NUMBER 13-09-00462-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
J.C. PENNEY CORPORATION, INC., D/B/A J.C. PENNEY STYLING SALON, Appellant,
v.
YOLANDA GONZALEZ-ALANIZ, Appellee.
On appeal from the County Court at Law No. 2 of Cameron County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Vela Memorandum Opinion by Justice Benavides
By two issues, appellant J.C. Penney Corporation, Inc., d/b/a J.C. Penney Styling
Salon (“J.C. Penney”) contends that: (1) the trial court abused its discretion when it denied J.C. Penney‟s motion to exclude the testimony of appellee‟s expert witness,
Nancy Heupel King; and (2) there was insufficient evidence at trial to support findings of
negligence and damages against J.C. Penney. We affirm.
I. BACKGROUND
On May 6, 2005, appellee, Yolanda Gonzalez-Alaniz, traveled with her mother
and children to the J.C. Penney Styling Salon in Harlingen, Texas, for a hair
appointment. Yolanda had been a regular customer of hairstylist Cyndia Robles
Ybanez, who had worked at this salon since 2003. At this appointment, Yolanda
planned to have the roots of her hair lightened and her hair styled.
A. Yolanda’s Testimony
At trial, Yolanda testified that she had to wait for her appointment to begin
because her stylist, Cyndia, was running late. When Cyndia finally arrived, she
escorted Yolanda to her station and proceeded to the back of the salon to pour and mix
the hair solution to lighten Yolanda‟s roots. Yolanda testified that she had a history of
sensitive scalp issues and that Cyndia knew, or should have known, about her hair
condition given their mutual history.
Yolanda testified that she immediately started to feel a burning sensation when
Cyndia applied the hair solution to her scalp. According to Yolanda, when she informed
Cyndia about the burning, Cyndia replied, “ah, don‟t worry, girl, it‟ll go away.” When
Yolanda complained again, another J.C. Penney salon employee, Andy Gonzalez, told
Yolanda that her scalp would “numb up” in five minutes. Yolanda reported that her eyes
2 were watering and the inside of her nose started to burn. She continued to complain
about a burning sensation and Cyndia handed her a magazine to get her “mind off of it.”
According to Yolanda, at this point Andy asked Cyndia if she had reviewed
Yolanda‟s “traveler” sheet before mixing the hair solution. J.C. Penney Styling Salon
manager Celeste Ybanez established that a traveler sheet is a form generated by J.C.
Penney that tracks a customer‟s salon history. It reports “the customer‟s name, the
date they went by, what service they were getting done[,] and it‟s separated by certain
sections, [such as] lab history [and] comments.” All chemicals used during a session
must be reported on the traveler sheet. Celeste explained that a stylist will write down
what service they provided to the customer, what product they used, and how long they
processed the customer‟s hair. The next day, a receptionist inputs the information into
J.C. Penney‟s computer system.
Yolanda testified that Cyndia did not look at her traveler sheet before mixing her
hair solution. Yolanda insisted that Cyndia rinse the solution from her scalp
immediately. Cyndia took Yolanda to the sink but then allegedly applied more solution.
At this point, Yolanda testified that she “took [Cyndia‟s] hands off and . . . said [„]no, get it
off „cause it‟s really burning.[‟] I was in a lot of pain and my head was hurting me and
pounding.” Yolanda testified that Andy then approached with her traveler sheet and
asked, “Did you put BioSilk on her?,” to which Cyndia replied, “I didn‟t.” As Cyndia
washed the solution off her head, Yolanda recalled that she said, “[O]h, girl, I think I‟m
going to have to take you to the hospital,” and “[d]on‟t worry, girl, I‟ll make it up to you.”
3 Yolanda testified that she paid for her service but did not file an incident report because
she was emotionally upset and just wanted to leave the salon. She also claimed that
she did not want to get Cyndia into trouble. She remembered Andy saying, “make her
sign a waiver” as she walked out of the salon.
