Gary R. Thompson appeals from the district court's denial of habeas corpus relief pursuant to 28 U.S.C. § 2254. We have jurisdiction over this appeal by virtue of 28 U.S.C. § 1291. Because appellant filed his habeas application in February of 1997, it is subject to the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). This court previously granted appellant a certificate of appealability to proceed on appeal pursuant to 28 U.S.C. § 2253(c).
Before the district court, appellant raised three challenges to his first-degree murder conviction. He alleged that 1) the state trial court should have instructed the jury on the lesser included offense of second-degree murder; 2) his trial counsel was ineffective because he failed to request such an instruction; and 3) the evidence was insufficient to support his conviction. The magistrate judge noted that these three issues had been addressed and decided on the merits by the Oklahoma Court of Criminal Appeals. See Appellant's App. at 2.(2) Appellant does not contest otherwise. Under 28 U.S.C. § 2254(d), as amended by AEDPA, when a state court has decided issues on the merits, we may grant habeas relief only if appellant can show that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," id. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).
Appellant does not challenge the district court's rejection of his sufficiency of the evidence argument on appeal; therefore, that issue is abandoned and deemed waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). Appellant's arguments on the remaining two issues do not challenge any factual findings. Under the above standard, then, we review these two issues to determine if the state court 1) reached conclusions contrary to a principle of law articulated by the Supreme Court; 2) decided them differently than the Supreme Court on materially indistinguishable facts; or 3) applied the governing law to the facts of appellant's case in an objectively unreasonable manner. Williams v. Taylor, 529 U.S. 362, 405-06, 410 (2000).
Appellant argues that the state court's failure to give the jury a lesser-included offense instruction on second degree murder violated his rights to due process and cannot be considered harmless error in light of certain comments made by defense counsel in closing argument.(3) The district court disagreed with appellant's argument that these comments were tantamount to suggesting that appellant was guilty of second degree murder. Appellant's App. at 18 n.10.(4) It also held that the evidence was insufficient under Oklahoma law to support an instruction of second degree murder. Id. Further, and most importantly, the district court concluded, in accord with Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993), that appellant could not demonstrate entitlement to habeas relief for the failure to give a lesser-included offense instruction even if the evidence were sufficient to warrant the instruction. Appellant's App. at 15. Appellant's arguments on appeal do not challenge the district court's ruling on this point and therefore do not demonstrate that the state court's decision denying habeas relief violated the standards set out in AEDPA.
Similarly, appellant contends that his trial counsel was ineffective for failing to request a lesser-included instruction on second degree murder. Noting that a second degree murder instruction would have been incompatible with appellant's innocence defense at trial, the district court determined that failing to request a lesser-included instruction was not ineffective assistance of counsel. Appellant's App. at 19-20. The court reiterated that the evidence did not support a second degree murder instruction and concluded that appellant had not demonstrated "prejudicial performance" by trial counsel. Id. at 20. Appellant's arguments on appeal again do not challenge this dispositive ruling; therefore, he has not demonstrated that the state court decision violated federal law as set out in § 2254(d)(1).
For substantially the same reasons set forth in the magistrate judge's Report and Recommendation dated November 20, 1999, the judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.
1. Appellant and his counsel both filed separate timely notices of appeal; the cases were consolidated on the court's own motion.
2. The district court adopted, after de novo review of appellant's objections, the report and recommendation of the magistrate judge in this case. See Appellant's App. at 22-23.
3. Counsel apparently argued that because a jury had found the evidence insufficient to convict appellant's co-defendant, who had admitted firing his gun at the deceased, the evidence against appellant, who denied firing a gun, was not sufficient to support a first degree murder conviction. Appellant's App. at 18 n.10.
4. We cannot review the district court's conclusion on this point because counsel has not provided us with a transcript of closing arguments on appeal, and has included only selected brief quotations in his brief. See McGinnis v. Gustafson, 978 F.2d 1199, 1200-01 (10th Cir. 1992) (failure to include transcript "raises an effective barrier to informed substantive appellate review"). We remind counsel of his duty to "file an appendix sufficient for considering and deciding the issues on appeal" 10th Cir. R. 30.1(A)(1).


The Wisconsin Department of Health Services (DHS) is statutorily required to provide one-time, quarterly, annual, and biennial reports on behalf of the agency. DHS is required to provide these reports and information to the legislature and governor.
(a) In this subsection: 1. “Intermediate care facility for individuals with intellectual disabilities” has the meaning given in 42 USC 1396d (d). 2. “Medical assistance programs” has the meaning given in Wis. Stat. § 49.43 (8). 3. “Nursing home” has the meaning given in Wis. Stat. § 50.01(3). (b) Annually by October 1, the department shall submit to the joint committee on finance and to the appropriate standing committees of the legislature under Wis. Stat. § 13.172(3) a report that includes information collected from the previous fiscal year on the relocation or diversion of individuals who are Medical Assistance eligibles or recipients from nursing homes, intermediate care facilities for individuals with intellectual disabilities, and state centers for the developmentally disabled.
(5g) Beginning on January 1, 1999, and annually thereafter, the department shall submit a report to the legislature under Wis. Stat. § 13.172 (2) that specifies the number of persons in the previous year who have requested to demonstrate to the department that they have been rehabilitated under sub. (5), the number of persons who successfully demonstrated that they have been rehabilitated under sub. (5) and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.
