Could it really be lawful to dismiss a juror solely based on their sexual orientation?
This is the hot-button legal question before the Ninth Circuit Court of Appeals, but it comes from the most unlikely of cases: a battle between two rival pharmaceutical companies.
The wider case centers on whether Abbott Laboratories (hereafter referred to as Abbot) broke the law when in 2007 it increased the price of its important AIDS drug Norvir by 400 percent. Norvir wasn’t a big seller for Abbot but it was and still is used in small doses in HIV drugs made by other companies. Abbot, at the same time, had been pushing its own more comprehensive HIV drug, Kaletra, which was designed to compete with other HIV drugs on the market.
Competitor GlaxoSmithKline (hereafter referred to as GSK) subsequently brought a suit claiming this was a clear attempt to undermine the launch of its own HIV treatment which relied on Norvir, and to push patients toward using Abbot’s own Kaletra.
All that, however, has become just a backdrop. Here’s why: prior to the trial Abbot, like its competitor, was provided the opportunity to file challenges against the potential juror pool and Abbot chose to do so against one juror known to the public as Juror B.
Abbot claimed that as an openly gay man, Juror B might have a bias in this AIDS drug case, and in particular because Juror B had known someone who had died of AIDS. Indeed, many in the gay community were angered enough by the increase in drug costs like the Norvir increase to stage protests, but there is no evidence that Juror B was among those who did so.
During the course of this court battle, GSK has filed a number of challenges, including the appeal we are talking about today that Abbott unlawfully discriminated against Juror B by dismissing him on grounds of his sexuality — this, they contend, is enough to have the case (which they lost in the first instance) retried.
A three-panel selection of judges from the Ninth Circuit Court of Appeals heard arguments in this appeal on Wednesday.
During that hearing, Abbot contended that while the above is true, Juror B’s sexuality wasn’t technically the reason they sought his dismissal: rather it was the fact that his friendship with a man who died of AIDS might reasonably have been thought to influence his decision in a case centering around what is by any standards a massive cost increase on a life saving AIDS drug. But even if they had dismissed Juror B on grounds of his sexuality, Abbot argued, it is at present a legal form of discrimination.
While California’s State Supreme Court has since 2000 routinely treated sexuality as not being a valid reason to dismiss a juror, the Supreme Court of the United States has only reserved special protection for two classes: race and gender. There is no explicit barrier in the federal courts, therefore, to dismissing someone on grounds of sexuality.
Still, the legal landscape surrounding gay rights has shifted a lot this year and the appellate court asked what effect the U.S. Supreme Court’s striking of DOMA Section 3 might have on the case.
Unsurprisingly, Abbot has claimed it has no effect because discrimination in marriage rights has no connection to jury service even if the Supreme Court did specifically note gay people are a disenfranchised and discriminated against class. GSK argues the ruling has very clear import, though: that discrimination on grounds of sexuality is wrong and was, in the case of Juror B, unlawful.
GSK are joined in their legal fight by rights group Lambda Legal, who contend: “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.”
The Ninth Circuit Court of Appeals gave no indication on which way it might rule this week, but the case is being seen as an important one.
A conservative ruling might see the court simply dismiss the challenge on grounds that it was Juror B’s personal relationships but not his sexuality that were the salient factor behind his dismissal, as Abbot has outlined in court documents.
Alternatively, the Ninth Circuit might find there was a violation in this case and decide to clarify that sexual orientation should be given class protection, an avenue already hinted at by previous rulings such as its assertions in the Proposition 8 case and other such rulings. The Ninth Circuit’s word on that would unlikely be final though, with the Supreme Court of the United States seeming almost certain to have the final word on this one sooner rather than later.
One could argue that even if there was no intended discrimination here, though, the law needs to be clarified because the possibility that jurors might be being dismissed solely on grounds of their sexual orientation could severely undermine confidence in the judicial process.
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