About a year and a half ago, in a ruling striking down the Ohio state version of Chevron deference, the conservative majority on the state supreme court noted that “text should be given its contemporaneous and customary meaning.” Yesterday, in a 4-3 opinion, the conservative justices decided that “boneless wings” can have bones in them.
Welcome to Buffalo Wildly Deadly Wings!
Michael Berkheimer ordered boneless wings from a restaurant and ended up swallowing a roughly 1-3/8 inch chicken bone. It tore his esophagus and caused a bacterial infection in his thoracic cavity. He sued the restaurant, the supplier, and the chicken farm. Rather than allow a jury to sort out liability, the state supreme court ruled that no jury could possibly believe a boneless wing would be free of bones.
And regarding the food item’s 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.
The majority is a bit nebulous on the limits of the “boneless” cooking style, but if you’re thinking that one of its hallmarks would be, at a minimum, a lack of bones, you would apparently be wrong in Ohio. Astoundingly, a few pages before this passage, the majority notes that the cook’s deposition testimony “explained that the boneless wings were made from pre-butterflied, boneless, skinless chicken breasts,” an odd description to include for raw chicken meat when you’re defining “boneless” as a cooking style and not a straightforward description of the boniness of meat.
The whole point of this “style” argument is to claim that the plain meaning of “boneless wing” is not that it’s boneless but that it’s made with breast meat. As though diners ordering boneless wings would be right to suspect they might be eating chunks of bone-in breast. That’s why the opinion invokes the humble chicken finger as another anatomically incorrect product. Ad bullshit ad astra.
But kudos to defense counsel. Someone over there said, “What if we contend that the word ‘boneless’ means ‘bones?’” And rather than say, “It might undermine our credibility with the court to sound like we’re fucking idiots,” the partner thought, “Hey, you miss 100 percent of the shots you don’t take!”
In dissent, the three Democratic justices deployed a far less tenuous grasp of the English language.
The majority opinion states that “it is common sense that [the label ‘boneless wing’] was merely a description of the cooking style.” Majority opinion at ¶ 23. Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing.
And sensible people still have not.
Undeterred, the majority continued to deny plain meaning after the cock crows.
[T]he court of appeals took into account that the boneless wings were prepared by cutting a chicken breast into one-inch pieces that were then fried…. In this way, the boneless wings were analogous to a fish fillet—and “‘everyone… knows that tiny bones may remain in even the best fillets of fish.’”
But note how the word “filet” is not the word “boneless.” A filet generally means the cut won’t have bones — though the term is not synonymous with boneless, since it actually refers to the technique of trying the meat before cutting it — but it moves the goalposts to willy-nilly conflate “boneless” with “filet.” While diners might be prepared for a stray bone in a filet of fish, they wouldn’t be if the restaurant instead advertised “boneless fish.”
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 the majority’s “sense of the colloquial use of language is sufficiently dulled,” concluding instead that “boneless” means “you should expect bones.”
(internal citation omitted).
Welcome to the textualism of the modern conservative legal movement!
The only “contemporaneous and customary” that matters are the contemporaneous and customary policy aims of the Republican Party. Want to protect businesses from lawsuits? Boneless means bones. Want to strike down the federal mask mandate? “Sanitation” doesn’t include “sanitary face masks.” Want to let Donald Trump handle nuclear codes from Mar-a-Lago’s toilet? Then “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” means “absolute immunity from prosecution.”
It’s just an elaborate game of Balderdash except the stakes include choking to death. Whether it’s from a chicken bone or SARS-CoV-2 is academic.
And by dragging the chicken finger into this discussion against its will, the majority’s reasoning leaves the reader wondering if chomping down on the famously boneless menu item known as a “chicken finger” is even safe under this opinion. While it doesn’t use the word “boneless” — now a warning that the food might contain bones — folks generally expect chicken fingies to arrive sans bone. It’s a question with some significant implications for the parents of Ohio as the dissent highlights:
The question must be asked: Does anyone really believe that the parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? Of course they don’t. When they read the word “boneless,” they think that it means “without bones,” as do all sensible people. That is among the reasons why they feed such items to young children.
So, next time you’re in Ohio with the kids… maybe order the hot dogs. Ironically, you have a better chance of knowing what’s in them.
(Check out the opinion on the next page)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.