Whose Right to Try?: Eligibility of the Severely Mentally Ill Under the Right to Try Act of 2017

I. Introduction

In May of 2018, the Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act of 2017 (“Right to Try Act”) was signed into law in order to “authorize the use of unapproved medical products by patients diagnosed with a terminal illness” as an “alternative pathway alongside, existing expanded access policies of the Food and Drug Administration [(“FDA”)]. . . .”[1]  While drafting the law, questions arose over what types of diseases and conditions would be covered by the Right to Try Act and whether those differed from existing laws allowing access to investigational drugs.[2]

Given that nearly 45,000 Americans die of suicide each year,[3] and that people with severe mental illnesses have a twenty-times higher risk of suicide than the general population,[4] such questioning by the drafters begs another: Does the Right to Try Act allow patients with severe mental illnesses access to experimental drugs absent a comorbid physical condition?

A-1 Premium Acceptance, Inc. v. Hunter

Opinion handed down October 16, 2018

A-1 Premium Acceptance, Inc. (“A-1”) gave high interest loans to Meeka Hunter in an amount totaling $800.[1]  Hunter eventually defaulted on the loans when she owed over $7,000.[2]  A-1 filed a lawsuit against Hunter and she counterclaimed.[3]  The loan contracts contained an arbitration provision that required the borrower to use the National Arbitration Forum (“NAF”) to settle disputes.[4]  However, the NAF was unable to arbitrate her dispute after it was prosecuted by the Minnesota Attorney General and required by the court to stop arbitrating commercial disputes.[5]  A-1 motioned to compel arbitration and have the court assign another arbitrator.[6]  The circuit court did not compel arbitration and the Supreme Court of Missouri affirmed because the language of the arbitration provision contemplated that the parties would arbitrate before only the NAF.[7]

State Conference of NAACP v. State

Opinion handed down October 30, 2018

On September 14, 2016, the Missouri General Assembly successfully overturned Governor Jay Nixon’s veto of House Bill 1631 (“HB 1631”).[1]  HB 1631 replaced the then-existing voter identification requirements in Missouri with more stringent standards (“Voter ID Law”).[2]  The Missouri State Conference for the National Association for the Advancement of Colored People, the League of Women Voters of Missouri, and Christine Dragonette (collectively, “Plaintiffs”), sued the State of Missouri and the Missouri Secretary of State (collectively, “Defendants”), alleging that the funding provisions of the Voter ID Law were not satisfied, and therefore the voter identification requirements should not be enforced.[3]  The Circuit Court of Cole County granted the Defendants’ motion for a judgment on the pleadings, effectuating a dismissal without prejudice of the Plaintiffs’ complaint.[4]  The Missouri Court of Appeals for the Western District reversed the judgment and remanded for further proceedings.[5]

Kelsay v. Ernst

Opinion handed down September 27, 2018

I. Introduction

            After an apparent misunderstanding at a local pool, Melanie Kelsay found herself arrested and seriously injured.[1]  She claimed a police officer used excessive force when arresting her, and she sued the officer for violating her rights under the Fourth Amendment.[2]  The officer responsible for Kelsay’s injuries moved for summary judgment, asserting qualified immunity.[3]  The U.S. District Court for the District of Nebraska held the officer was not entitled to qualified immunity.[4]  On appeal, however, the U.S. Court of Appeals for the Eighth Circuit reversed, finding the officer did not violate Kelsay’s clearly established rights under the Fourth Amendment.[5]

Shallow v. Follwell

Opinion handed down September 11,2018

The Supreme Court of Missouri issued a 6-1 opinion, holding that a trial court did not abuse its discretion when it allowed an expert witness to deviate from his deposition testimony at trial nor when it admitted five medical experts with different specialties to testify about the case.[1]

Latham v. State

Opinion handed down September 11, 2018

            I. Facts and Holding

            In 2011, David Latham was charged with and subsequently pleaded guilty to trafficking drugs in violation of section 195.223 of the Revised Statutes of Missouri.[1]  He was sentenced to fifteen years in prison.[2]  The plea court suspended the execution of his sentence, placing him on supervised probation for a period of five years.[3]  In August 2013, the plea court found Latham violated his probation and ordered execution of his fifteen-year sentence.[4]  In November 2013, after the execution of his sentence, Latham filed a pro se Supreme Court of Missouri Rule 24.025 motion for post-conviction relief.[5]  Latham’s motion alleged relief was warranted on three grounds:

(1) counsel was ineffective for failing to investigate why his preliminary hearing was waived; (2) counsel was ineffective for failing to spend sufficient time with him to defend him at the revocation hearing; and (3) counsel was ineffective in that she misled him into believing she would request long-term drug treatment at his sentencing hearing.[6]