruling on Boneless Wings

Charles Weiss: Welcome to our Legal Bites podcast series. Today, we have the opportunity to sit down with Ohio State Senator William DeMora of the 25th District, which includes Columbus, Ohio. My name is Charles Weiss, and my co-host is Kristina Merritt. Senator DeMora, thank you for joining and sharing your time with us.

William DeMora: Thank you for having me. I'm excited to be here.

Charles Weiss: So before we start, I want to answer the question, "Why are you talking with an elected official on a podcast for food and drug law?" Well, as it turns out, the issue we're discussing became something of a hot button topic in Ohio based on a recent decision by the state supreme court. Specifically, and you can see the details in a post on our blog that we'll link to, this was a personal injury case in which a restaurant patron was injured quite badly by an unexpected bone in an order of what was on the menu as boneless chicken wings. The bone must have been pretty sharp because it perforated his esophagus, he had a bad infection, he was in the hospital for a while. So we are talking about a serious injury, not something to joke about. So the Ohio courts, all the way up from the trial court to the state supreme court, held that the patron's lawsuit against the restaurant and its suppliers could not get to a jury. It was dismissed on summary judgment. At the Ohio Supreme Court, the decision was 4 to 3 with the majority writing that the customer should have known that boneless chicken wings could have bones. Here's a quote.

Kristina Merritt: "Regarding the food items being called a 'boneless wing,' it is common sense that that label was merely a description of the cooking style. A diner reading 'boneless wings' on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating 'chicken fingers' would know that he had not been served fingers. The food item's label on the menu described a cooking style; it was not a guarantee."

Charles Weiss: So the reference to a cooking style in the majority's opinion reflects the fact that the boneless chicken wings here were made from chopped up breasts, not deep boned wings. That was news to me when I read the opinion, but I had never really thought about this. The dissenting opinion did not pull any punches. It was full of references to Alice in Wonderland. And here's a quote.

Kristina Merritt: "The absurdity of this result is accentuated by some of the majority's explanation for it, which reads like a Lewis Carroll piece of fiction. The majority opinion states that 'it is common sense that the label boneless wing was merely a description of the cooking style.' Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing. The reasonable expectation that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it. Instead of applying the reasonable expectation test to a simple word — boneless — that needs no explanation, the majority has chosen to squint at that word until boneless means you should expect bones."

Charles Weiss: And the reference here to the reasonable expectation test is the legal test under Ohio law for cases like this, where there is either a foreign or an unexpected item in a piece of food. In other words, what would be the reasonable expectation of the consumer? The case, by the way, is Berkheimer vs. REKM, LLC, 2024-Ohio-2787. Now, when I began writing my blog post about what I thought was going to be a pretty dry issue of tort law, I found that the decision had ignited something of a firestorm in Ohio and that Senator DeMora had spoken out strongly and said that he was exploring the possibility of remedial legislation to address this. And that, of course, is the longer answer to "Why do you have an Ohio state senator on a food and beverage podcast?" So, Senator, can you tell us how you came to engage with this case and why you viewed it as important as a public policy issue and not a case just that was important to the party?

William DeMora: Well, yeah. I mean, obviously when I heard this decision, I was stunned because my mother, my late mother was an English teacher her entire career, when I learned the word "boneless" now means "with bones," not "without bones," like the definition of bone in the dictionary, and as someone who eats both boneless wings and regular wings, it could just have been me. This could have been any Ohioan who enjoys chicken wings, whether boneless or ones with bone in them, and this person was seriously injured. And the fact that the majority of the Supreme Court, in a 4-3 decision, somehow came up with the definition of boneless being a cooking style and not actually meaning no bones, it was mind-boggling to me. And it's just something that I think needs to be addressed by the legislature. I don't know how any reasonable person can think that the word boneless means anything other than without bones. And that is what I have asked our Legislative Service Commission to draft, is legislation that would put a common sense test and allow the jury — this should have been decided by a jury, not by four members of the Supreme Court. If a jury of Mr. Berkheimer's peers would have said that, "OK, you should expect this," that would be one thing, but of course, I guarantee you they can't find 12 Ohioans that have ever eaten wings before it to think that boneless wings are going to have bones in them. And by the way, boneless wings actually cost more. I mean, if you order boneless wings, they are more expensive than regular wings and people order them and pay more because guess what? They don't have bones in them and they don't have to worry about picking the bones off. I mean, so this is a legislative matter as far as I'm concerned. It's gotten huge press across Ohio and across the country about how absurd that four members of the state can actually think that boneless wings means anything other than without bones.