Submit to the governor or the state health planning and development agency under P.L. 93-641, as amended, an annual report covering the activities of the department relating to treatment of alcoholism.
51.42 (7) (d) By January 1, 2015, and by January 1 of each odd-numbered year thereafter, the department shall submit to the legislature under s. 13.172 (2) a report that describes mental health services and programs provided by counties and regions comprised of multiple counties.
(2s) Annually, the department of health services and the department of employee trust funds shall jointly prepare and submit under s. 13.172 (3) to standing committees of the legislature with jurisdiction over health issues a report on the activities of the data organization under this chapter.
Buprenorphine prior authorization review. The department shall review its prior authorization policy on buprenorphine-containing products provided to Medical Assistance program recipients. On the first day of the 7th month beginning after the effective date of this subsection .... [LRB inserts date], and every 6 months thereafter, the department shall submit to the standing committees of the legislature with jurisdiction over health under s. 13.172 (3) a report describing the department's findings on the prior authorization policy on buprenorphine-containing products and its progress on eliminating prior authorization requirements for buprenorphine-containing products in populations where removal of prior authorization is appropriate.
Annually, submit to the chief clerk of each house of the Legislature for distribution to the Legislature under s. 13.172(2) a report on the department's progress toward full implementation of the program under this section, including the progress of counties in implementing goals for participation in 5th-year requirements under 20 USC 1476.
Beginning January 1, 1997, and every January 1 thereafter, the department shall submit a report to the joint committee on finance and to the appropriate standing committees under s. 13.172 (3), summarizing the data collected for the state and for individual counties under the program in the calendar year ending immediately before the preceding calendar year.
Beginning April 1, 2002, and biennially thereafter, submit to the appropriate standing committees under s. 13.172 (3) a report that details the effectiveness, utilization and progress of the registry established under sub. (3) (a) 1.
Each state agency that is ordered to pay costs under this section or that recovers costs under sub. (11) shall report annually, as soon as is practicable after June 30, to the presiding officer of each house of the legislature the number, nature and amounts awarded, the claims involved in the action in which the costs were incurred, the costs recovered under sub. (11) and any other relevant information to aid the legislature in evaluating the effect of this section.
The department shall annually submit to the legislature under s. 13.172(2) a report regarding orders under this section.
Annually, by July 1, the department shall submit a report to the legislature under s. 13.172(3) on the success of the statewide immunization program under this section.
Annually, no later than September 15, submit a report to the chief clerk of each house of the legislature for distribution to the legislature under s. 13.172 (2), including the number of proposed actions for which the agency conducted an assessment of whether an impact statement was required under par. (c) and the number of impact statements prepared under par. (c).
AMBULATORY SURGICAL CENTER (ASC) ASSESSMENT REPEALED effective Sept. 23, 2017. No ASC assessment will be imposed in 2018 based on calendar year 2017 gross patient revenue.
Pursuant to 2009 Wisconsin Act 28, effective July 1, 2009, an assessment on the gross patient revenue of ambulatory surgical centers (ASCs) is imposed. Act 28 authorized the Department of Revenue (DOR) to impose the assessment on ASCs that are certified by the federal Centers for Medicare and Medicaid Services (CMS) to participate in the Medicare program. The assessment will provide additional federal funding for the Medical assistance program, and allow increased Medical assistance reimbursement rates to ASCs.
By the first day of the 24th month beginning after the effective date of this subsection, April 8, 2014, and annually thereafter, the department shall submit to the joint committee on finance and to the appropriate standing committees under Wis. Stat. § 13.172 (3) a progress report on the outcomes of the program under this section.
Section 1. 20.435 (5) (bc) of the statutes is amended to read: Grants for community programs. The amounts in the schedule for grants for...opioid treatment programs under Wis. Stat. § 51.422.
(4) Reports. Not later than April 15, 2002, and annually thereafter, the department shall submit to the governor and to the chief clerk of each house of the legislature for distribution under § 13.172 (2) a report that evaluates the success of the grant program under sub. (3). The report shall specify the number of grants awarded during the immediately preceding fiscal year and the purpose for which each grant was made. The report shall also specify donations and grants accepted by the department under sub. (5).


A few years ago, I published an article that questioned whether Alabama’s tort of bad faith was becoming more prevalent on a theory referred to by Alabama courts as an “abnormal bad faith” action. See, “Is Abnormal Becoming the New Normal in Alabama?” Mealey’s Litigation Report: Insurance Bad Faith, Vol. 22, #20 (February 26, 2009).
As mentioned in the article, the tort of bad faith was first recognized by the Supreme Court of Alabama more than 30 years ago. Back then, the traditional tort of bad faith was only actionable if the claimant could prove that he was entitled to a directed verdict on the question of whether the insurer breached the insurance contract when it denied the claim.
Over the years that followed, Alabama courts began to identify situations involving bad faith that did not quite fall into the category of bad faith that was first recognized by the Court. These situations became known as “abnormal” bad faith actions, and included claims where the insurer “intentionally or recklessly failed to properly investigate the claim,” or dealt with claims where the insurer “created” a factual issue after the denial, and so forth. More recent reported opinions showed a willingness to allow a plaintiff to move his bad faith case forward by alleging an alternative “either/or” theory of bad faith. Either the insurer breached the contract in bad faith, or it failed to investigate in bad faith. This culminated in the Court expressly finding that an action for “abnormal” bad faith could exist even where the “normal” bad faith claim was lacking as a matter of law.
