Giannotti v. Beleza Hair Salon, Inc.

• Decision Date: 16 March 2009
• Docket Number: No. A08A1728.,A08A1728.
• Citation: 296 Ga. App. 636,675 S.E.2d 544
• Parties: GIANNOTTI et al. v. BELEZA HAIR SALON, INC. et al.
• Court: Georgia Court of Appeals

675 S.E.2d 544

296 Ga. App. 636

GIANNOTTI et al. v. BELEZA HAIR SALON, INC. et al.

No. A08A1728.

Court of Appeals of Georgia.

March 16, 2009.

Andrew Craig Desautel, for appellants.

Sharon Elizabeth Andrews, for appellees.

MILLER, Chief Judge.

Hollie Giannotti ("Giannotti") and her husband, Darrell Giannotti, filed suit against Beleza Hair Salon, Inc. d/b/a Beleza Salon and Eunice Kai Amaral-Marrs ("Appellees") for personal injury and loss of consortium, alleging that Amaral-Marrs negligently performed hair coloring procedures on Giannotti, causing Giannotti to sustain chemical burns. Following trial, the jury returned a verdict for Appellees. The Giannottis appeal from the trial court's final judgment on the jury verdict, arguing that the trial court erred by (1) granting Appellees' motion to exclude the testimony of the Giannottis' expert in chemistry; (2) precluding Appellees' expert in cosmetology from offering an opinion as to whether Appellees breached a standard of care; and (3) failing to instruct the jury on res ipsa loquitur. Discerning no error, we affirm.

Viewed in the light most favorable to the jury's verdict (Vega v. La Movida, Inc., 294 Ga.App. 311, 670 S.E.2d 116 (2008)), the record shows that Giannotti is a licensed cosmetologist and knew Amaral-Marrs because both women formerly worked at the same hair salon. When Giannotti left the salon, she chose Amaral-Marrs as her stylist because she thought Amaral-Marrs did a good job. For a period of approximately five years, Giannotti saw Amaral-Marrs regularly.

On February 2, 2004, Giannotti decided to apply coloring products to her hair at home because her roots were starting to show. Giannotti applied an "all-over" color product to the roots in her "T-Section," i.e., the sides and front of the hair. Giannotti's attempt to color her roots turned her hair a brassy color, and several days later, Giannotti attempted to correct the situation by giving herself some highlights.

Thereafter, Giannotti made an appointment with Amaral-Marrs for February 16, 2004 to have her hair cut and colored. Giannotti told Amaral-Marrs that she had applied coloring products at home. Amaral-Marrs decided that her first step would be to highlight the back of Giannotti's head because the back only needed highlights while the front needed highlights and lowlights. Amaral-Marrs prepared a paste comprised of a Goldwell Oxycur Platin, a Redken Clear EQ Shades Color Gloss, and a peroxide made either by Redken or Goldwell. Amaral-Marrs testified that she did not measure the products, explaining that she was taught in school that it was important to look for the correct consistency in the mixture. Amaral-Marrs placed the paste into foils that she folded into Giannotti's hair from the neck to the crown.

Once the foils were in place, Amaral-Marrs put Giannotti under a hooded hair dryer for approximately five or six minutes. At that point, Amaral-Marrs checked one or two of the foils and then put the dryer back down. When the heat reached her head, Giannotti experienced severe pain. When Giannotti told Amaral-Marrs that her head was burning, Amaral-Marrs immediately rinsed Giannotti's hair with cold water. Amaral-Marrs also gave Giannotti a cooling conditioner to apply to the affected area. Amaral-Marrs then proceeded to color the front of Giannotti's head and to cut and style Giannotti's hair. When Amaral-Marrs combed the back of Giannotti's head, Giannotti noticed long pieces of hair breaking off.

Later that day, Giannotti was still in pain, and redness was visible on her scalp. Over the next week, the pain intensified. While Giannotti was taking a shower the following Sunday, a chunk of hair came loose. The next morning, Giannotti saw a dermatologist. The doctor performed a culture of her wound, which revealed that Giannotti had developed a bacterial infection. Giannotti was referred to a rehabilitation center, where she received wound care through March 29, 2004. Following her treatment, Giannotti was left with a bald spot, which she later attempted to cover by undergoing scar revision surgery.