Charles Weiss: So I looked to see where the restaurant is located. It's in Butler County, which is down near Cincinnati. I gather that's not near your district up near Columbus, and probably you don't know any of the parties here. Is that is that right?

William DeMora: I don't know them. I mean, Mr. Berkheimer and I have emailed back and forth because he saw me give more than one television interview when his case came out and we're trying to meet. But obviously, as you said, his health has not been good since then. He spent months in the hospital. He still can't walk long distance because it affected his breathing and everything else. So this man has been seriously injured because of this, and it was an inch and a half bone. It was not a little piece. It was an inch and a half bone that if you saw the news stories, they showed it on the news stories because Mr. Berkheimer's attorney still has this thing in a jar, an evidence jar, to show how big this thing was. So I do not know the man personally, I hope to meet him very shortly, but this is just a case of I mean, I have Ohio State University in my district. I've been eating wings since I was in college. Tuesday night was wing night at Ohio State, and I got wings almost every Tuesday night as a student at Ohio State, and I still enjoy the same wings even today. I had them last, last Tuesday. And, of course, I get mainly regular wings that have bones in them, but again, this could have been any person in Ohio, my district, any other district, someone eating a wing and thought it had no bones in it and eating a bone. So it's ridiculous. I mean, again, I don't look out for just my constituents and everything. I'm concerned about anybody in the state of Ohio now. And again, I think it's only in Ohio because I was at an event, I saw people from around the country and this was, this was a joke. People made an absolute joke and they said, "Well, Bill, I guess I'm going to come to have boneless wings in your state because I could die over them because they have the bone in them."

Charles Weiss: Yeah, I saw when I was Googling and looking for this that it was even in some of the U.K. newspapers actually. And Stephen Colbert referred to it on, on, on his show, although, as I said earlier, it's not a joke because I mean, Mr. Berkheimer here was, was badly injured by this.

William DeMora: What Stephen Colbert did was meant to be serious, but it was hysterical the way he did it, and the way he portrayed the majority decision was how I think it should be portrayed. It was an absolute joke, but it's now law in Ohio, and this Mr. Berkheimer didn't get a jury trial because of this.

Charles Weiss: Yeah. Have you heard — so obviously this has generated a lot of attention in the public in Ohio — have you heard from, from constituents or other Ohioans about their feeling on this?

William DeMora: I've heard from everybody. Like I said, I eat wings all the time, and I have friends, I mean, every tailgate I have for Ohio State football, we have, someone brings wings. And it's been an ongoing joke. The fact that only in Ohio can you get boneless wings with bones. I mean, it's, I mean, no one understands it. Regular, ordinary people. And I guarantee you if you went to the corner of Broad and High, which is the corner where the statehouse in Ohio is located in Columbus, and asked 100 people what they would expect if they got a boneless wing or a regular wing and they would tell you, well, they expect boneless wings not to have bones in them. So this is, and I've heard from lots of people, emails, again, I go to events and the people talk to me about this because it has gotten a lot of publicity, I mean, again, Ohio is a laughingstock for the decision by four members of  our Supreme Court who say that boneless means you can have bones in them. I mean, it's a joke.

Charles Weiss: Kristina, I know you have a couple of questions.

Kristina Merritt: Yes. Thank you, Charles. So, Senator, sometimes we hear about personal injury cases that people think are silly, like someone spilling coffee on themselves and suing because it was too hot. Have you heard anything along those lines?