Fortunately, the Supreme Court of Alabama now seems to have backed away from this position. Recently, the Court issued State Farm Fire and Cas. Co v. Brechbill, 2013 WL 5394444 (Ala. Sept. 27, 2013) , wherein the Court directly addressed the issue of whether a claim for “abnormal” bad faith could still exist where there was a factual dispute as to whether the insurer wrongfully denied the claim. The Court found that Alabama’s tort of bad faith is a singular tort with two methods of proof – either the plaintiff demonstrates that it is entitled to a directed verdict that the insurer breached its contract with the insured, or that the insurer failed to investigate the claim in bad faith. In fact, the Court noted in a footnote that it would refrain from using the terms “abnormal” and “normal” when referring to bad faith cases, and instead “use the more descriptive terms ‘bad-faith refusal to pay’ and ‘bad faith refusal to investigate’.” Brechbill, at fn 1.
Most importantly, the Court held that all plaintiffs alleging bad faith must show that there was no legitimate reason for denying the claim. In other words, if the insurer can demonstrate a question of fact or show that it had a legitimate basis for denying the claim, the bad faith claim fails as a matter of law, regardless of the theory upon which it is presented.
Probably the most interesting comments from this opinion, however, came from Chief Justice Moore. He stated in a special concurring opinion that Alabama’s “judicially legislated tort” of bad faith should be abolished altogether, essentially inviting a constitutional challenge, and leaving the question of bad faith to the Alabama Legislature. It will be interesting to see if the Court actually goes this far; and even more interesting to see if the business-friendly, Republican-controlled Legislature and executive branches decide to take action if the Court does indeed abolish the tort.
So it turns out, abnormal isn’t that abnormal when it comes to bad faith in Alabama.
He practices in the areas of general liability defense, with particular focus on construction defect matters, and both first and third-party property/casualty coverage.
Florida law allows an insured to recover attorney’s fees if the insured prevails in a lawsuit against the insurer for insurance benefits. See § 627.428, Florida Statutes. The plain text of the statute requires a “judgment” against the insurer. In Wollard v. Lloyd's & Companies of Lloyd's, 439 So. 2d 217 (Fla. 1983), however, the Florida Supreme Court held that an insurer’s post-suit payment of a claim may be the “functional equivalent of a confession of judgment or a verdict in favor of the insured”, thus, triggering the fee-shifting statute.
In Florida, an insured cannot bring a first-party bad faith claim based on a claim for UM coverage unless the insured first files a Civil Remedy Notice (CRN) with the Florida Department of Financial Services. In Mathurin v. State Farm, Butler recently vindicated the importance of this step by winning a dismissal of a first-party bad faith action where the CRN did not match up with the Complaint.
February 10, 2015 Blog PostDoes Florida's statutory duty to disclose insurance information apply to claims arising under out-of-state policies?
One of the most common questions I get from out-of-state insurers is whether they are required to honor a claimant’s request for disclosure of insurance information under Florida Statute 627.4137. If the applicable policy was not delivered in Florida or issued for delivery in Florida, the short answer is “No.” Nonetheless, sometimes an insurer can best protect both its insured and itself by voluntarily providing at least some of the information outlined in the statute.
Rejecting the holdings of two recent decisions by the Eastern District of Pennsylvania, the Supreme Court of Pennsylvania held in a 5-to-1 ruling that claims under Pennsylvania’s Bad Faith Statute (42 Pa.C.S. § 8371) are assignable to injured third parties. The decision, Allstate Prop. & Cas. Ins. Co. v. Wolfe, 2014 Pa. LEXIS 3309 (Pa. Dec. 15, 2014), considered the case of Jared Wolfe, who was injured in a car accident after being struck by Karl Zierle’s vehicle.


Whether sexually reproduced plants are patentable subject matter under 35 U.S.C. 101.
1. Three different statutory schemes are relevant to this case. First, 35 U.S.C. 101 provides in pertinent part that "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of [Title 35]." In Ex parte Hibberd, 227 U.S.P.Q. (BNA) 443 (Bd. Pat. App. & Interf. 1985), the Board of Appeals and Interferences of the Patent and Trademark Office (PTO) held that sexually reproduced plants (i.e., plants reproduced from seeds) are eligible for patent protection under Section 101. Id. at 443-447. During the 15 years since that decision, the PTO has issued hundreds of so-called "utility patents" protecting sexually reproduced plants.
35 U.S.C. 161. Section 161 further provides that, except as otherwise provided, "[t]he provisions of [Title 35] relating to patents for inventions shall apply to patents for plants." 35 U.S.C. 161. The PTO has granted more than 10,000 plant patents under Section 161.
Finally, the Plant Variety Protection Act (PVPA), Pub. L. No. 91-577, § 42, 84 Stat. 1547, provides statutory protection to novel varieties of sexually reproduced plants that meet statutory criteria of distinctness, uniformity, and stability. 7 U.S.C. 2402(a) (1994 & Supp. IV 1998). In providing protection for sexually reproduced plants under the PVPA, Congress established a regime, separate from the patent laws, under which the Department of Agriculture issues plant variety certificates to breeders of novel varieties of sexually reproduced plants. See 7 U.S.C. 2483 (1994 & Supp. IV 1998) ("Contents and term of plant variety protection").
