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Striking Gay Juror in HIV Drug|Licensing Trial Deemed Unfair

(CN) - Striking a gay juror from a trial over HIV drug licensing was discriminatory and requires vacating the verdict, the 9th Circuit ruled Tuesday.

In establishing that jurors cannot be overlooked based on their sexual orientation, the federal appeals court in San Francisco relied on the U.S. Supreme Court's landmark ruling against the Defense of Marriage Act, U.S. vs. Windsor.

"Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose," Judge Stephen Reinhardt wrote for the unanimous three-judge panel.

The case involved a fight between pharmaceutical companies GlaxoSmithKline and Abbott Laboratories over a licensing agreement for HIV medications. GlaxoSmithKline had accused Abbott of bad faith, breach of contract, unfair trade practices and violating antitrust laws for greatly increasing the price of its HIV drug after letting GlaxoSmithKline market the drug in connection with its own HIV medication.

After a month long trial, a federal jury in California ruled for GlaxoSmithKline on its contract claims and awarded about $3.5 million in damages. Abbot was cleared, however, as to antitrust and unfair trade practices claims.

On cross-appeal to the 9th Circuit, GlaxoSmithKline focused on Abbott's allegedly illegal peremptory strike of a potential male juror who had used the masculine pronoun "he" to refer to his "partner" when being questioned by the judge.

The appellate panel found Tuesday that "prima facie case of intentional discrimination" required reversal of the jury verdict.

Abbott claimed that it had struck the potential juror for other reasons, including that he worked for the 9th Circuit in San Francisco as a computer technician, and that it was not clear that the man was gay.

"Counsel's statement that he did not know that Juror B was gay is neither consistent with the record nor an explanation for his strike," Reinhardt wrote. "First, Juror B and the judge referred to Juror B's male partner several times during the course of voir dire and repeatedly used masculine pronouns when referring to him. Given the information regarding Juror B's sexual orientation that was adduced during the course of voir dire, counsel's statement was far from credible."

The ruling required the panel to determine if the Supreme Court's 1986 ruling Batson v. Kentucky, which established that such peremptory strikes are subject to the equal protection clause, applies to "discrimination based on sexual orientation in jury selection."

To decide that, the panel had first to determine "whether classifications based on sexual orientation are subject to a standard higher than rational basis review."

The panel found the answer to that central question in last year's defeat of DOMA.

"In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review," Reinhardt wrote. "In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation."

He added that "Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status."

The 40-page ruling includes several pages of examples and reminders of the long history of federal and state discrimination against gays and lesbians.

"Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation's most cherished rites and rituals," Reinhardt continued. "They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently. They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.

A spokeswoman for AbbVie, the research-based pharmaceuticals company spun off from Abbot last year, said the company is "reviewing the opinion and evaluating our options." The company was represented at trial by Daniel Levin with Munger, Tolles & Olson in Los Angeles.

Lisa Blatt, of Arnold & Porter in Washington, D.C., and Brian Hennigan, of Irell & Manella in Los Angeles, represented GlaxoSmithKline. They did not immediately return a request for comment.

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