California federal appeals court to decide if dismissal over orientation was wrongly done in HIV drug case

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The 9th US Circuit Court of Appeals in San Francisco is scheduled to consider on September 18 if an openly gay juror was wrongly dismissed from an HIV drug pricing case.

Three judges will rule on whether or not Abbott Laboratories wrongly dismissed “Juror B,” who cannot be named. As an openly gay man who had prior knowledge of HIV drugs, and had been friends with a man who died of AIDS, defense lawyers declared him potentially biased.

Lawyers on the opposing side, pharmaceutical giant GlaxoSmithKline (GSK), are asking that the original case be reheard, and arguing that Juror B was dismissed because of his sexuality. The US Constitution bans excluding potential jurors due to race or gender; the decision could potentially open the doors to extending coverage to sexual orientation.

The multi-billion-dollar pharmaceutical case centers around contentions that Abbott Laboratories broke anti-trust laws when it raised the price of its drug Norvir, which is vital in the HIV drug regimen for many patients, by 400% in 2007. GSK has an HIV treatment regimen that, among other drugs, requires Norvir–despite Norvir being produced by a competitor. However, GSK alleges that Norvir’s increase in cost was meant to harm the launch of GSK’s treatment.

In 2011, GSK appealed the original case ruling in favor of Abbott Laboratories on the grounds that the dismissal of Juror B was discriminatory. Abbott’s lawyers maintain that he was removed not because of his orientation, but because he was the only juror who had heard of Norvir and had seen a friend die of AIDS, which they saw as potential for bias. Papers filed with the court also pointed out that orientation is not currently protected under the Constitution; jurors cannot be dismissed for biases related to their race or gender, but sexuality is not covered.

California’s Supreme Court has forbidden the unjustified removal of LGBT jurors since 2000, but the ruling doesn’t apply to federal courts, which the 9th US Circuit Court of Appeals is.

University of California professor Vik Amar told Pink News, “It’s a big deal. The headlines from this case aren’t going to be about antitrust law—it will be about sexual orientation in the jury pool.”

429Magazine

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