*1 malice. finding support facts adduced we when the held that
In Bohlinger the court duty it becomes are uncontrover'ted evidence The opinion is privileged. the communication determine whether utteranсe that the that if the court decided further held had evidence whether decision there must privileged “If, from the court stated: malice. The prove been presented shown, then there is no malice testimony, there uncontroverted court to action, duty and it becomes the exists no cause controlling in the Bohlinger a verdict for defendant.” direct Therefore, did not abuse we the trial court case. hold thаt present appellee. for the judgment granting summary its discretion in Affirmed. ASSOCIATION, et al.
ARKANSAS HOSPITAL OF BOARD PHARMACY ARKANSAS STATE Association Arkansas Pharmacists’ S.W.2d 73 88-124 Court of Arkansas Supreme 17, 1989 January delivered Opinion February [Rehearing denied 1989.*] *Purtle, J., grant rehearing. wоuld
Wallace, Dixon, Dover & for appellant. Clark, Steve Hendrix, J. Gen., by: Blake Att’y Asst. Att’y Gen., for appellee Arkansas State Board of Pharmacy.
Arnold, Association, & Grobmeyer Haley, A Professional for appellee Arkansas Pharmacists’ Associatiоn. Dudley,
Robert H. Justice. Code Ark. Ann. 17- § 91-607(a) (1987) distinguishes between nonprofit hospitals for-profit hospitals by allowing to hold retail for-profit hospitals so, pharmacy permits, but not allowing to do nonprofit hospitals unless held such a on effective date of the statute. permit a trade nonprofit hospitals group appellants, the State
association, enjoin filed seeking appellee, suit statute. enforcing аppellants Board of Pharmacy, right equal the statute violated below argued amend- the fourteenth guaranteed by of the laws as protection States, article and by of the United ment to the Constitution сourt The trial of Arkansas. section 18 of the Constitution case. appellants’ dismissed the at conclusion complaint ruling. We affirm that statute, isit not challenge to a
On equal an protection Instead, we lеgislation. for the our role discover the actual basis *3 which rational basis exists any are to consider whether merely with state nexus demonstrates the of a deliberate possibility utterly of is not the legislation product so that objectives, any and void of hint arbitrary government purpose and capricious 280 Ark. Ragland, of and Streight deliberate lawful purpose. Further, challenging the 206, (1983). the party S.W.2d 459 rationally the act is not has the burden of legislation proving government of state any objective to achieving legitimate related of facts. reasonably Streight, under conceivable state Ark. at 214. legislation;
In case rational basis does exist for the this a is the diversion of prevention Drug diversion. diversion with resulting one another a drugs from wholesale submarket to drugs. loss of control over the Investi- Oversight
In June the Subcommittee on and gation of of the United the Committee on Commerce Energy on the report States House of issued staff Representatives subject, Dingell referred to as the commonly report. report of the wholesale disсusses the existence and method operation submarket, market, or it effective how prevents of, over, control and even the true source of knowledge routine that, result, It have been drugs. states which pharmaceuticals mislabeled, misbranded, have stored improperly shipped, date, counterfeits, injected their or are bald are passed expiration into the sale to consum- system national distribution for ultimate at below buy ers. The states that hospitals report nonprofit to federal average wholesale under a price special exemption buy antitrust in excess laws. “These institutions nоnprofit significant their are a legitimate needs and then resell the excess House and growing source of diverted merchandise.” Staff of Commerce, Sess., 1st Cong., Committee on 99th Energy (Comm. 1985). on Diversion 2 Report Print Drug Thе report further provides:
Nonprofit Institution Diversion section,
As indicated institu- previous nonprofit tions that have purchased pharmaceuticals beyond needs have diverted the excess market for to wholesale however, many years. face Recently, and the of apparent prohibitions against resales the Robinson-Patman Act (15 U.S.C. 13), volume of merchandise and number of diversions from institutions appear have increased dramatically. not to say that the is new. Extensive practice
hearings in 1967 and 1969 before the House Select Committee on Small Business a forum for com- provided plaints failure to enforce the Robinson-Patman Act was unfairly damaging retail druggists.
An entire whose industry sprung sole up purpose *4 to be appears to solicit to nonprofit purchase hospitals excess pharmaceuticals discount, using their special which are products then to resold the broker immediately wholesaler for ultimate resale the retailer. The current head of the California Board of Pharmacy told the Sub- committee staff that it his guess that hospital diversion was the leading sourcе of products for the diversion market in his state.
The Subcommittee staff in has identified companies California, Texas New are Jersey such making solicitations. 21,
Id. at 23.