2. Respondent is the world's largest producer of seed corn, and holds utility patents granted, under Section 101 of Title 35, for sexually produced corn hybrids. Respondent filed suit against petitioners, alleging that they infringed respondent's patents covering 17 corn seed products by making, using, and selling or offering for sale seed corn of these patented hybrids. Petitioners are not authorized sales representatives of respondent. Pet. App. 14-15.
Petitioners asserted, among other defenses, the defense of patent invalidity. Petitioners also asserted a counterclaim seeking a declaratory judgment that all of the patents relied upon in respondent's complaint are invalid. Petitioners moved for summary judgment on their counterclaim, arguing that patents directed to sexually reproduced plants are not authorized under Section 101, and that Congress intended the PPA and PVPA to be the exclusive means of securing protection for plants. Pet. App. 15-16.
The district court denied petitioners' motion for summary judgment and held that Section 101 authorizes the issuance of patents covering sexually reproduced plants. Pet. App. 13-39. Relying upon this Court's decision in Diamond v. Chakrabarty, 447 U.S. 303 (1980), the district court concluded that the text of Section 101 authorizes the grant of patents covering plants, Pet. App. 22, and that Congress's intention in adopting the PPA and PVPA was not to limit Section 101, but rather "to extend patent protection to an area [historically] not often able to meet the requirements" for protection under Section 101, id. at 29.
The decision of the court of appeals is correct, and is not in conflict with any decision of this Court or any other court of appeals. Further review by this Court is not warranted.
1. This Court held in Chakrabarty, supra, that Congress's grant of patent authority in Section 101 should be broadly construed. Section 101 provides that "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter * * * may obtain a patent therefor." 35 U.S.C. 101. The Court has defined "manufacture" "to mean 'the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations.'" Chakrabarty, 447 U.S. at 308 (quoting American Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1, 11 (1931)). The phrase "composition of matter" reaches "all compositions of two or more substances and . . . all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids." Ibid. (internal quotation marks omitted). "In choosing such expansive terms, * * * modified by the comprehensive 'any,' Congress plainly contemplated that the patent laws would be given wide scope." Ibid.
The Chakrabarty Court also reviewed the legislative history of Section 101, 447 U.S. at 308-309, and concluded that it confirms Congress's understanding that the patentable subject matter reached by Section 101 "include[s] anything under the sun that is made by man," id. at 309 (quoting S. Rep. No. 1979, 82d Cong., 2d Sess. 5 (1952); H.R. Rep. No. 1923, 82d Cong., 2d Sess. 6 (1952)), provided the other requirements for patentability are satisfied.
In light of the text of Section 101 and its history, the Court held in Chakrabarty that a nonnatural, genetically engineered bacterium capable of breaking down multiple components of crude oil "plainly" was within the subject matter of patent under Section 101, being either a "manufacture" or "a composition of matter." 447 U.S. at 305, 309-310. The same reasoning applies to plants, such as the patented corn hybrids at issue in this case. Where a plant has "markedly different characteristics from any found in nature" (which is not in dispute for purposes of this petition) and "ha[s] the potential for significant utility" (also not at issue here), the plant "is patentable subject matter under § 101." Id. at 310; see also id. at 311 (rejecting argument that the terms "manufacture" and "composition of matter" do not include living things). Accordingly, novel plants made by human intervention, as well as seeds and tissue cultures from those plants, are eligible for patent protection, subject to the conditions and requirements of Title 35.
2. Petitioners base their attempt to overcome Chakrabarty upon Congress's extension of specific protection to plants through the PPA and PVPA. See Pet. 7-30. Petitioners argue that Congress has chosen to limit patent and patent-like protection for plants, unlike bacteria and other living things, to the specific protections provided under the PPA and PVPA. Once again, however, the contrary holding of this Court in Chakrabarty is controlling.
As petitioner in Chakrabarty, the United States similarly argued that the adoption of specific protections for plants in the PPA and PVPA, and the surrounding legislative history, demonstrated Congress's understanding that Title 35 would not otherwise afford patent protection to plants, and that the PPA and PVPA would be the exclusive means of securing patent or patent-like protection for plants. Brief for Pet. at 21-37 (No. 79-136). This Court rejected the government's submission, and we see no reason to revisit the issue in this case.
In reaching the conclusion that the PPA and PVPA do not impliedly establish an exclusion from the scope of patentable subject matter under Section 101, this Court reviewed the history of both statutes. The Court explained that, when Congress enacted the PPA in 1930, it sought to address two restrictions in the patent laws that were then thought to preclude protection for asexually reproduced plants as a practical matter. The first restriction was the belief, in some quarters, that plants were products of nature rather than of man for purposes of patent law, and remained so even if artificially bred. Chakrabarty, 447 U.S. at 311-312. The second restriction was the requirement that the subject of the patent be described in writing in sufficient detail to allow reproduction of the invention, a requirement that it was thought impossible to satisfy in the case of plants. Id. at 312; see 35 U.S.C. 33 (1925) ("inventor * * * shall file * * * a written description of the [invention]"); 35 U.S.C. 112 (current codification of "written description" requirement). Congress resolved both issues in favor of patentability through the PPA, thereby ensuring that patent protection would be afforded to innovations in plant breeding notwithstanding the difficulties in obtaining protection under Section 101. Accordingly, the Court held in Chakrabarty that the legislative history of the PPA does not reveal a congressional understanding that plants necessarily are, or thereafter would be, outside the broad scope of patentable subject matter under Section 101. 447 U.S. at 312-313; see generally Barr v. United States, 324 U.S. 83, 90 (1945) ("[I]f Congress has made a choice of language which fairly brings a given situation within a statute, it is unimportant that the particular application may not have been contemplated by the legislators.").
