Sexual Orientation No Basis to Block Jurors

Lawyers may not block potential jurors simply because they are gay, a federal appeals court held Tuesday in an antitrust case over pricing of HIV medication.

The 9th U.S. Circuit Court of Appeals held that “equal protection prohibits peremptory strikes based on sexual orientation” and the panel remanded the case for a new trial.

The dispute began during jury selection in a 2011 antitrust trial in which Abbott Labs used a peremptory challenge to remove a juror who disclosed he had a male partner.

The opposing lawyer from Glaxo SmithKline Beecham objected, arguing it was impermissible to bar a potential juror based on sexual orientation.  The trial judge rejected the challenge.

Glaxo sued Abbott Labs claiming antitrust, contract violations and unfair trade practice in a licensing agreement and pricing of HIV medication, which raised considerable controversy in the gay community.

“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,” wrote Judge Stephen Reinhardt for the panel.

In an odd twist, the potential juror in the case said he worked for the 9th Circuit.  He said he was a computer technician in San Francisco and revealed during questioning that his “partner” studied economics and investments.  During follow-up questions, the prospective juror referred to his partner three times as “he” and said he had friends with HIV.  But the juror also said he had no knowledge of the medicans, Norvir, Kaletra and Lexiva, which were subject of the antitrust trial.

Abbott’s attorney struck the juror and the Glaxo attorney immediately objected because it appeared to be based on the juror’s apparent homosexuality.

Existing case law already bars exclusion of jurors based on race, ethnicity or gender.  When a minority juror is struck the lawyer must explain the non-discriminatory basis for striking the juror.

The trial judge said it was unclear the law also applied to sexual orientation.  She added, “There is no way for us to know who is gay and who isn’t here, unless somebody happens to say something.”

At the end of a four-week trial, the jury returned a mixed verdict.  It favored Abbott on the antitrust claim and sided with Glaxo on the contract claims.  It awarded $3.4 million in damages to Glaxo.

Abbott appealed the contract verdict.  Glaxo also appealed seeking a new trial.

“There is reason to infer that Abbott struck Juror B on the basis of his sexual orientation because of its fear that he would be influenced by concern in the gay community over Abbott’s decision to increase the price of its HIV drug,” said Reinhardt.

“Here we have no difficulty concluding that GSK has raised an inference of discrimination,” he said.  Abbott also declined to provide any justification for its strike, he said.

Reinhardt applied the U.S. Supreme Court’s 2013 precedent in Windsor, which struck down the portion of the Defense of Marriage Act that discriminated in the tax treatment of a widowed lesbian.  He said Windsor “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”

Case:  Glaxo SmithKline Beecham v. Abbott Laboratories, No. 11-17357





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