This case proceeded to trial in December 2007. On the first day of trial, Appellees filed a motion in limine to exclude Richard Brown, the Giannottis' expert in chemistry, or, in the alternative, to preclude him from testifying about the effects of chemicals on human skin or hair. After hearing argument from counsel, the trial court initially stated that it would grant the motion but subsequently decided to reserve its ruling until Brown could be voir dired. After hearing Brown's testimony, the trial court ruled that Brown could not testify as an expert witness.

The Giannottis called Brenda Lynda Patterson as an expert in cosmetology. Patterson was permitted to testify that the standard of care for cosmetologists includes reading and following the manufacturer's directions for chemical products. After showing Patterson a copy of the instructions for Platin lightening powder, the Giannottis' counsel twice attempted to ask Patterson whether it would violate the standard of care to apply heat when the product instructions state that additional heat sources are not required. The trial court, however, sustained Appellees' counsel's objections to the question.

1. The Giannottis claim that the trial court erred in precluding Brown from testifying as an expert at trial altogether and, further, that Appellees' motion in limine should have been denied as untimely. We disagree.

(a) Admissibility of Brown's testimony. OCGA § 24-9-67.1, which governs the admissibility of expert testimony, provides, in relevant part:

If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:

...

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

OCGA § 24-9-67.1(b). "The ... admissibility or exclusion of expert testimony rests in the broad discretion of the [trial] court...." (Footnote omitted.) Cotten v. Phillips, 280 Ga.App. 280, 283, 633 S.E.2d 655 (2006). We find no abuse of discretion here.

Brown holds a masters degree in forensic chemistry and, at the time of trial, was employed as a forensic microscopist. Brown's company was engaged primarily in identifying the chemical components of various materials and identifying the materials' sources. Brown did not devote significant time to studying toxicology as an undergraduate or in graduate school; he has not published any articles relating to the health effects of chemicals on humans or human hair since 1986, when he published an article on detecting illicit drugs in blood and urine; and as a forensic chemist, he has not made any presentations on the health effects of chemicals on humans or human hair. Given these facts, established during voir dire, the Giannottis' counsel offered to stipulate that Brown was not a toxicologist and would not offer toxicological opinions. Likewise, on appeal, the Giannottis concede that the trial court did not err in refusing to qualify Brown as a toxicologist and in excluding him from giving opinions regarding the effect of chemicals on human hair and skin.

The Giannottis claim, however, that Brown should have been allowed to testify on the "identification and characteristics of the hair coloring products" and "the observed interactions" of chemicals in laboratory tests conducted by Brown. Brown tested certain hair coloring products by mixing them together to form a paste or cream, putting the mixture on a glass slide, and heating the slide on a hot stage to between 110 and 120 degrees Fahrenheit.¹ Brown admitted that he had not precisely replicated the paste or cream Amaral-Marrs used on Giannotti's hair but explained that this was because Amaral-Marrs had not testified about the exact ratio of ingredients. Brown further admitted, however, that prior to his deposition, he did not perform any tests using a 20 volume peroxide although Amaral-Marrs had testified that she used 20 volume peroxide on Giannotti's hair. He also used a brand of peroxide that Amaral-Marrs testified that she did not use. Brown also admitted that the reaction of chemicals to hot air versus direct heat, such as that supplied by a hot stage, could be "slightly different." According to Brown, his testing showed that without the presence of heat, the reactions between the chemicals in the products progressed slowly, but once heat was added, the rate of reaction increased vigorously. Brown claimed this reaction demonstrated a mechanism by which the chemicals could have reached Giannotti's scalp.

The record does not establish that Brown utilized reliable principles and methods to test the hair products or that he applied his principles and methods reliably to the facts of the case. He conducted no tests related to the effect of hair products on human hair or skin. The tests he conducted involved a peroxide product that was not applied to Giannotti's hair, and he used a different type of heat source. Brown's...