AbbVie Decides Against Appealing A Ruling That Would Have Protected Gays

Published: Aug 08, 2014

AbbVie Decides Against Appealing A Ruling That Would Have Protected Gays Without An Explanation, AbbVie Decides Against Appealing A Ruling That Would Have Protected Gays

August 7, 2014
By Mark Terry, Breaking News Staff

Pharmaceutical company AbbVie spokesman Dirk Van Eeden announced the company would not appeal the San Francisco-based Ninth Circuit Court’s landmark decision for gays and lesbians. The decision revolved around the exclusion of a gay man from jury duty in a lawsuit against AbbVie brought by GlaxoSmithKline over HIV pricing. AbbVie is a spinoff of Abbott Laboratories .

In the original appeal opinion, District Court Judge Stephen Reinhardt wrote, “The central question in this appeal arises out of a lawsuit brought by SmithKline Beecham (GSK) against Abbott Laboratories (Abbott) that contains antitrust, contract, and unfair trade practice (UTPA) claims.”

The case revolved around the pricing of HIV drug, Norvir, which is used in a cocktail of antiviral medications to increase the effectiveness of the other drugs. In 2003, Abbott began raising the price of Norvir by 400 percent. GSK accused Abbott of inappropriately raising prices to drive patients and physicians to use of their own cocktail of HIV drugs over GSK’s, specifically GSK’s combination pill, Kaletra.

During jury selection, Abbott struck the only self-identified gay member of potential jurors with its first peremptory strike. GSK challenged the strike, arguing that it was made on the basis of sexual orientation, which was not permissible under Batson v. Kentucky, 476 U.S. 79 (1986). The challenge was denied by the district judge.

GSK had sought $571 million, but by the end of the 2011 trial was awarded $3.5 million by the jury. Then Ninth Circuit Court then ordered a new trial between GSK and AbbVie. The new trial was based in part on the federal Defense of Marriage Act (DOMA). Judge Reinhardt wrote that juror strikes based on sexual orientation “deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.”

The original case between GSK and Abbott focused on anti-competition laws, but spun into constitutional protections in the appeals process. The jury in the original trial found that Abbott had breached a licensing agreement with GSK, but that the pricing actions did not violate anti-competition laws. The appeal ruling was considered a landmark ruling that strengthened protections for gays and lesbians. At this time AbbVie has declined to comment on its rationale for declining to appeal.

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