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* Glaxo had sought $571 million, was awarded $3.5 mln
* Abbott excluded juror because of sexual orientation
* Ruling shows influence of recent Supreme Court opinion
By Dan Levine
SAN FRANCISCO, Jan 21 (Reuters) - A gay man was improperlyexcluded from jury service because of his sexual orientation, afederal appeals court has ruled, illustrating the wideninginfluence of a key U.S. Supreme Court decision on gay rights.
The 9th U.S. Circuit Court of Appeals in San Francisco onTuesday ordered a new trial for GlaxoSmithKline Plc against an Abbott Laboratories spinoff because Abbottexcluded the potential juror.
The case involved Abbott's pricing of HIV medications, acontroversial issue in the gay community. Glaxo accused Abbottof improperly hiking the price of one drug, Norvir, to help itpreserve sales growth of one of its other HIV blockbusters,Kaletra.
The jury returned a mixed verdict in 2011, and Glaxo wasawarded far less money than it had originally sought. However,Glaxo appealed the lower court's decision to allow Abbott toexclude the juror, and the 9th U.S. Circuit Court of Appealsruled that the constitution prohibits jury strikes because ofsexual orientation.
"Strikes exercised on the basis of sexual orientationcontinue this deplorable tradition of treating gays and lesbiansas undeserving of participation in our nation's most cherishedrites and rituals," 9th Circuit Judge Stephen Reinhardt wrotefor a unanimous three-judge panel.
Glaxo spokeswoman Mary Anne Rhyne said the company ispleased with the ruling. Abbott spokesman Scott Stoffel saidAbbott passed its HIV portfolio to a new company, AbbVie Inc , last year. AbbVie representative Adelle Infante saidthe company is evaluating its options.
The 9th Circuit on Tuesday cited United States v. Windsor,the U.S. Supreme Court decision last year that struck down partof the federal Defense of Marriage Act (DOMA). In that case,Justice Anthony Kennedy wrote that the law defining marriage asbetween one man and one woman violated the U.S. Constitution'sguarantee of equal protection.
However, Kennedy's ruling was ambiguous on just how far gayrights protections should extend, Northwestern University lawprofessor Andrew Koppelman said. Since the ruling was issued,judges around the country have grappled with how to apply it ina variety of gay rights cases, including rulings that permittedsame-sex marriage in Oklahoma and Utah. Those cases arecurrently under appeal.
"The big difference between now and Windsor is a shift inthe culture," Koppelman said. "Discrimination that madeintuitive sense to people before doesn't make a whole lot ofsense anymore."
Norvir plays a key role in AIDS-fighting cocktails becauseit can boost the effectiveness of other drugs. Glaxo accusedAbbott of raising Norvir's price by 400 percent in 2003, as partof an effort to harm competitors whose drugs were dependent onbeing used in combination with Norvir.
During jury selection in an Oakland, California federalcourt, a potential juror discussed his partner by using themasculine pronoun "he" several times. The juror also said he didnot know whether any of his friends were taking the medicationsat issue in the case.
Abbott's attorney sought to exclude the juror, and Glaxoobjected, saying that Abbott was attempting to use a peremptorychallenge in a discriminatory way. However, U.S. District JudgeClaudia Wilken allowed Abbott to exclude the juror.
Glaxo had sought $571 million, but after a four-week trialthe jury awarded Glaxo $3.5 million.
Given the legal reasoning in Windsor, the 9th Circuit heldthat gays and lesbians deserve the same constitutionalprotections during jury selection as those enjoyed byAfrican-Americans and women.
Juror strikes based on sexual orientation "depriveindividuals of the opportunity to participate in perfectingdemocracy and guarding our ideals of justice on account of acharacteristic that has nothing to do with their fitness toserve," Reinhardt wrote.
The case in the 9th Circuit is Smithkline Beecham Corp dbaGlaxoSmithKline vs. Abbott Laboratories, 11-17357.