The Court similarly held in Chakrabarty that the PVPA was enacted to reflect advances in breeding techniques that made it possible to reproduce new varieties of plants, true-to-type, through seeds.2 Again, the Court concluded that nothing in the language or legislative history of the PVPA reflects a congressional view that plants were or would be categorically ineligible for protection under Section 101, in the event that eligibility could be established in accordance with the terms of Section 101 and Title 35. Chakrabarty, 447 U.S. at 313.
The dissenting Justices in Chakrabarty, like the government in that case and petitioners here, argued that, when it adopted the PPA and PVPA, "Congress thought it had to legislate in order to make agricultural 'human-made inventions' patentable." 447 U.S. at 321. Accordingly, the dissenters concluded that such agricultural inventions are protectable only insofar as they come within the scope of the PPA or PVPA. Id. at 318-322 (Brennan, J., dissenting). The dissenters' view, of course, was rejected. Petitioner does not suggest any justification for reopening that decision. This Court, moreover, has consistently recognized that the doctrine of stare decisis has special force in matters of statutory interpretation, which Congress remains free to address through amending legislation. See, e.g., Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 205 (1991) ("stare decisis is most compelling" where "a pure question of statutory construction" is involved).
3. Petitioner argues (Pet. 24-27) that interpreting Section 101 as allowing utility patent protection for sexually reproduced plants that otherwise meet the requirements of Title 35 would create "[i]rreconcilable [c]onflicts" (Pet. 24) with the PVPA, so that Congress should be presumed to have intended that protection under Section 101 would not be available. As both the district court and the court of appeals determined, however, the asserted "conflicts" between Section 101 and the PVPA are merely "difference[s]" in the requirements for obtaining protection, the administrative schemes, and the scope of the protection afforded. Pet. App. 9, 30-34. While some overlap is possible, petitioners do not establish (Pet. 24-27) that implementation of one scheme precludes implementation of the other.
For instance, an invention or discovery must be new, useful, and not obvious to receive utility patent protection under Section 101. 35 U.S.C. 101-103 (1994 & Supp. IV 1998). Plant variety protection certificates, however, may be issued with respect to sexually reproduced plant varieties that are new, distinct, uniform, and stable. 7 U.S.C. 2402 (1994 & Supp. IV 1998). Thus, as the name indicates, utility patents under Section 101 require usefulness, whereas the PVPA does not. The characteristics of the plant variety protected under the PVPA also may not meet the requirement of non-obviousness that applies to a utility patent.
Although more difficult to obtain, utility patent protection for sexually reproduced plants and seeds under Section 101 is broader in scope than the protection afforded by a plant variety protection certificate under the PVPA. The protection afforded by a certificate is limited to the particular variety described therein. See 7 U.S.C. 2402(a) (1994 & Supp. IV 1998). A utility patent, by contrast, may be granted to protect discoveries embracing a class or species of plants, and does not have to be limited to a particular plant variety.5 The PVPA also establishes several exemptions to infringement that do not apply to utility patents. The exclusive rights granted by a certificate of plant variety protection are subject to a prior use clause (7 U.S.C. 2542), a research exemption (7 U.S.C. 2544), and a crop exemption for farmers (7 U.S.C. 2543), all of which may limit the breeder's ability to recover an economic return.
For those applicants who can comply with the stringent requirements for patentability under Section 101, utility patent protection offers more extensive protection than the PVPA. Limiting the scope of Section 101 to exclude sexually reproduced plants-thus denying that broader protection-would be contrary to congressional intent (as interpreted in Chakrabarty, supra) and would reduce incentives for research and development in the agricultural and horticultural arts.
4. Finally, citing Ropat Corp. v. McGraw-Edison Co., 535 F.2d 378 (7th Cir. 1976), petitioners suggest that the court of appeals wrongly approved "[d]ual protection of the same invention." Pet. 26-27. Ropat held that dual patents (a design patent and a utility patent) could not be issued on the same aspect of the same invention. 535 F.2d at 381. The court of appeals in that case simply applied the settled rule that, in order to avoid prolonging the period of a patent monopoly beyond that intended by Congress, "two valid patents for the same invention cannot be granted either to the same or to a different party." Miller v. Eagle Mfg. Co., 151 U.S. 186, 197 (1894).
Here, the only relevant patents held by respondent are utility patents issued under Section 101, and petitioners' challenge to their validity is based on the argument that respondent should have secured protection under the PVPA instead. See Pet. 3-5. The record thus indicates that respondent holds only one patent for each invention, and the rule against "double patenting" is not implicated.
1 The court of appeals declined to address other claims regarding the validity of respondent's particular plant patents, which the district court had not considered and petitioners do not advance before this Court. Pet. App. 9.