In her lawsuit, Yolanda claimed that she suffered from blistering on her scalp,
migraines, loss of appetite, and that her hair fell out where the solution had been applied.
She did not seek medical treatment for two weeks because she “thought [her symptoms
were] going to go away,” and treated her blisters at home with Neosporin and took
Tylenol for pain. She eventually visited Alison Garza, M.D., a primary care physician.
Dr. Garza treated Yolanda for “small vesicular lesions” due to “an allergic reaction of the
scalp secondary to hair coloring received on May 6, 2005.” Dr. Garza‟s records
indicated that she also noted that Yolanda‟s nostrils were “fiery red.” Dr. Garza
prescribed Rogaine for the hair loss. Two days later, when Yolanda called Dr. Garza
complaining of continued headaches, Dr. Garza told her to go to the hospital. The E.R.
doctor, according to hospital records, diagnosed Yolanda with chronic cephalgia and
basogangleus lesions on her scalp. Yolanda subsequently visited a neurologist, Miguel
A. Gutierrez, M.D., who diagnosed her with migraines. Dr. Gutierrez treated Yolanda‟s
migraines with Topamax. Dr. Gutierrez later referred her to Stanley Fisher, M.D., a
neurologist in Houston. Dr. Fisher opined that Yolanda suffered from generalized
anxiety disorder.
4 B. Nancy Heupel King’s Testimony
King testified as Yolanda‟s expert witness. During trial, King stated that she
regularly employed hairstylists, manicurists, and aestheticians as a salon owner in the
state of Maryland for ten years. While a salon owner, she became involved with the
Board of Cosmetologists in Maryland and was eventually appointed Chairman of the
Board. King further testified that she has written laws and rules regarding cosmetology
for all fifty states and has helped prepare some of the national exams that states offer for
persons seeking cosmetology licenses. She was a cosmetology exam development
and subject-matter expert for the Texas Department of Licensing and Regulations from
1998 until 2006. King is also a contributing author and editor of the Milady Standard for
Cosmetology, which the most commonly-used textbook in cosmetology courses. She is
not, however, a licensed cosmetologist in any state. She has licenses in Colorado,
Arizona, and Maryland as a nail technician or manicurist.
King testified that salon owners are responsible for ensuring that their employees
have valid licenses and that they work within the standards of practice for the scope of
that license. She also stated that it is important for licensed cosmetologists to receive
regular training and evaluations. She testified that “cosmetologists should know what
harmful ingredients are in the products” they use, explaining that “that doesn‟t mean that
they‟re expected to be a chemist, but they need to know which chemicals in what
products need to be used . . . so that they are in fact safe.” King also testified that it is
crucial that employees know what material safety data sheets, or MSDS sheets, are.
5 According to King, cosmetologists working with chemicals “should have read the MSDS
sheet for the product and they should be familiar with the safe use and handling and the
potential hazards from that product‟s use or misuse.” Cosmetologists should also know
the difference between disinfection and sanitation. Sanitation, she explained, referred
to cleaning the surface debris of cosmetology tools. Disinfection, on the other hand,
dealt with the removal of bacteria and germs on tools.
King opined that salon employers should ensure that their employees know where
the MSDS sheets are, should hire qualified employees, and should provide regular
trainings and evaluations.
C. Cyndia’s Testimony
Cyndia, the hairstylist who worked on Yolanda, graduated from the National
Career Institute in Harlingen, Texas, in 1994. She testified that she is licensed as a
cosmetologist in the State of Texas and began working for J.C. Penney in 1998.
During her trial testimony, Cyndia admitted that she did not know the meaning of
the acronym MSDS when her deposition was taken, but that she did, in fact, know what
material safety data sheets were. She explained that MSDS sheets contained
information on “safety, the ingredients on hair products, what to do if the hair product is
swallowed or if it falls in your eye, what procedures.” Cyndia also admitted that she did
not know the difference between sanitation and disinfection when asked about it during
her deposition.
