Tuesday, January 21, 2014

Striking Gay Juror in HIV Drug Case Causes Reversal - Windsor Cited

This is very interesting on many levels. This is the first case that I am aware of where United States vs. Windsor is cited for other than marriage equality issues. This establishes a powerful precedent. Via CNS, emphasis added.

Striking a gay juror from a trial over HIV drug licensing was discriminatory and requires vacating the verdict, the 9th Circuit ruled Tuesday.

In establishing that jurors cannot be overlooked based on their sexual orientation, the federal appeals court in San Francisco relied on the U.S. Supreme Court's landmark ruling against the Defense of Marriage Act, U.S. vs. Windsor.

"Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose," Judge Stephen Reinhardt wrote for the unanimous three-judge panel.


The case involved a fight between pharmaceutical companies GlaxoSmithKline and Abbott Laboratories over a licensing agreement for HIV medications. GlaxoSmithKline had accused Abbott of bad faith, breach of contract, unfair trade practices and violating antitrust laws for greatly increasing the price of its HIV drug after letting GlaxoSmithKline market the drug in connection with its own HIV medication.

After a month long trial, a federal jury in California ruled for GlaxoSmithKline on its contract claims and awarded about $3.5 million in damages. Abbot was cleared, however, as to antitrust and unfair trade practices claims.

On cross-appeal to the 9th Circuit, GlaxoSmithKline focused on Abbott's allegedly illegal peremptory strike of a potential male juror who had used the masculine pronoun "he" to refer to his "partner" when being questioned by the judge.

The appellate panel found Tuesday that "prima facie case of intentional discrimination" required reversal of the jury verdict.

Abbott claimed that it had struck the potential juror for other reasons, including that he worked for the 9th Circuit in San Francisco as a computer technician, and that it was not clear that the man was gay.

"Counsel's statement that he did not know that Juror B was gay is neither consistent with the record nor an explanation for his strike," Reinhardt wrote. "First, Juror B and the judge referred to Juror B's male partner several times during the course of voir dire and repeatedly used masculine pronouns when referring to him. Given the information regarding Juror B's sexual orientation that was adduced during the course of voir dire, counsel's statement was far from credible."
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