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3. Conclusion of Law
The majority’s conclusion that the chemotherapy drugs are
not merchandise is not a finding of fact. The majority’s
conclusion that the chemotherapy drugs are not merchandise
appears to rely on a number of propositions that, when taken
together, amount to a rule of law (i.e., a rule of general
application). The majority’s view that a medical practice such
as petitioner’s is inherently a service business is dependent on
a number of factors (some of which are conclusory): “the
uniqueness of the industry in which petitioner operates”, the
fact that petitioner’s business is a “quintessential service
business”, the “inseparable connection” of the chemotherapy drugs
to the performance of services, and, finally “[s]ervice income,
by definition, does not include income from the sale of goods”.
From those factors, the majority composes the following rule of
law: Doctors (medical and osteopathic) are not in trade. The
dictionary gives as one definition of trade: “the business of
buying and selling commodities; commerce.” The American Heritage
Dictionary of the English Language 1897 (3d ed. 1992). The
majority believes that doctors are not in trade because they are
members of a learned profession, whose stock in trade is
knowledge, not goods or merchandise. See majority op. p. 16.
The majority relies on Abbott Labs. v. Portland Retail
Druggists Association, Inc., 425 U.S. 1 (1976), to support its
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