The Montana Supreme Court has reversed a jury verdict in favor of a company that repackaged and distributed a liquid acrylic nail product, finding trial court error during the trial of product-liability claims filed by a nail salon operator who alleged permanent injury from using the product in her business. Kenser v. Premium Nail Concepts, Inc., No. DA 13-0499 (Mont., decided October 21, 2014).

The trial court had granted the plaintiff’s motion for partial summary judgment before trial, ruling that the defendant would not be permitted to argue to the jury that the plaintiff misused the product or assumed the risk of such alleged misuse, because the company had expressly acknowledged that it was foreseeable that consumers would get the product on their skin. The plaintiff had allegedly developed contact dermatitis from exposure to the ethyl methacrylate in the product, as well as asthma from inhaling it, and apparently experiences allergic reactions when exposed to any chemical in the acrylate family.

Despite its pre-trial ruling, the trial court then (i) allowed the defendant to introduce evidence indicating that the chemical was “safe as used, when skin contact is avoided,” (ii) did not allow the plaintiff to cross-examine witnesses who testified to this effect, (iii) failed to instruct the jury that it was foreseeable to the company that nail technicians would get the product on their skin and inhale the vapors, and (iv) instructed the jury that “safe as used” means the incorporation of a specific ingredient into a product, but does not refer to how the consumer uses the product. The Montana Supreme Court found that each of these rulings was erroneous and that their cumulative effect resulted in an unfair trial. The court determined that repeated references to “safe as used, when skin contact is avoided” was confusing to the jury, allowing it to conclude that users could avoid skin contact and those users who did not do so were “misusing” the product.

It also found that the trial court’s “definition of ‘safe as used’ makes little sense in the context of a products liability claim in which the concepts of use and misuse apply to the user or consumer, and not to the manner in which the seller might incorporate a component into its allegedly defective product. By introducing ‘safe as used’ into evidence and its instructions in the manner which the court did, the court erroneously injected a misuse defense back into the case after it had previously and correctly ruled that misuse was not a defense available to [the defendant].” The court declined to rule on the defendant’s cross-appeal regarding the denial of its motion for a directed verdict as to the plaintiff’s request for punitive damages.