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The Montana Supreme Court recently granted a new trial in a product liability claim stemming from an injury suffered by a nail salon operator, allegedly from the use of a liquid acrylic nail mix.
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 instructions.
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:
- Acetone
- Acetonitrile
- Butyl acetate
- Dibutyl phthalate
- Ethyl acetate
- Ethyle methacrylate
- Formaldehyde
- Isopopyl acetate
- Methacrylic acid
- Methyl methacrylate (MMA)
- Quarternary ammonium compounds
- Toluene
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:
and
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 (888) 554-2030 for a free and confidential consultation. Offices in Miami and Washington, D.C.
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