2 In true-to-type reproduction, the plant inherits genetic characteristics identical to those of the parent plant.
3 Petitioners' reliance (Pet. 12-14) upon the Court's prioritization of conflicting statutes in FDA v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1301 (2000), is thus misplaced.
4 The seed deposit requirement ensures that the statutory criteria of uniformity and stability are satisfied, but, unlike the description requirements of Title 35, does not suffice to place the invention in the public domain after the term of protection expires.
5 For example, the PTO has issued a utility patent covering rice plants with increased resistance to herbicides. See U.S. Patent No. 5,545,822A (Aug. 13, 1996). The broader coverage available through Section 101 is increasingly important in light of advances in genetic engineering, such as use of recombinant DNA technology to develop utility-patented plants having improved insecticidal properties. See U.S. Patent No. 5,977,442A (Nov. 2, 1999). The breadth of coverage afforded by utility patents may be essential in some circumstances to protect plant inventions produced by genetic engineering.


36-27A-3 Board of examiners-Number of members--Qualifications--Appointment.
36-27A-6 Terms of board members.
36-27A-7 Removal of board members--Vacancies--Limitation of successive terms.
36-27A-8 Meetings of board--Election of officers--Records of meetings.
36-27A-9 Board within Department of Social Services--Department providing administrative functions--Expenses--Reports.
36-27A-10 Representations as psychologist restricted.
36-27A-11 License of another state.
36-27A-13 Exemption from doctoral degree requirement.
36-27A-14 Exemption from examination requirement.
36-27A-15 Exemption from internship requirement.
36-27A-16 Residence requirement for exemptions.
36-27A-17 American Board of Professional Psychology diploma--Exemption from license requirement.
36-27A-18 Demonstration of competence required--Variation by board.
36-27A-20 Reexamination after failure to pass--Additional fee.
36-27A-21 Application for license--Forms--Verification--Fee--Supporting evidence.
36-27A-22.1 Fee for initial licensure.
36-27A-23.1 Certain healing arts practitioners to participate in alternate health care delivery systems.
36-27A-27 Recommendations of civil action against violations.
36-27A-28 Revocation or suspension of license--Grounds.
36-27A-29 Proceedings for suspension or revocation--Reissuance.
36-27A-29.1 Special fee to pay for cost of disciplinary actions.
36-27A-30 Majority vote required for suspension or revocation.
36-27A-31 Appeals from board action.
36-27A-33 Enjoining or restraining violations.
36-27A-34 Investigation and prosecution of violations.
36-27A-34.1 Dismissal of frivolous or unfounded complaint--Complaint may be expunged from licensee's record.
36-27A-35 Record of licensees maintained--Certified copies as evidence--Fee for copies.
36-27A-36 Compensation of board members.
36-27A-37 Disposition of receipts by board--Special account--Appropriation--Limitation of expenses.
36-27A-38 Confidentiality of psychologist-patient relationship and communications.
36-27A-39 Immunity from liability of board members, agents and witnesses.
36-27A-40 Limited liability of members of board or professional society for actions taken to maintain standards--Professional society defined--Official immunity unaffected.
(iv) Individual differences: personality theory, human development, psychopathology, cultural diversity.
In addition to these criteria, the programs shall include course requirements in specialty areas of psychology.
(5) "The practice of psychology," the observation, description, evaluation, interpretation, and modification of human behavior by the application of psychological principles, methods, and procedures for the purpose of preventing or eliminating symptomatic, maladaptive, or undesired behavior and of enhancing interpersonal relationships, work and life adjustment, personal effectiveness, behavioral health, and mental health. The term includes psychological testing and the evaluation or assessment of personal characteristics, such as intelligence, personality, abilities, interests, aptitudes, and neuropsychological functioning; individual, marital, family, or group counseling; psychotherapy and other therapeutic techniques based on psychological principles; diagnosis and treatment of mental and emotional disorders or disabilities, compulsive disorders, disorders of habit or conduct as well as of the psychological aspects of physical illness, accident, injury, or disability; and psychoeducational evaluation, therapy, remediation, and consultation. The practice of psychology is the rendering of psychological services to individuals, families, groups, and the public and is without regard to whether payment is received for services rendered.
Source: SL 1976, ch 235, § 1; SDCL Supp, § 36-27-1; SL 1981, ch 281, § 1; SL 1995, ch 225, §§ 1, 2; SL 2008, ch 197, § 1.
(8) Employers in the normal course of evaluating and assessing the skills, aptitudes, and interests of employees and job applicants.
Source: SL 1976, ch 235, § 3; SDCL Supp, §§ 36-27-4 to 36-27-10; SL 1981, ch 281, § 2; SL 1995, ch 225, §§ 2A, 2B; SL 2008, ch 197, § 2; SL 2010, ch 77, § 25.
36-27A-3. Board of examiners-Number of members--Qualifications--Appointment. The Board of Examiners of Psychologists consists of seven members, two of whom shall be lay members. The remaining five members are to be psychologists licensed pursuant to this chapter at the doctoral level for a minimum of two years and broadly representing a cross section of the profession of psychology. The credentials of each psychologist on the board shall be documented and shall be public record as provided in chapter 1-27. The Governor shall appoint all of the members.
