A jury had already weighed the plaintiff’s claims for defective manufacturing, failure to warn, and defective design in Kenser v. Premium Nail Concepts, Inc. and returned a verdict favoring the defendant.
On review, however, the state supreme court reversed, finding the trial
court abused its discretion in a number of areas, including allowing certain
defense expert witness testimony, denying the plaintiff an opportunity
to cross-examine that expert witness, and issuing several erroneous jury
Our product liability attorneys recognize that many products and practices within the nail salon industry have been deemed unsafe in recent years.
The Occupational Safety & Health Administration recently issued a detailed warning, noting the various chemical hazards in nail salons. The notice indicates salon workers in particular are vulnerable to breathing in toxic vapors, dusts, and mists. Also, harmful chemicals can get in their eyes or be swallowed if accidentally transferred to food or cigarettes.
Some of the toxic chemicals identified include:
- Butyl acetate
- Dibutyl phthalate
- Ethyl acetate
- Ethyle methacrylate
- Isopopyl acetate
- Methacrylic acid
- Methyl methacrylate (MMA)
- Quarternary ammonium compounds
In the Kenser case, the chemical in question was ethyl metacrylate, which was contained in a chemical product made by the defendant and intended for use in the application of artificial acrylic nails.
The plaintiff operated a nail salon for 11 years and during that time routinely used the defendant’s liquid acrylic nail product. Beginning in 2008, the plaintiff began to experience rashes on her skin, painful boils on her face, and difficulty breathing.
A workers’ compensation doctor diagnosed her with a sensitivity to the chemical compound in the defendant’s product.
She then filed a products liability claim against the defendant manufacturer. Following a five-day trial, jury returned a verdict in favor of the defendant. However, before, during, and after trial, the court made numerous discretionary rulings, several of which the plaintiff appealed. (The defendant also cross-appealed the court’s denial of motions for directed verdict on the issue of punitive damages.)
The state supreme court reversed and remanded the case for retrial, and thus reserved the question on punitive damages.
The specific abuses of discretion noted by the state high court were:
- The trial court allowing the defendant to present an expert witness who testified the product was “safe as used” as long as skin contact was avoided;
- The trial court denying the plaintiff the right to cross-examine the defense’s expert witnesses on the issue of whether skin contact with the product is routine in the industry;
- The trial court’s erroneous instruction on the definition of “safe as used”;
- The trial court’s refusal to instruct the jury that skin contact with the chemical in question is common for those in the industry.
Since these errors were not harmless, the state high court reversed and remanded.
The Ferraro Law Firm handles claims resulting from defective medical products or dangerous pharmaceuticals. Call 1-800-275-3332 for a free and confidential consultation. Offices in Miami and Washington, D.C.
Kenser v. Premium Nail Concepts, Inc., Oct. 21, 2014, Montana Supreme Court
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