The General well Assembly have been aware оf the may diversion market decided to its Obviously, limit operation. nonprofit could not hospitals from prevented rationally buying
458 use, rationally but for own in-house drugs
authorized who to someone drugs at retail selling prevented could be would eliminate connection with the hospital. no present at a drugs hospital purchasing the of a nonprofit possibility use, diverting those use, then discount for its own or in-house it from also prevent its It would drugs to retail pharmаcy. institutions. nonprofit for use from other purchasing retail a connection Thus, demonstrates exists which a rational basis objective. legitimate with a state broad, and act is too that the argue next aрpellants therefore, basis. Simply has no rational the state classification stated, should have the they argue Assembly General at discount sale purchased made the retail of pharmaceutiсals rate unlawful. nonprofit Act, 13, 15 prohibits
The Robinson-Patman U.S.C. § retail sale by making purchased pharmaceuticals Assembly at unlawful. The General nonprofit the discount rate law and realized that well have been of the federal may aware crime, it a still was though drug even diversion was federal something as a crime growing problem; classifying that simply Thus, Assem- did not the General necessarily solve problem. disallowing bly have to limit diversion may chosen and retail hospital connection between a pharmacy. fact the Arkansas statute is broader scope the state than the Robinson-Patman Act does not invalidatе for, statute, test, the will judiciary the rational basis applying not act as means superlegislature question employed Board Retire Massachusetts objective. the state accomplish 316, 307, “As as the (1976). long v. ment U.S. Murgia, . . . advances a reasonable and classificatory rationally scheme we must governmental objective, judiciary] identifiable [the [achieving the existence of other methods of disregard we, individuаls, would legislative goal] that have perhaps Wilson, (1981). Schweiker 450 U.S. preferred.” *5 drug The fact limit Assembly that the General chose to rather by eliminating nonprofit hospitals, retail sales by crime, than such does not render the solely by making actions a legislation broad. overly
Affirmed. J.,
Hickman, concurs.
Purtle, J., dissents. Hickman, Justice, a deci- concurring. Sometimes
Darrell sion has to be defined what it is not.
This affecting is not a decision The consumers. hospitals do not to stores to pretend they operate drug want Indeed, reduce the cost of to the seek public. they candidly to make profits. is case not one of prevent competition. discrimination to stores,
Through advertising discount there exists a drug competitive atmosphere from which the benefits. This is public not a decision that prohibits hospital performing function necessary to its existence.
The is question purely, legislature can thе a non- prohibit profit hospital, which it granted special privileges concessions, from an opening business? unnecessary, profitable and,
Nonprofit corporations are misunderstood probably and, misnamed. perhaps They make though don’t profits stockholders, have owners or an establishment exists to run them. The profits such a to corporation should inure the benefit of those sometimes, served by thе But corporation. these institutions forget the real reason for their charters and feed the simply directors, employees, friends associates of the corporation rather than devote the profits services.
I point no fingers merely but note that there are no parties this suit who have totally genuine unselfish motives. There is no question of due of law or process discrimination involved. question is: can reason any conceivable be found justify legislation? It can. Justice, Purtle, I. dissenting.
John majority opinion based upon belief that a rational basis exists for this legislation, i.e. the prevention diversion. This basis was comрletely at the disproved trial level. The fact that or one of Congress, its agencies, found some drug diversion other occurring parts is no rational it country finding basis for will occur
Arkansas. no diversion occurred was evidence that
Not
there
Arkansas,
likely
such diversion
there was evidence that no
in
General
majority
speculates
to occur. The
opinion
market and
of
“diversion”
have been aware
Assembly may
in Arkansas.
decided to
it from happening
prevеnt
testimony
The
Systems presented
Medical
Baptist
well as a “for
system as
drug
an in-house
distribution
operated
I
buildings.
As understand
in one
profit” pharmacy
in and
“grandfathered”
is
legislation, this “for profit” pharmacy
hand,
the оther
St.
will
allowed
On
to continue business.
area,
medical institution
this
Vincent’s
a well known
Infirmary,
same
At the
campus.
will
store on its
drug
be unable to establish
time,
will be allowed
a “for
Hospital,
profit” hospital,
the Doctors
will
other
profit,
to continue
its
store for
operating
profit.
motivation behind this lawsuit
hospital.The only
private
the “not for
profit
profit”
want to make the
pharamacists
making
pharmacies.
institutions arе
on their “for profit”
preferential
of
legislation gives
priority
one class
persons
is to increase the
treatment over others and the inevitable result
is, in
my opinion,
consumer. This law
price
clauses
Equal
violation of the Due Process
Protection
which is also
legislation,
Constitution. This
piece
special
Constitution,
be declared void.
the Arkansas
should
prohibited by
v. WARNER BROWN HOSPITAL
UNION COUNTY
88-255
Supreme delivered Opinion January