William DeMora: No, I have not. I mean, I agree that sometimes people have always filed frivolous lawsuits, and the person that gets a hot cup of coffee at McDonald's, and spills it  in her lap and says it's too hot, that's kind of ridiculous, OK? I mean, who wants cold, unless you want to go get frozen coffee or cold coffee, when you order hot coffee, you expect it to be hot. Again, in this case though, this man was seriously injured in his esophagus and his lungs because the infection hurt his lungs by an inch and a half bone. It wasn't just some little sliver, some millimeter size bone. The bone was an inch and a half long. And I have not had anybody come up to me and say that this is something that shouldn't have been in front of a jury of the man's peers because most people think like the defendant in the case, Mr. Berkheimer, that this is ridiculous, that if you order boneless wings and pay more for them, which you do — I don't know any restaurant other than having some kind of special or deal on some night — that if you go on a regular night on the menu, boneless wings are more expensive because they don't have bones in them. So again, I think it's a very serious issue, and it could happen to anybody. And especially now if you're in Ohio and you have young children, OK, you buy them chicken fingers. Of course you never expect to have a chicken's finger in chicken fingers, that's ludicrous. And in his opinion, also just shows his lack of common sense. But now younger people who get McNuggets or any of those things that have that have no bones in them, young people, you know, what, what 4-year-old in Ohio or anywhere else in the country has not had a chicken McNugget from either Burger King or McDonald's or some other form of a fast food place because guess what? The parents buy them for one reason. They don't have bones in them. And now this is all in Ohio. This is all now up for grabs because now we don't know what they're going to put into a boneless wing or a McDonald's McNugget or stuff. So I think it has serious repercussions everywhere.

Kristina Merritt: Right. You know, so restaurants are important small businesses in just about every city and town, you know. Did you receive any pushback from your constituents who own or possibly also operate restaurants?

William DeMora: I have not. And actually, I went to a BW3 again last Tuesday to get wings and I asked them, I said, "Now, how is this boneless wing court case going to affect you?" And again, BW3 is a national chain, I get it. But the person at that BW3 says, you know, that they've got questions now, do their boneless wings really have no bones in them? So I think it actually hurt small businesses because, again, boneless wings cost more, yet a lot of people get them because of young children or because they don't want to deal with the bulge in them and they want to eat them. You can eat boneless wings with a fork as opposed to regular when you get hit with a fork because you have your hands. So boneless wings are less messy. You don't have as much waste because the boneless wings, you will eat the whole thing. So I have had nobody, no restaurant in my district or anywhere across Ohio has had any comments to me about why I'm pursuing this, because I think this is helping to protect them, because their consumers want something they can depend on. And if you can't depend on a boneless wing not to have bones in it, then I think it's going to hurt their overall bottom line.

Charles Weiss: Thank you, Senator. The way we came to end up talking with you was when I was working on this, I saw that you had talked about introducing legislation and you mentioned that earlier as well. Can you tell us more about the legislation that you're looking into with the assistance of the, with, with the staff in the Ohio State Senate? And is it about food safety or is it about summary judgment? Because, you know, as you mentioned, this case was decided by judges. It never actually got to trial. It never got to a jury. So have you made any particulars, any further thoughts about what the legislation might look like?

William DeMora: Yeah. So it's going to kind of mirror the dissent of Justice Donnelly. And what I've asked the legislature to put together deals with the standard that a judge would take in a case like this and would it be common sense or reasonable expectations and then they could just dismiss it on summary judgment. They would have to allow a jury to hear a case like this, because, again, a common sense test, or as Justice Donnelly said, a reasonable expectation test would of any regular person, would lend itself if someone had a wing that's boneless and the definition of boneless being without bones, they would have to allow this to go to a jury. So that's why I've told LSE to draft that. Would take into effect, read like regulation test of, of a regular person as well as a common sense test that the judge just couldn't summarily dismiss this just because they felt like it, that if it, if the ordinary person, when they got something like a boneless wing, would expect it not to have bones in it and it did, then the reasonable expectation that it shouldn't have a bone, and it would go to a jury.

Charles Weiss: Do you think you would get a general consensus or a majority or get this to the floor? Or do you think this would be stuck in committee? I don't know the process in the Ohio legislature the way bills advance.

