Smithkline Beecham Corporation v. Abbott Laboratories

The court reviewed the Batson ruling de novo because the district judge applied erroneous legal standards. Batson applies in civil cases, and the Constitution forbids even a single discriminatory peremptory strike. At Batson’s first step, the challenger need only produce enough evidence to permit an inference of discrimination.

GSK met that modest burden. Juror B was the only venire member who identified himself as gay on the record, and Abbott struck him in litigation concerning HIV medications and a pricing decision that had drawn substantial attention in the gay community. The connection between the case’s subject matter and stereotypes about gay men made the inference of discrimination especially strong.

Abbott declined the court’s invitation to state a neutral reason for the strike. Its lawyer instead relied on the district court’s incorrect legal objections and claimed not to know whether Juror B was gay, even though Juror B and the judge repeatedly referred to his male partner during voir dire. That assertion was contradicted by the record and did not explain why Abbott struck the juror.

Abbott’s minimal questioning also undermined any claim that the strike rested on an individualized concern about bias. Counsel did not meaningfully ask whether Juror B could be fair and impartial. The neutral explanations Abbott later proposed on appeal—including Juror B’s purported familiarity with AIDS, lawyers, the court, and one of the drugs—were either unsupported by the record, inconsistently applied to other jurors, or highly speculative.

Earlier Ninth Circuit cases had applied rational-basis review to sexual-orientation classifications, so the court could depart from them only if intervening Supreme Court authority was clearly irreconcilable with those precedents. The court concluded that Windsor supplied that intervening authority.

Applying the method used in Witt v. Department of the Air Force to identify an unstated level of scrutiny, the court examined what Windsor actually did. Windsor did not uphold DOMA on any conceivable hypothetical rationale, as ordinary rational-basis review would require. Instead, it examined DOMA’s actual design, purpose, and effect, including Congress’s stated purpose.

Windsor also required a legitimate governmental purpose sufficient to justify the law’s concrete harms: its inequality, stigma, indignity, and assignment of second-class status to same-sex couples. That careful examination and balancing of purpose against injury was incompatible with the strongly deferential presumption that characterizes ordinary rational-basis review.

Because Windsor demanded more than rational-basis review, the court held that heightened scrutiny governs equal-protection claims involving sexual-orientation classifications.

Batson initially barred race-based strikes, and J.E.B. extended that rule to sex-based strikes because such exclusions injure litigants, excluded jurors, and public confidence in the courts. Since sexual-orientation classifications receive heightened scrutiny, and since the same dignitary and institutional concerns apply, the court concluded that Batson extends to sexual orientation.

The court emphasized the historical exclusion of gay and lesbian people from civic and governmental institutions, including public employment, professional life, immigration, and military service. Excluding a juror because of sexual orientation perpetuates that history by suggesting that gay people are less qualified to participate in a core responsibility of citizenship.

Sexual-orientation strikes also rely on forbidden group stereotypes—such as the assumption that a gay juror cannot evaluate an HIV-related case fairly. A litigant may examine an individual juror’s actual knowledge or possible bias through voir dire, but may not substitute assumptions about a group for individualized questioning.

The court recognized legitimate privacy concerns: no juror should be forced to disclose or be publicly identified by sexual orientation merely to serve. But applying Batson creates no duty to reveal sexual orientation. A challenge is available only where the characteristic is voluntarily established on the record, and trial courts can use established procedures to protect juror privacy when sensitive matters arise.

Batson errors are not subject to ordinary harmless-error analysis. The effect of a jury selected through unconstitutional discrimination cannot be measured by speculating about whether a different jury would have reached a different verdict. More fundamentally, the wrong injures the excluded juror and undermines confidence in the entire judicial process, not merely the accuracy of the verdict.

Abbott argued that any error was harmless because none of GSK’s claims should have reached a jury. But under New York law, the governing contract law, GSK offered evidence from which a jury could find that Abbott intentionally injured GSK’s right to receive the benefits of the licensing agreement. The absence of a fixed contractual price did not defeat an implied-covenant claim as a matter of law.

Abbott also relied on the jury’s rejection of theories involving gross negligence and intent to harm to invoke a limitation-of-liability provision. Because the verdict was tainted by the Batson violation, however, those findings could not be used to validate the limitation. A new trial was therefore required.