*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 utterance 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 that 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. would

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’ Association. 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 appellants 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 court 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 legislation. 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 discusses 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 nonprofit 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 The 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 source 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 of 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 pharmacy. 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 appellants 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 pharmaceuticals 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 invalidate 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, individuals, 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 the 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 the 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 completely 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 prevent 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 other 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 are 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 88-255 762 S.W.2d 798 Court of Arkansas

Supreme delivered Opinion January