                           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


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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.”


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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.




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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.


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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.




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         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


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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


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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


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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


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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

scalp.

         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.




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       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).

       2.     Analysis

       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.




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