William DeMora: Well, I mean, the process is that there's only seven Democrats out of 33 senators. So I usually don't get anything, I'm guaranteed one hearing of a bill that's introduced before a certain time before the session is over. And I've actually had one bill pass in the Senate. It was a bill about allowing, it was actually a bill about, about voting that was bipartisan. I think a case like this, I think I can get a few — and I have several Republican senators who are pro-small business, who are pro-business that I think would cosponsor this because, again, I think it helps small businesses who don't want to lose customers over something that's very prevalent on their menu. But again, here like we have in Ohio, both the House and the Senate, again, it's up to the whims of what the majority wants to do. And again, I don't think this is a partisan issue. This has nothing to do with Democrats, Republicans, you know. It has to do with regular, ordinary Ohioans who eat a lot of wings, who now don't know what they're getting if they order something. So I don't know. I mean, maybe I think it's maybe common sense enough that, you know, it might, it might get it, may get direction, and I'm going to introduce it before the end of session because we have a lame duck session in November after the election. And you know Katy bar the door about what happens in the lame duck session every year. This might be something that other people think, hey, you know, I agree that this is, we want to protect people and I'll give them their day in court because, again, this could be, this, give it my child, this could've been my nephew, this could've my spouse or my, or my brother or sister that ate these wings.

Charles Weiss: So I gather, Senator, this is not the kind of issue that you were thinking about when you decided to enter public service as an elected official. On the other hand, I mean, maybe it was in a, in a broader sense the kind of thing that you were concerned about.

William DeMora: I mean, when you are elected by people, your job is to look out for their interests, whether it's your district or the state as a whole. And I pride myself on trying to look out for the little guy. I mean, I'm someone who cares about the regular, ordinary Ohioan who doesn't have their own lobbyists, who doesn't have the ability to come in and testify in committee for days on end, who has to have their elected official look out for their interests. And again, I never thought I'd be dealing with a case that a boneless wing has bones in it because again, my mother, the English teacher, would have said, "Well, William, the definition of boneless wings means without bones, just look up the dictionary." So I never thought I'd be dealing with this case specifically, but again, as a public official who will meet with anybody and everybody wants to come to my office because, again, the statehouse is here in Columbus. It's a mile from my district, a mile from where I live. So people can come to the statehouse anytime they want and meet with me. I'd rather look out for them. And even though they're not my district or not. But again, this is common sense. And this affects every Ohioan because, like I said, Ohioans love their wings. And I just think that if they can't, if they can't count on McDonald's McNuggets or Cane's chicken fingers or something like that, not having bones in them, then I think that, and I think it's going to hurt everybody.

Charles Weiss: Thank you again, Senator. We've enjoyed hearing from you about this issue and exploring why it caught the public attention in Ohio and nationally and even internationally that, that it did. Any closing thoughts?

William DeMora: First of all, again, thank you for having me on today. Listen, this is, some things that we do with the government don't affect everybody or most people. This is something, unless you're vegetarian or vegan and don't eat meat at all, I can't tell you one, I can't be one of my friends, and I have lots of friends, I have tailgates every week, again since college I've been eating wings, I can't tell you one person that I know personally that hasn't had a chicken wing, whether boneless or regular wings. And I think this has become such a, it's got national attention because most people can't believe that four jurists on the state's highest court would actually say that boneless is a preparation of food and that what is not supposed to be in the food, meaning no bones. So, again, this is a common sense issue that I don't care who you're, what party you're with or you support, but we all eat wings. And if we cannot expect to get our favorite boneless wing or chicken finger or McNugget without bones in them, then I think it's going to affect all of us. And we have to now cut them all open and make sure there are, a little pieces to make sure there's no bone in them, and it's just, it's absurd. And the fact that we have to deal with it as a legislature, I think is even more absurd.

Kristina Merritt: Thank you, Senator. With that, we will wrap up things for this episode of our podcast. If any of our listeners have ideas for an episode or if you might want to be a guest, we would love to hear from you. Our guest today on Legal Bites has been Senator William DeMora of the 25th District in Ohio. Thank you.