No do-over for boneless chicken wing case, Ohio Supreme Court says

The Ohio Supreme Court voted 4-3 against reconsidering its decision on whether consumers can assume that their boneless chicken wings might contain bones.

Writing for the majority, Justice Patrick Fischer said the request for reconsideration didn't identify new points to be addressed. The case drew international headlines and became the butt of late-night comedy show jokes. Fischer, though, cautioned the court against caving to public clamor or media criticism.

Justices Michael Donnelly and Melody Stewart, two Democrats who lost their reelection bids in November, dissented and took shots at their Republican colleagues.

Donnelly said the Republicans orchestrated the desired outcome by usurping the jury's traditional role and they think anyone who disagrees with them is unreasonable. He warned that results-oriented jurists could contort words on abortion rights cases, which are likely to reach the Supreme Court.

Likewise, Stewart said the Republicans fabricated a new definition of boneless chicken to be a cooking style, which isn't based in law, fact or reality.

In July, Republicans on the Ohio Supreme Court ruled that bones are a natural part of chicken so a consumer should be on guard for them − even in boneless wings.

“There is no breach of a duty when the consumer could have reasonably expected and guarded against the presence of the injurious substance in the food,” Republican Justice Joe Deters wrote for the majority.

But Democrats on the court called that reasoning absurd. They contended that a jury, not appeals court judges, should decide whether customers should expect to find bones in boneless wings.

At the center of the case is Michael Berkheimer, who swallowed a 1.3-inch chicken bone in boneless wings, tore his esophagus and has never been the same since.

In April 2016, Berkheimer ordered boneless wings with parmesan garlic sauce at Wings on Brookwood in Hamilton. On the third piece, he felt "something go down the wrong pipe." He unsuccessfully tried clearing his throat and later that night, started to run a fever. The next day, a doctor removed the chicken bone but Berkheimer ended up with an infection and endured two surgeries.

Laura A. Bischoff is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

This article originally appeared on The Columbus Dispatch: Ohio Supreme Court won't reconsider its boneless chicken wing case