Because A Pharma Case Over AIDS Meds Judges Ponder About Gay Jurors

                                                             

                                                                          1905

The appeals court in San Francisco gave little indication Wednesday whether a potential juror can be booted from a trial solely because of sexual orientation.

The 9th U.S. Circuit Court of Appeals listened to an hour of legal arguments on the issue from lawyers representing two rival drug companies embroiled in an antitrust dispute.

Ostensibly, the case is a SmithKlineBeecham appeal of a 2011 jury verdict mostly in favor of Abbott Laboratories over whether Abbott broke antitrust laws when it raised the price of a popular AIDS drug by 400 percent.

But what the three judges of the appellate panel were most interested in was the question of whether a potential juror can be removed from a case because of sexual orientation. At the end of the hour of arguments, it was unclear which way the judges were leaning.

The issue started at the beginning of the 2011 trial between the two companies when an Abbott Laboratories lawyer booted a juror who identified himself as gay from serving on the trial. SmithKline argued the juror's removal was done because of the widespread negative publicity that Abbott's 2007 price hike received in the gay community. Abbott denied the allegation and said it had several reasons to remove the potential juror, which included a friend dying of AIDS.

Much of Wednesday's proceeding consisted of highly technical legal arguments over the role in the jury debate of the U.S. Supreme Court's decision to strike down portions of a federal law barring benefits for same-sex couples.

The three judges, a few of the most politically liberal on the court, seemed unsure. On one hand, the U.S. Supreme Court struck down portions of the Defense of Marriage Act as "demeaning" to gays, suggesting the justices meant to give heightened legal protection to gays. On the other hand, Judge Marsha Berzon asked how lawyers and judges vetting prospective jurors could know of their sexual orientation without invading their privacy.

"What is the practicality of all of this?" asked Berzon. "This only applies when someone self-identifies."

Berzon was appointed by President Bill Clinton. She was joined on the panel by Mary Schroeder and Stephen Reinhardt, two appointees of President Jimmy Carter. Reinhardt wrote the 9th Circuit opinion striking down California's marriage ban.

The case arises from SmithKline's antitrust lawsuit filed in 2007 when Abbott hiked the price of Norvir, which SmithKline also uses in its new treatment.

A jury in 2011 ruled mostly in Abbott's favor, saying the company didn't hike the price out of malice. SmithKline appealed. Among its many detailed arguments for a new trial is the fact that an Abbott lawyer had the gay juror removed from the jury pool, allegedly because of his sexual orientation.

The court is expected to rule at a later date.

"It's a big deal," said Vik Amar, University of California, Davis professor. "The headlines from this case are not going to be about antitrust law — it will be about sexual orientation in the jury pool."

Before trials, lawyers for both sides are allowed to use several "preemptory challenges" to remove someone from the jury pool without legal justification.

Abbott argued it bounced "Juror B" for three reasons, none having anything to do with his sexual orientation. Lawyers said they felt the juror's impartiality was compromised because he was the only potential juror who had heard of the SmithKline treatment in question, that he was also the only prospective juror who had lost a friend to AIDS, and that he worked for courts.

The U.S. Supreme Court in 1986 prohibited lawyers from using their challenges to remove a potential juror from a case because of race. Eight years later, the high court added gender to the prohibition of potential jurors lawyers can reject without a legal reason.

But the high court has never ruled on sexual orientation. The California Supreme Court has barred the removal of gays from jury pools without justification since 2000, but its rulings aren't binding on federal courts.

Gay rights organization Lambda Legal and 11 other groups filed a "friend of the court" brief arguing sexual orientation should receive the same treatment as race and gender during jury selection.