Source: SL 1976, ch 235, §§ 4, 7; SDCL Supp, § 36-27-11; SL 1981, ch 281, § 3; SL 2005, ch 199, § 63.
36-27A-4, 36-27A-5. Repealed by SL 2005, ch 199, §§ 64, 65.
36-27A-6. Terms of board members. Initial appointments to the Board of Examiners of Psychologists shall be for terms of one, two, and three years, respectively, with one member appointed for one year, two members appointed for two years and two members appointed for three years. Thereafter, appointments shall be for terms of three years, beginning on the thirty-first day of October. The appointee's term shall expire on October thirtieth in the third year of appointment.
Source: SL 1976, ch 235, §§ 4, 7; SDCL § 36-27-11; SL 1981, ch 281, § 6; SL 2012, ch 16, § 7.
36-27A-7. Removal of board members--Vacancies--Limitation of successive terms. The Governor may remove a member of the Board of Examiners of Psychologists for cause. If there is a vacancy on the board caused by the death, resignation, or removal from the state of a member or for any other reason, the Governor shall appoint a new member to serve the unexpired term. No member of the board may serve for more than three successive full terms. The appointment to an unexpired term is not considered a full term.
Source: SL 1976, ch 235, § 8; SDCL Supp, § 36-27-13; SL 1981, ch 281, § 7; SL 2005, ch 199, § 66.
36-27A-8. Meetings of board--Election of officers--Records of meetings. The board shall elect officers annually. The board shall meet at least once a year at a place and time determined by the president of the board. The board secretary is responsible for taking and keeping the minutes of all board meetings.
Source: SL 1976, ch 235, § 9; SDCL Supp, § 36-27-14; SL 1981, ch 281, § 8; SL 2008, ch 197, § 3.
36-27A-9. Board within Department of Social Services--Department providing administrative functions--Expenses--Reports. The Board of Examiners of Psychologists is within the Department of Social Services and shall exercise all its prescribed functions. The department shall provide all administrative functions other than those of the board member serving as secretary. The expenses of the department shall be paid from the account established in § 36-27A-37, on vouchers approved by the secretary of social services. The board shall submit records, information and reports in the form and at the time required by the secretary of social services.
Source: SL 1976, ch 235, § 10; SDCL Supp, § 36-27-17; SL 1981, ch 281, § 9; SL 1982, ch 15, § 6; SL 1983, ch 275; SL 2003, ch 272 (Ex. Ord. 03-1), § 45; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011.
36-27A-10. Representations as psychologist restricted. No person may represent himself as a psychologist, or engage in the practice of, or attempt to practice, psychology unless licensed pursuant to the provisions of this chapter or exempted under the provisions of § 36-27A-2.
Source: SL 1976, ch 235, § 11; SDCL Supp, § 36-27-3; SL 1981, ch 281, § 10; SL 1995, ch 225, § 4.
36-27A-11. License of another state. A psychologist licensed by another state, or by a province of Canada, may practice within this state for a maximum of six months, during which time the psychologist's credentials shall be reviewed and the psychologist's application for licensing accepted or denied. Within thirty calendar days after the commencement of the psychologist's practice in this state, the psychologist shall apply to the Board of Examiners of Psychologists for licensing. The board, upon application and payment of the license fee, shall license any person who is licensed by any other country, state, territory or possession of the United States, if the license was issued under the minimum requirements of this chapter and who has practiced at least five years in such jurisdiction, and who does not have a complaint pending with such state or province, or any other jurisdiction. The application shall include a consent by the applicant for the release of information by all prior jurisdictions where licensed of all information relative to the applicant, including any disciplinary proceedings even if, by agreement or otherwise, the proceedings are confidential.
Source: SL 1976, ch 235, § 12; SDCL Supp, § 36-27-22; SL 1981, ch 281, § 11; SL 2008, ch 197, § 4.
(5) Has not been convicted of a felony or a misdemeanor involving moral turpitude as defined in subdivision 22-1-2(25).
Source: SL 1976, ch 235, §§ 18, 20; SDCL Supp, § 36-27-21; SL 1981, ch 281, § 12; SL 1985, ch 301; SL 2008, ch 197, § 5.
36-27A-12.1. Provisional license. The board may issue a provisional license not to exceed twelve months in duration to an applicant who is completing the one-year of supervised postdoctoral psychology practice if the applicant has satisfied the requirements of subdivision 36-27A-12(1), passed a written national standardized examination, and has completed the supervised psychology internship as specified in subdivision 36-27A-12(3).
Source: SL 2000, ch 198, § 1; SL 2008, ch 197, § 6.
36-27A-13. Exemption from doctoral degree requirement. An applicant for licensure as a psychologist is exempt from the requirement of a doctoral degree in a program in psychology as listed in § 36-27A-12 if, for one year immediately preceding January 1, 1982, he has formally and consistently represented himself to the public as a psychologist, has a master's degree in psychology or primarily psychological in nature, and has spent the majority of his working hours in the practice of psychology, and if the Board of Examiners of Psychologists receives the application for licensure on or before January 1, 1982.
Source: SL 1981, ch 281, § 13.
36-27A-14. Exemption from examination requirement. An applicant for licensure as a psychologist is exempt from the examination requirement of § 36-27A-12 if the Board of Examiners of Psychologists receives the application for licensure on or before January 1, 1982.
Source: SL 1981, ch 281, § 14.
