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Gay juror's ouster forces new U.S. pharma trial

A logo of GlaxoSmithKline Pharmaceuticals Ltd company is pictured outside its headquarters in Mumbai December 16, 2013. REUTERS/Danish Siddi
A logo of GlaxoSmithKline Pharmaceuticals Ltd company is pictured outside its headquarters in Mumbai December 16, 2013. REUTERS/Danish Siddi

By Dan Levine

SAN FRANCISCO (Reuters) - A gay man was improperly excluded from jury service because of his sexual orientation, a federal appeals court has ruled, illustrating the widening influence of a key U.S. Supreme Court decision on gay rights.

The 9th U.S. Circuit Court of Appeals in San Francisco on Tuesday ordered a new trial for GlaxoSmithKline Plc against an Abbott Laboratories spinoff because Abbott excluded the potential juror.

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.

The jury returned a mixed verdict in 2011, and Glaxo was awarded far less money than it had originally sought. However, Glaxo appealed the lower court's decision to allow Abbott to exclude the juror, and the 9th U.S. Circuit Court of Appeals ruled that the constitution prohibits jury strikes because of 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 for a unanimous three-judge panel.

Glaxo spokeswoman Mary Anne Rhyne said the company is pleased with the ruling. Abbott spokesman Scott Stoffel said Abbott passed its HIV portfolio to a new company, AbbVie Inc, last year. AbbVie representative Adelle Infante said the company is evaluating its options.

The 9th Circuit on Tuesday cited United States v. Windsor, the U.S. Supreme Court decision last year that struck down part of the federal Defense of Marriage Act (DOMA). In that case, Justice Anthony Kennedy wrote that the law defining marriage as between one man and one woman violated the U.S. Constitution's guarantee of equal protection.

However, Kennedy's ruling was ambiguous on just how far gay rights protections should extend, Northwestern University law professor Andrew Koppelman said. Since the ruling was issued, judges around the country have grappled with how to apply it in a variety of gay rights cases, including rulings that permitted same-sex marriage in Oklahoma and Utah. Those cases are currently under appeal.

"The big difference between now and Windsor is a shift in the culture," Koppelman said. "Discrimination that made intuitive sense to people before doesn't make a whole lot of sense anymore."

Norvir plays a key role in AIDS-fighting cocktails because it can boost the effectiveness of other drugs. Glaxo accused Abbott of raising Norvir's price by 400 percent in 2003, as part of an effort to harm competitors whose drugs were dependent on being used in combination with Norvir.

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.

Glaxo had sought $571 million, but after a four-week trial the jury awarded Glaxo $3.5 million.

Given the legal reasoning in Windsor, the 9th Circuit held that gays and lesbians deserve the same constitutional protections during jury selection as those enjoyed by African-Americans and women.

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," Reinhardt wrote.

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

(Editing by Matthew Lewis)

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