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Tuesday, January 21, 2014

Ninth Circuit Orders New HIV Drug Pricing Trial After Gay Juror Ousted

Posted By on Tue, Jan 21, 2014 at 9:48 AM

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A contentious anti-trust trial over pricing for HIV medications will have to start all over again, after the Ninth Circuit Court of Appeals ruled that the defendant, Abbott Laboratories, couldn't reject a juror based on his sexual orientation.

Plaintiff GlaxoSmithKline PLC had already clinched a $3.5 million verdict and prevailed on several claims that Abbott violated antitrust laws by jacking up the price of its HIV cocktail drug -- right after it licensed the medication to GSK. But the case really hinged on a brazen move that Abbott's lawyers made during jury selection, nixing a juror who self-identified as gay.

Joseph Saveri, a lawyer for one of the plaintiffs suing alongside GSK, balked at the ouster.

"The problem here, of course, Your Honor, is the litigation involves AIDS medication," Saveri told the court. "Incidents of AIDS in the homosexual community [are] well known, particularly [among] gay men. looks like Abbott wants to exclude from the pool anyone who is gay."

In their appeal to the Ninth Circuit, lawyers for GSK argued that, in light of the Supreme Court's June decision to strike down the Defense of Marriage Act, "Juror B" -- as he's dubbed in court documents -- should belong to a protected class.

Abbott's peremptory strike against the juror is not only discriminatory, but unfounded, GSK's counsel continued. During the selection process, defense attorneys asked five questions about his knowledge of HIV drugs, but didn't broach the issue of whether he'd be a biased juror by virtue of having a male partner.

The appeals court sided with GSK, ultimately turning a business lawsuit into a civil rights case. The trial, which lasted four weeks and put millions of dollars at stake, will have to start anew.

You can read the Ninth Circuit's opinion here:

Ninth Circuit Ruling GSK v. Abbott

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About The Author

Rachel Swan

Rachel Swan

Rachel Swan has been a staff writer at SF Weekly since 2013. In previous lives she was a music editor, IP hack, and tutor of Cal athletes.


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