A federal appeals court in San Francisco will today consider whether an openly gay juror was wrongly removed from a pharmaceutical case involving HIV drugs.
Openly gay “Juror B,” who cannot be named, was dismissed by lawyers from a court case involving the pricing of HIV drugs. Defence lawyers for Abbott Laboratories said that his awareness of the HIV drug, and friendship with a man who had died from AIDS, made him a potentially biased juror.
Opposition lawyers for pharmaceutical giant GlaxoSmithKline, who want the original case to be reheard, argue that the man was wrongfully dismissed on the basis of his sexuality.
The decision may have wider implications on whether a constitutional ban on excluding someone from a jury due to race or gender should be extended to cover sexual orientation.
The case, which will appear before the 9th US Circuit Court of Appeals in San Francisco, was born out of a multi-billion dollar pharmaceutical case, which centres on whether Abbott Laboratories broke antitrust laws when it increased the price of its popular and vital HIV drug Norvir by 400% in 2007.
The cost increase angered many in the gay community, and competitor GlaxoSmithKline (GSK), who brought the case, claims the move was meant to harm the launch of its new HIV treatment, which requires use of Norvir.
In 2011, GSK appealed a decision in favour of Abbott, claiming that prior to trial Abbott’s lawyers struck off a juror after he revealed himself as gay, and failed to give a non-discriminatory reason for the dismissal.
The three-judge panel will decide whether Abbott wrongfully removed openly gay ‘Juror B’ from the case and, in doing so, set a precedent as to whether sexual orientation is a protected characteristic in jury service.
Abbott Laboratories contend that he was not taken off the case because of his sexuality, but because he was the only juror to have heard of the GSK drug, and had a friend that had died from AIDS.
In court papers, Abbott also argued that, for purposes of jury service, the Constitution doesn’t give gays the same protections as it gives to African-Americans and women.
Lawyers can ask for a jury member to be removed if they are considered to have a natural bias in a case, but the US Supreme Court has ruled in the past that this cannot be for reasons relating to the juror’s race or gender.
While the California Supreme Court barred the removal of gay people from jury pools without justification since 2000, the ruling isn’t binding on federal courts, where the case will be heard.
“It’s a big deal,” said Vik Amar, a professor at the University of California,
“The headlines from this case aren’t going to be about antitrust law – it will be about sexual orientation in the jury pool.”
Erwin Chemerinsky, a constitutional-law scholar and the Dean of the University of California Irvine School of Law, said: “The ability to serve on a jury is a vital aspect of US citizenship.
“Just as it’s wrong to strike a juror on the basis of race and gender, so too is it wrong for a court to discriminate on grounds of sexual orientation.”