McColl v. Lang
2016 MT 255
| Mont. | 2016Background
- Plaintiff Tina McColl saw naturopathic physician Michael Lang for a facial lesion; Lang applied an escharotic "black salve" twice in February 2012.
- McColl developed a deep infected burn on her nose, treated at urgent care; she later underwent plastic surgery and ongoing cosmetic injections.
- McColl sued alleging Lang breached the naturopathic standard of care; she also alleged black salve is an unapproved drug and pointed to FDA warnings.
- Before trial, the district court excluded evidence of the FDCA prohibition and FDA warning letters about black salve as irrelevant and unfairly prejudicial.
- The court admitted Lang’s expert (Dr. Hangee-Bauer), a licensed naturopathic physician, to testify about the applicable standard of care.
- A jury found Lang breached the standard of care and awarded McColl $139,500 but unanimously denied punitive damages; McColl appealed the evidentiary rulings and sought a new trial on punitive damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of FDCA prohibition and FDA warning letters about black salve | Evidence of FDCA violation and FDA warnings were probative of malice and relevant to punitive damages | FDCA/FDA materials concern manufacture/marketing of drugs (regulated by FDA), not the practice of medicine; irrelevant and prejudicial | Exclusion affirmed — evidence irrelevant and unduly prejudicial because Lang did not sell/market/manufacture black salve and the FDA does not regulate medical practice |
| Admissibility of defendant's expert (Dr. Hangee-Bauer) on standard of care | Expert was not qualified regarding use/discharge of black salve and should be excluded | Expert is licensed, treats facial lesions, and by education/experience is familiar with the applicable standard of care; specific experience with a product is not required | Denial of motion to exclude affirmed — expert satisfied §26‑2‑601 and M.R. Evid. 702 requirements; expertise in the exact procedure/product not necessary |
Key Cases Cited
- Cartwright v. Scheels All Sports, Inc., 310 P.3d 1080 (Mont. 2013) (abuse of discretion standard for evidentiary rulings)
- Sandman v. Farmers Ins. Exchange, 969 P.2d 277 (Mont. 1998) (substantial evidence review of jury denial of punitive damages)
- Seltzer v. Morton, 154 P.3d 561 (Mont. 2007) (definition of substantial credible evidence and review deference)
- Beehler v. Eastern Radiological Assocs., P.C., 289 P.3d 131 (Mont. 2012) (expert need not have performed the specific procedure to testify on standard of care)