Robert J. "Bobby" CROWE, Sheriff of Washington Parish v. BIO-MEDICAL APPLICATION OF LOUISIANA, LLC

Robert J. "Bobby" Crowe, Sheriff of Washington Parish v. AmerisourceBergen Drug Corporation

NUMBER 2014 CA 0917 NUMBER 2014 CA 0918

Court of Appeal of Louisiana, First Circuit.

FEBRUARY 17, 2017 Rehearing Denied February 17, 2017

Robert R. Rainer, Drew M. Talbot, Baton Rouge, LA, and Margaret H. Kern, Covington, LA, and Russell J. Stutes, Lake Charles, LA, Counsel for Plaintiff/Appellee, Sheriff of Washington Parish

Jesse R. Adams, III, Andre B. Burvant, Matthew A. Mantle, New Orleans, LA, Counsel for Defendant/Appellant, Bio-Medical Application of Louisiana and Counsel for Defendant, AmerisourceBergen Drug Corporation

BEFORE: WHIPPLE, C.J., WELCH, HOLDRIDGE, CHUTZ, AND CALLOWAY1 JJ.

**ON REHEARING**

1

Judge Curtis Calloway, retired, is serving as judge pro tempore by order of the Louisiana Supreme Court.

PER CURIAM.

After consideration of this matter on rehearing, the court maintains its original June 3, 2016 opinion, which affirmed the district court's September 9, 2013 judgment granting in part the Washington Parish Sheriff's motion for summary judgment, declaring that Bio-Medical Applications of Louisiana, LLC, was not entitled to a sales tax exclusion under LSA-R.S. 47:301(10)(u), a sales tax exemption under LSA-R.S. 47:337.9(F), or a sales tax refund under LSA-R.S. 47:315.3 for the drug purchases at issue herein, and dismissing Bio-Medical's reconventional demand with prejudice.

Calloway, J. dissent with reasons

Welch J. concurs with reasons assigned

Chutz J. concurs with reasons by JEW

Holdridge J. dissents for reason assigned by Judge Calloway

WELCH, J. concurring.

While I agree with the majority opinion, I write separately to point out that the result in this case would have been different if the dialysis clinic purchased the prescription drugs intended for its Medicare Part B and D patients *separately* from the prescription drugs it purchased for its non-Medicare patients. *See* La. R.S. 47:337.9(F).

Thus, I respectfully concur.

CHUTZ, J., concurs in the denial of the rehearing and assigns reasons.

I disagree with the plurality to the extent it holds that the purchases by Bio-Medical Applications of Louisiana, LLC

*329(Bio-Medical) of certain prescription drugs for administration to Medicare patients at its kidney dialysis facility did not involve "sales made under the provisions of Medicare" within the meaning of the local sales tax exclusion pursuant to La. R.S. 47:301(10)(u) ; and that Bio-Medical's purchases of certain prescription drugs for those Medicare patients was not "through or pursuant to a Medicare Part B and D plan" as required to qualify for the local sales tax exemption under La. R.S. 47:337.9(F). Although La. R.S. 47:301(10)(u) clearly and unambiguously excludes from local taxation the sales of tangible property made "under the provisions of Medicare"; and La. R.S. 47:337.9(F) clearly exempts prescription drugs "purchased through or pursuant to a Medicare Part B or D plan," because this record is devoid of evidence from which the actual amount of tangible property excluded and/or exempted from local sales tax may be calculated, I concur in the result that affirms the trial court's judgment which concludes Bio-Medical is not entitled to relief.

In support of his motion for summary judgment, the Sheriff offered evidence which showed Bio-Medical does not separately store or segregate the drugs it administers to Medicare patients from those that it administers to non-Medicare patients. In response to this showing, as noted by the plurality, Bio-Medical suggested the value of its refund claim is determinable by dividing the number of dialysis treatments rendered to Medicare patients by the total number of dialysis treatments rendered at the kidney dialysis facility and then requested a refund of taxes on the sales of prescription drugs in the same percentage. But this calculation was not supported by the evidence in the record which showed that patients are not administered the same medicines in the same doses. Bio-Medical's offered estimate, therefore, was insufficient to create a genuine issue of material fact.

The Sheriff established that Bio-Medical was unable to produce evidence from which to calculate the value of sales excluded from local taxation under La. R.S. 47:301(10)(u) ; or the actual amount of prescription drugs it purchased "through or pursuant to a Medicare Part B or D plan" so as to permit an exemption from payment of local sales taxation pursuant to La. R.S. 47:337.9(F). Accordingly, in light of the evidence presented in support of summary judgment, the trial court correctly granted declaratory relief in favor of the Sheriff and dismissed Bio-Medical's reconventional demand.

CALLOWAY, J.,1 dissenting.

The statutes involved herein-La. R.S. 47:30l(10)(u), La. R.S. 47:337.9(F), and La. R.S. 47:315.3 -provide for the exclusion, exemption, and refund of local sales taxes of personal, tangible property "made under the provisions of Medicare," provided the ultimate "end user" of the property-here, prescription drugs administered to patients receiving dialysis treatment-is a Medicare patient. I disagree with the plurality's opinion which holds the aforementioned statutes do not apply to bulk drug transactions between a pharmaceutical vendor and a dialysis clinic at issue in this case. Specifically, I disagree that the purchases by Bio-Medical Applications of Louisiana, L.L.C. ("Bio-Medical") of certain prescription drugs for administration to Medicare patients at its kidney dialysis facility did not involve sales of personal, *330tangible property "made under the provisions of Medicare," and would not be excluded from local sales under La. R.S. 47:301(10)(u). Additionally, I disagree with the plurality's opinion that Bio-Medical's purchases of certain prescription drugs for those Medicare patients was not "through or pursuant to a Medicare part B or D plan," and would not be exempted from local sales tax under La. R.S. 47:337.9(F)

Furthermore, I find there are genuine issues of material fact regarding: (i) the value of sales which could be excluded from local taxation under La. R.S. 47:301(10)(u) ; and (ii) the actual amount of prescription drugs purchased by Bio-Medical "through or pursuant to a Medicare Part B or D plan" so as to qualify for an exemption from payment of local sales taxation pursuant to La. R.S. 47:337.9(F). It is my opinion, therefore, that summary judgment should not have been granted in favor of the Sheriff.

I therefore disagree with the plurality's opinion, affirming the trial court's grant, in part, of the Washington Parish Sheriff's motion for summary judgment, declaring that Bio-Medical was not entitled to a sales tax exclusion, exemption, or refund under the aforementioned statutes for the drug purchases at issue herein, denying Bio-Medical's motion for partial summary judgment, and dismissing Bio-Medical's reconventional demand for declaratory judgment relief. I must respectfully dissent from the plurality's opinion.

1

Hon. Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.