Court deciding if gay juror can be taken off case 

click to enlarge Jury selection is being scrutinized in a 2011 trial over a 400 percent hike in the price of an AIDS drug. - CHARLES REX ARBOGAST/2007 AP FILE PHOTO
  • Charles Rex Arbogast/2007 AP file photo
  • Jury selection is being scrutinized in a 2011 trial over a 400 percent hike in the price of an AIDS drug.

An appeals court 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 in San Francisco 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 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?" Berzon asked. "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 same-sex 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.

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