Exclusion of gay juror forces new U.S. trial between GSK, Abbott

by Reuters
Tuesday, 21 January 2014 18:31 GMT

By Dan Levine

SAN FRANCISCO, Jan 21 (Reuters) - GlaxoSmithKline Plc deserves a new trial against Abbott Laboratories because Abbott impermissibly excluded a potential juror based on his sexual orientation, a federal appeals court ruled on Tuesday.

The case involved Abbott's pricing of HIV medications, a controversial issue in the gay community. Glaxo accused Abbott of improperly hiking the price of one drug, Norvir, to help it preserve sales growth of one of its other HIV blockbusters, Kaletra.

Glaxo sought hundreds of millions of dollars in damages, but the jury returned a mixed verdict in 2011 with Glaxo winning on some claims but losing on others. It awarded Glaxo $3.5 million.

However, GSK appealed the lower court's decision to allow Abbott to exclude the juror, and the 9th U.S. Circuit Court of Appeals unanimously ruled that the constitution prohibits jury strikes based on sexual orientation.

"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," 9th Circuit Judge Stephen Reinhardt wrote.

Glaxo spokeswoman Mary Anne Rhyne said the company is pleased with the ruling. An Abbott representative could not immediately be reached for comment.

During jury selection in an Oakland, California, federal court, a potential juror discussed his partner by using the masculine pronoun "he" several times. The juror also said he did not know whether any of his friends were taking the medications at issue in the case.

Abbott's attorney sought to exclude the juror, and Glaxo objected, saying that Abbott was attempting to use a peremptory challenge in a discriminatory way. However, U.S. District Judge Claudia Wilken allowed Abbott to exclude the juror.

In its ruling on Tuesday reversing Wilken, the 9th Circuit cited a recent U.S. Supreme Court decision striking down the federal law that defined marriage as between one man and one woman.

Juror strikes based on sexual orientation "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," wrote Reinhardt, the 9th Circuit judge.

The case in the 9th Circuit is Smithkline Beecham Corp dba GlaxoSmithKline vs. Abbott Laboratories, 11-17357.

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