CALIFORNIA: Pharma-Vs-Pharma Lawsuit May Hinge On Kicking Off Gay Juror

Drug giant Abbott raised the price on its HIV med Norvir by 400% in 2007, just before SmithKline launched its own combination drug that includes Norvir. Therefore, lawsuit. But the case may now hinge on whether it was legal for Abbott to challenge one of the jurors because he is gay.

"It's a big deal," said Vik Amar, University of California, Davis professor. "The headlines from this case are going to be about antitrust law — it will be about sexual orientation in the jury pool." Before trials, lawyers for both sides are allowed to use several "preemptory challenges" each to remove someone from the jury pool without legal justification.

For its part, Abbot argued, it bounced "Juror B" for three reasons, none having anything to do with his sexual orientation. Lawyers said they felt the juror's impartiality was compromised because he was the only potential juror who had heard of the SmithKline treatment in question, that he was also the only prospective juror who had lost a friend to AIDS and that he worked for courts.

The U.S. Supreme Court in 1986 prohibited lawyers from using their challenges to bounce a potential juror from a case because of race. Eight years later, the high court added gender to the prohibition of potential jurors lawyers can remove from a trial without a legal reason. But the high court has never ruled on sexual orientation.

Lambda Legal is taking the side of SmithKline.