Kenser v. Premium Nail Concepts, Inc.
2014 MT 280
| Mont. | 2014Background
- Kenser operated a Lewistown nail salon from 1998 to 2009 and used PNC’s liquid acrylic nail product since 1999.
- She developed facial boils, rashes, and respiratory issues starting in 2008; diagnosed as a sensitization to EMA, a PNC ingredient.
- Kenser filed workers’ compensation claim in 2009 and a products liability suit against PNC in 2010.
- A five-day trial in 2013 resulted in a verdict for PNC; district court issued multiple discretionary rulings before and during trial.
- Kenser appealed; PNC cross-appealed regarding punitive damages; the Court remanded for retrial on Kenser’s appeal and did not reach cross-appeal.
- Key disputed rulings included ‘safe as used’ evidence, cross-examination limits on industry-use testimony, jury instructions, and missing instruction on skin contact prevalence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion by allowing ‘safe as used’ evidence | Kenser: ‘Safe as used’ implies misuse; evidence confuses and prejudices the jury. | PNC: evidence is admissible to show product safety when used as intended. | Abused discretion; error in admitting the evidence. |
| Whether the court abused discretion by limiting cross-examination on skin contact | Kenser: cross-examination needed to show industry-wide skin contact; essential to rebut safety evidence. | PNC: cross-examination not necessary since use was foreseeable and not a misuse defense. | Abused discretion; cross-examination should have been allowed. |
| Whether the court abused discretion in instructing the meaning of ‘safe as used’ | Kenser: instruction misdefined the term and misstated law. | PNC: instruction appropriately framed ‘safe as used’ as related to ingredient incorporation, not user behavior. | Abused discretion; instruction wrongly defined the term. |
| Whether the court abused discretion by not instructing that skin contact is common | Kenser: jury should be told skin contact occurs commonly in the industry. | PNC: evidence on industry practices is improper or irrelevant after summary judgment on misuse. | Abused discretion; should have given the skin-contact instruction. |
| Whether punitive damages issue should be resolved on retrial | Kenser: punitive damages may be supported if malice or reckless disregard shown. | PNC: punitive damages should be resolved, or the issue dismissed, depending on evidence at retrial. | Retrial required on punitive-damages issue; cross-appeal not reached. |
Key Cases Cited
- Hart-Albin Co. v. McLees, Inc., 264 Mont. 1, 870 P.2d 51 (1994) (foreseeability defeats misuse defense when injury is foreseeable)
- Lutz v. Nat’l. Crane Corp., 267 Mont. 368, 884 P.2d 455 (1994) (misuse defense depends on foreseeability)
- State v. Michaud, 2008 MT 88, 342 Mont. 244, 180 P.3d 636 (2008) (evidence labeled as scientific may be given weight; cross-examination essential)
- Malcolm v. Evenflo Co., 2009 MT 285, 352 Mont. 325, 217 P.3d 514 (2009) (cross-examination to attack expert testimony weight)
- Edie v. Gray, 2005 MT 224, 328 Mont. 354, 121 P.3d 516 (2005) (reviewing jury instructions for full and fair informing of law)
- Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, 357 Mont. 293, 239 P.3d 904 (2010) (standard for evaluating jury instructions on law applicable)
- Jacobsen v. Allstate Ins. Co., 2009 MT 248, 351 Mont. 464, 215 P.3d 649 (2009) (gears review of evidentiary rulings; abuse of discretion standard)