BY PAUL ELIAS
A multibillion dollar case between two giant pharmaceutical companies grappling over arcane antitrust issues has unexpectedly turned into a gay rights legal imbroglio that raises questions over whether lawyers can bounce potential jurors solely based on their sexual orientation.
The case before the 9th U.S. Circuit Court of Appeals in San Francisco on Wednesday centers on whether Abbott Laboratories broke antitrust laws when it increased the price of its popular and vital AIDS drug Norvir by 400 percent in 2007. But broader public attention likely will be given to the three-judge panel’s look at whether Abbott wrongfully removed a juror in the case brought by competitor SmithKlineBeecham.
The cost increase angered many in the gay community. SmithKlineBeecham, meanwhile, claims it was meant to harm the launch of its new AIDS treatment, which requires use of Norvit. And the company contends “Juror B” was removed simply because he was gay.
“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” each to remove someone from the jury pool without legal justification.
For its part, Abbot 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 bounce 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 remove from a trial 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.
In July, the three appeals court judges asked the drug companies what effect the U.S. Supreme Court’s striking down of the federal ban on same-sex marriage benefits had on the antitrust case. It’s the latest high-profile gay-rights issue the court has heard. The 9th Circuit had earlier struck down California’s ban on same-sex marriages and ordered the same-sex partner of a court employee to receive the same benefits as married colleagues.
Unsurprisingly, Abbott lawyers argued that the U.S. Supreme Court’s ruling striking down a portion of the Defense of Marriage Act had no effect on its legal fight with SmithKline.
Abbott argues that the high court’s DOMA ruling doesn’t mean anything in the antitrust case because it didn’t put gays in the same class minorities and women who need special protection during jury selection. The company’s lawyers urged the judges to stay focused on the antitrust laws and procedural issues at the center of the appeal.
SmithKline is joined by gay rights activists Lambda Legal and other public interest groups who filed their own legal argument urging the court to protect gays from getting bounced from juries for no reason.
“The discrimination at issue here is particularly harmful, because it reinforces historical invidious discrimination within the court system and undermines the integrity of the judicial system,” Lambda wrote the court.