New Trial for ViiV Healthcare/GSK; Exclusion of Gay Juror Ruled Unconstitutional

On January 21, 2014, the U.S. Court of Appeals for the Ninth Circuit issued an opinion granting a new trial in federal court for ViiV Healthcare and GlaxoSmithKline ("GSK") in a case against Abbott Labs, because a gay potential juror was improperly excluded based on his sexual orientation. In the 40-page decision, the court ruled that the Constitution prohibits jury strikes based on sexual orientation, extending a protection once reserved in federal courts for race and gender to sexual orientation.

The lawsuit stems from Abbott's misconduct in raising the price of one of its products 400 percent to the detriment of GSK and ViiV and in violation of a license agreement between the companies. Abbott's dramatic price increase was a controversial issue in the gay community at the time. After trial in 2011, a jury returned a verdict for ViiV and GSK on the contract claim but awarded only a small part of the damages shown.

During jury selection for the trial, Abbott used its first pre-emptory strike against the only self-identified gay juror in the venire. ViiV and GSK challenged the strike under Batson v. Kentucky, arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge. ViiV and GSK appealed the lower court's decision, arguing that lawyers can't exclude a potential juror solely because he or she is gay.

Brian Hennigan was one of two attorneys who argued the appeal at the Ninth Circuit on ViiV and GSK's behalf.

The case is SmithKline Beecham Corp. v. Abbott Laboratories (case number 11-17357, U.S. Court of Appeals for the Ninth Circuit).