McColl v. Lang

McColl v. Lang, 2016 MT 255 (Oct. 11, 2016) (McGrath, C.J.) (5-0, aff’d)

Issue: (1) Whether the district court abused its discretion in granting Lang’s motion to exclude certain evidence, and (2) whether the district court abused its discretion in denying McColl’s motion to exclude the testimony of Lang’s expert witness.

Short Answer: (1) No, and (2) no.


Facts: Lang is a licensed naturopathic physician. McColl saw Lang in 2012 and discussed a blemish on her nose that she wished to remove. A month later, McColl returned to Lang’s office where he applied black salve, an escharotic agent, to the blemish on McColl’s nose. Lang sent her home with instructions to return. A few days later, McColl returned and Lang reapplied black salve. A few days later, McColl went to urgent care complaining of facial swelling and burning, and was diagnosed with an infected third-degree burn to her nose, which was 4 mm deep and the size of a dime. McColl had plastic surgery to repair the damage in April 2012, and McColl continues to require surgical injections twice a year.

McColl filed a complaint against Lang, alleging black salve was an unapproved new drug, the marketing of which violated the Food, Drug and Cosmetic Act (FDCA), and that as early as 2008 the FDA had identified it as a fake cancer cure and warned consumers not to use it. Before trial, Lang moved in limine to exclude evidence relating to the FDCA prohibition and the FDA warning letters about black salve as a cancer cure. Lang argued the prejudice of the evidence outweighed its probative value, asMcColl’s complaint did not address the manufacturing, marketing or sale of black salve, and Lang hed not been trying to cure cancer with the black salve. The district court granted the motion.

McColl moved in limine to exclude testimony from Lang’s expert, Dr. Hangee-Bauer, claiming Dr. Hangee-Bauer was not an expert in black salve. Lang contended Hangee-Bauer was an expert in the practice of naturopathic medicine, not the use of a specific product. The district court denied McColl’s motion.

Procedural Posture & Holding: At trial, the jury found that Lang departed from the standard of care, causing McColl $145,347 in damages. The jury unanimously denied punitive damages, finding that McColl failed to prove by clear and convincing evidence that Lang acted with actual malice. McColl accepted a check for the amount of the judgment, then filed a notice of appeal herein. The Supreme Court affirms.

Reasoning: (1) The FDA does not regulate the practice of naturopathic medicine. Lang did not sell, market or manufacture black salve in violation of the FDCA prohibition, and McColl does not allege that Lang used the black salve to treat her for cancer. The FDCA prohibition and FDA warning letters were irrelevant, and the district court did not abuse its discretion in excluding them.

(2) Under Montana law, Dr. Hangee-Bauer must be licensed by at least one state, routinely treat the type of condition at issue, facial lesions, and have the education and experience to be familiar with the standards of care and practice as they relate to Lang’s treatment of McColl. Because he met all of these requirements, the district court did not abuse its dicretion in denying McColl’s motion to exclude Dr. Hangee-Bauer’s testimony.