6 With regard to Yolanda, Cyndia testified that she did not know what chemicals or
ingredients were in the hair solution applied to Yolanda‟s hair. In fact, Cyndia did not
recall anything out of the ordinary when she treated Yolanda that day. She did not
remember Yolanda‟s scalp blistering, swelling, turning red, or Yolanda making any usual
statements about burning. She did, however, testify that she wrote “Alert: very
sensitive” for Yolanda‟s traveler sheet after she did Yolanda‟s hair that day, and that it
was rare for her to put “alerts” on her customers‟ files. She did not feel that the event
with Yolanda warranted an incident report, though. During her direct examination,
Cyndia also did not agree that a cosmetologist should know what harmful ingredients
comprise hair products.
D. Andres (Andy) Gonzalez’s Testimony
Andy, a licensed barber, has worked at the J.C. Penney Salon for eighteen years.
Andy explained that most permanent hair colors contain chemicals, such as ammonia or
hydrogen peroxide, and that some clients are allergic or sensitive to these chemicals.
In these situations, Andy explained that semi-permanent hair colors like BioSilk are used
because they do not contain these chemicals and, thus, will not aggravate a client‟s
scalp.
Andy had colored Yolanda‟s hair before in 2004, and recalled that she had a
sensitive scalp: “She told me that she had problems with permanent color, that she was
very sensitive, so that‟s when I started prescribing for her the semi-permanent color.”
Andy also said that he knew what MSDS sheets were: “that‟s the information that gives
7 you what to do in case one of your clients comes in contact with a chemical . . . those are
always kept in the front desk where you have access to the information to see what
needs to be done if you have that problem.” Andy testified that he remembered when
Yolanda came in May of 2005 and that her scalp was not red, swollen, or blistered after
the solution was applied. He also did not remember her saying that the solution was
burning. Finally, he denied that he asked Yolanda to sign a waiver before she left the
salon on the day in question.
E. Melissa Garcia Villarreal’s Testimony
Melissa was the receptionist at the J.C. Penney Styling Salon. She testified that,
the day after Yolanda‟s salon appointment, she entered Cyndia‟s notes onto Yolanda‟s
official “traveler” sheet on the J.C. Penney computer system. Melissa stated that
Cyndia‟s note, which stated “Alert: Very sensitive, use 9A energy, 20 dry and 15 cool,”
was the first time in fourteen years she had ever seen the word “alert” used on a traveler
sheet. She also testified that if she had seen or heard anything unusual on the day of
Yolanda‟s appointment that she would have reported it.
A jury found for Yolanda and awarded her $20,362.00 in actual damages and
$20,000.00 for her physical pain and mental anguish, for a total of $40,362.00. This
appeal ensued.
II. DISCUSSION
A. The Expert Testimony of Nancy Heupel King
By its first issue, J.C. Penney argues that the trial court should have excluded the
8 testimony of Yolanda‟s expert, Nancy Heupel King. The trial court denied J.C.
Penney‟s Daubert/Robinson motion to strike King and allowed her to testify.
1. Standard of Review and Applicable Law
The standard of review to determine whether a trial court properly allowed King‟s
expert testimony is the abuse of discretion standard. Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998); E.I. du Pont du Nemours & Co.,
Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). The test for abuse of discretion is
whether the trial court acted without reference to any guiding rules or principles such that
the ruling was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241-42 (Tex. 1985). A reviewing court cannot conclude that a trial court
abused its discretion simply because the reviewing court would have ruled differently.
Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989).
A person can be qualified as an expert based on their knowledge, skill, training,
experience, or education. Gammill, 972 S.W.2d at 718; see TEX. R. EVID. 702.
Experts can testify about scientific, technical, or other specialized subjects if the
testimony would assist the trier of fact to understand the evidence or determining a fact
issue. Gammill, 972 S.W.2d at 718; see TEX. R. EVID. 702.
