Injured man still wants justice after court decides boneless wings can legally contain bones

HAMILTON, Ohio (WXIX/Gray News) - After years of legal battles, the Ohio Supreme Court ruled last week that boneless wings can legally contain bones.

The case began eight years ago after Michael Berkheimer ordered boneless wings at Wings on Brookwood in Hamilton.

“I was eating with a fork and knife,” Berkheimer said. “I cut it and then, have you ever had something go down the wrong pipe?”

Berkheimer said the bone, which was part of a wishbone, became lodged in his throat and punctured his esophagus. Everything he ingested then started exiting through the hole and into his chest cavity, which caused an infection.

“I had bacteria buildup in my chest cavity the size of a softball laying on my heart,” Berkheimer said.

He said the infections led to fevers, a heart attack and a collapsed lung. He was placed in a coma twice. He sued the restaurant and its suppliers citing negligence.

Rob Stokar, Berkheimer’s attorney, said the judge dismissed their first suit. They appealed and it eventually landed in the Ohio Supreme Court eight years later.

“The rulings to date have been, as a matter of law, Mr. Berkheimer should have reasonably expected and guarded against the bone,” Stokar said. “Our position, at all three levels, is that’s wrong and it’s up to a jury to decide.”

The owners of Wings said they were glad the case was over and they hoped the decision would protect small businesses from “frivolous lawsuits.”

State Sen. Bill DeMora objected to the court’s decision and said Berkheimer should have had his day in court. He said he’s introducing new legislation to ensure anyone in a similar circumstance can state their case to a jury.

“It was outrageous,” DeMora said. “It lacked all common sense. Instead of appeal judges making the decision, now, people would get their day in court.”

Berkheimer said he would support anything that could change the process.

“It just traumatized me,” Berkheimer said. “It’s taken joy from my family. Thank God for the Lord and my wife or else I wouldn’t have been here.”

DeMora said he’s asked the Legislative Service Commission to draft a potential bill. He said the Ohio legislature wouldn’t take action before November.