2. Analysis
J.C. Penney filed a “Daubert/Robinson Objection to the Testimony of Plaintiff‟s
Designated Expert Nancy King Heupel and Motion to Strike or Limit Testimony.” In its
motion, J.C. Penney first argued that King is a licensed manicurist and not a licensed
9 cosmetologist. Thus, J.C. Penney argued that King did not have the knowledge, skill,
training, or experience to testify about hair styling services, and specifically hair coloring.
Gammill, 972 S.W.2d at 718; Robinson, 923 S.W.2d at 556; see TEX. R. EVID. 702.
They asserted that “just as a medical doctor without experience and training in a
specialized area of medicine cannot properly give opinion critical of a doctor in that area,
Ms. Heupel, with no training or licensure in hair services[,] should not be permitted to
give opinion on the provision of such licensed services.” See Broders v. Heise, 924
S.W.2d 148 (Tex. 1996) (finding an emergency room physician was not qualified to opine
about the standard of care provided by board-certified neurologists on a patient with a
craniocerebral brain injury).
Counsel for Yolanda countered that King was offered as an expert in salon
management and safety standards, not as an expert on hairstyling services. At the
hearing on the Daubert/Robinson motion, Yolanda‟s counsel stated that King would
testify about “standards for a hair salon,” which would include minimum requirements for
training employees and safety measures. King‟s credentials in cosmetology included
her work as a salon owner, her years as a consultant writing laws and license
examinations for various state boards of cosmetology (including Texas), and
co-authoring and editing a standard textbook on cosmetology.
Our review of the record reveals that King discussed that salon employers should
ensure that their employees know where the MSDS sheets are, hire qualified
employees, and provide regular trainings and evaluations. King also opined that
10 cosmetologists should work within the scope of their licenses, receive regular training
and evaluations, know which chemicals and harmful ingredients are in the products they
use on customers, and know where material safety data sheets are located. King‟s
testimony did not appear to focus on the specifics of hairstyling or hair coloring, as J.C.
Penney contends. Rather, it focused on the duties of an employer and her opinion that
J.C. Penney breached its duty as a salon because Cyndia should have been trained to
refer to the MSDS sheet when Yolanda complained about burning sensations on her
J.C. Penney also argued that King‟s “methodology” was flawed because she
focused on issues that were not germane to the case, such as the fact that Cyndia did
not know the difference between “sanitation” and “disinfection” when questioned about it
during her deposition. This, J.C. Penney argued, created an “analytical gap” in King‟s
testimony because King‟s opinion “relied largely upon alleged deficiencies of . . .
[Cyndia‟s] knowledge and application of salon sanitation, disenfection [sic], and
sterilization regulations . . . none of which have anything to do with the type of hair color
being used or whether that hair color gave [Yolanda] an allergic reaction.” We disagree
with this characterization of King‟s testimony. Rather than creating an “analytical gap”
in her expert opinion, as J.C. Penney argues, this testimony buttresses King‟s opinion
that J.C. Penney hired an employee who may have lacked training in some basic
cosmetology skills and knowledge.
11 In light of King‟s actual testimony, and the fact that J.C. Penney (not Cyndia) was
the named defendant in this case, we cannot say that the trial court abused its discretion
when it allowed King to testify. See Downer, 701 S.W.2d at 241-42. King‟s testimony
focused on salon management and safety issues, not on hairstyling or hair coloring.
We overrule this issue.
B. Sufficiency of the Evidence
1. Standard of Review
We may sustain a legal sufficiency challenge only when (1) the record discloses a
complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact; (3) the
evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence
conclusively establishes the opposite of a vital fact. See King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003). In determining whether there is legally sufficient
evidence to support the finding under review, we must consider evidence favorable to
the finding if a reasonable fact finder could and disregard evidence contrary to the finding
unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802,
807, 827 (Tex. 2005).
In reviewing an appellant‟s factual sufficiency challenge to an adverse jury finding
on which the other party had the burden of proof, we will consider all of the evidence in
the record, both in support of and contrary to the finding. See Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001). We will set aside the district court‟s finding
12 only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Where there
are disputed issues of fact, we give deference to the fact-finder as they are the “sole
judges of credibility of the witnesses and the weight to be given to their testimony.”
Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex. 1993).
By its second issue, J.C. Penney argues that Yolanda failed to prove negligence
or an award of damages by legally or factually sufficient evidence. With regard to
negligence, Yolanda‟s testimony clearly differs from the testimony of J.C. Penney
employees Cyndia, Andy, and Melissa. Yolanda testified that Cyndia was running late
to her appointment and failed to review Yolanda‟s “traveler sheet” before she began to
mix hair solution to lighten Yolanda‟s hair. The failure to review the traveler sheet is
significant because this document details previous services and products used on the
customer. In this case, the traveler sheet would have revealed that BioSilk, the
semi-permanent solution, was the product typically used on Yolanda‟s hair because of
her sensitive scalp. Despite the traveler sheet documentation and Cyndia‟s history with
Yolanda as a long-time salon client, Cyndia failed to use the semi-permanent Biosilk
solution. Instead, Cyndia used a permanent solution that contained ammonia and
peroxide. A jury could have considered this oversight as evidence of negligence.
Further, after Yolanda reported feeling a burning sensation on her scalp and her eyes
began to water, the jury heard testimony that Cyndia responded, “ah, don‟t worry, girl, it‟ll
13 go away.” They also heard that when Cyndia was rinsing Yolanda‟s hair, she said,
“[O]h, girl, I think I‟m going to have to take you to the hospital,” and “Don‟t worry, girl, I‟ll
make it up to you.” A jury could have determined that a reasonable salon stylist would
not have reacted in such a manner.
In contrast, we note that none of the J.C. Penney employees recalled this version
of the events. Cyndia and Melissa vaguely recalled Yolanda on this day, and Andy
recalled the day but stated that he did not remember Yolanda complaining about any
burning and did not see her scalp red or blistered. However, it is within the province of
the jury to settle conflicts among the evidence and the credibility of the witnesses, and
the jury believed Yolanda‟s version of the events. See Jaffe Aircraft Corp, 867 S.W.2d
at 28. We will not substitute our judgment for that of the jury‟s. Because there is more
than a scintilla of evidence to support the jury‟s finding on negligence, we hold that the
evidence was sufficient to support a negligence finding. See King Ranch, Inc., 118
S.W.3d at 751.
With respect to damages, Yolanda pleaded and testified about suffering from
blisters on her head, migraines, a loss of appetite, and hair loss. During trial, Yolanda‟s
counsel also submitted medical records from Dr. Garza. Dr. Garza‟s records
documented “small vesicular lesions” due to “an allergic reaction of the scalp secondary
to hair coloring received on May 6, 2005” two weeks after her salon treatment; noted that
Yolanda‟s nostrils were “fiery red”; and show that Rogaine was prescribed for hair loss.
The record additionally revealed emergency room records where an emergency-room
14 physician diagnosed Yolanda with chronic cephalgia and basogangleus lesions on her
scalp; records from neurologist Dr. Gutierrez who treated Yolanda‟s migraines with
Topamax; and records from Dr. Fisher diagnosing Yolanda with generalized anxiety
disorder. Although the record showed that Yolanda waited two weeks after her alleged
exposure to the chemicals in the hair solution before seeking medical treatment, this
again was a fact issue to be decided within the province of the jury. See Jaffe Aircraft
Corp, 867 S.W.2d at 28. In light of Yolanda‟s testimony about her immediate injuries
following her salon appointment and the medical records admitted into evidence, we hold
that the jury‟s award of damages was supported by sufficient evidence. The finding of
damages is not so contrary to the overwhelming weight of the evidence as to be clearly
wrong and manifestly unjust. Cain, 709 S.W.2d at 176. We overrule J.C. Penney‟s
second issue.
III. CONCLUSION
Because we have overruled both of J.C. Penney‟s issues, we affirm the judgment
of the trial court.
________________________ GINA M. BENAVIDES, Justice
Delivered and filed the 26th day of May, 2011.