36-27A-15. Exemption from internship requirement. An applicant for licensure as a psychologist is exempt from the requirement of a psychological internship as listed in § 36-27A-12 if he has one year of psychological experience and if the Board of Examiners of Psychologists receives the application for licensure on or before January 1, 1982, or if the applicant received a doctoral degree prior to 1979 and the applicant is listed in the National Register of Health Service Providers in Psychology.
Source: SL 1981, ch 281, § 15; SL 1993, ch 296.
36-27A-16. Residence requirement for exemptions. To qualify for the exemptions specified in § 36-27A-13, 36-27A-14 or 36-27A-15, the applicant for licensure shall have lived in South Dakota for one year preceding the time the Board of Examiners of Psychologists receives the application for licensure.
Source: SL 1981, ch 281, § 16.
36-27A-17. American Board of Professional Psychology diploma--Exemption from license requirement. At the discretion of the board, an applicant for licensure as a psychologist is exempt from the requirements of § 36-27A-12, and any other examination requirements, if the applicant holds a diploma issued by the American Board of Professional Psychology, a current license to practice psychology in another state, and is not otherwise disqualified under the provisions of this chapter.
Source: SL 1981, ch 281, § 17; SL 1995, ch 225, § 3.
36-27A-18. Demonstration of competence required--Variation by board. By a unanimous vote of the Board of Examiners of Psychologists an applicant for licensure as a psychologist may be required to demonstrate competence in only three of the four substantive areas of study referred to in the definition of a program in psychology in § 36-27A-1. This is contingent upon the applicant submitting a satisfactory proposal outlining how he intends to remediate the deficiency in the fourth substantive area.
Source: SL 1981, ch 281, § 18.
36-27A-19. Fee for application. The application fee for a license to practice psychology shall be set by the Board of Examiners of Psychologists in rules promulgated pursuant to chapter 1-26. The fee may not exceed three hundred dollars. The application fee includes the oral examination required by this chapter. The applicant shall pay fees for the written national examination and any reexamination directly to the national examination company.
Source: SL 1976, ch 235, § 21; SDCL Supp, § 36-27-23; SL 1981, ch 281, § 19; SL 1993, ch 297, § 1; SL 2008, ch 191, § 61.
36-27A-20. Reexamination after failure to pass--Additional fee. An applicant who fails to pass the oral examination required by this chapter is entitled to reexamination within six months upon payment of an additional fee, not to exceed two hundred dollars, to be set by the Board of Examiners of Psychologists in rules promulgated pursuant to chapter 1-26. One reexamination exhausts the privilege under the original application. An applicant who fails to pass the written examination required by this chapter is entitled to reexamination within six months upon payment of an additional fee directly to the national examination company. One reexamination exhausts the privilege under the original application.
Source: SL 1976, ch 235, § 22; SDCL Supp, § 36-27-26; SL 1981, ch 281, § 20; SL 1993, ch 297, § 2; SL 2008, ch 191, § 62.
36-27A-21. Application for license--Forms--Verification--Fee--Supporting evidence. In applying for licensing, an applicant shall apply on forms prescribed by the Board of Examiners of Psychologists. The board shall require that the application be verified by a notary public. The license fee shall accompany the application. The board shall require each applicant to give evidence of the quality, scope, and nature of the applicant's experience and education. The application and all supporting evidence shall be public record as provided in chapter 1-27.
Source: SL 1976, ch 235, § 25; SDCL Supp, § 36-27-24; SL 1981, ch 281, § 21.
36-27A-22. Examinations--Time and place--Type. The board shall hold examinations at least semiannually at a place designated by the board. The type of examinations, including a national standardized examination, required shall be determined by the board.
Source: SL 1976, ch 235, § 26; SDCL Supp, § 36-27-25; SL 1981, ch 281, § 22; SL 2008, ch 197, § 7.
36-27A-22.1. Fee for initial licensure. After an applicant passes the oral and written examinations, the applicant shall pay a fee for initial licensure set by the Board of Examiners of Psychologists in rules promulgated pursuant to chapter 1-26, not to exceed three hundred fifty dollars.
Source: SL 1993, ch 297, § 3; SL 2008, ch 191, § 63.
36-27A-23. License contents--Signature--Seal--Display. The license issued by the Board of Examiners of Psychologists shall contain the full name of the licensee and shall bear a serial number and the address of the person licensed. The license shall be signed by the president and the secretary of the board under the seal of the board. Licenses shall be conspicuously displayed at the licensee's primary place of practice within thirty days after issuance.
Source: SL 1976, ch 235, § 28; SDCL Supp, § 36-27-29; SL 1981, ch 281, § 23.
36-27A-23.1. Certain healing arts practitioners to participate in alternate health care delivery systems. Any licensed psychologist may organize or contract for services with a corporation organized under the laws of this state by licensed practitioners of the healing arts, for the purpose of negotiating group health care contracts and providing services within the scope of their respective licenses with alternate health care delivery systems, including, but not limited to, health maintenance organizations, preferred provider organizations, individual practices organizations, or other similar forms of entity whatever.
36-27A-24. Renewal of license--Fee--Forfeiture--Restoration. The license shall be renewed annually by payment of a fee, not to exceed three hundred fifty dollars, to be set by the Board of Examiners of Psychologists in rules promulgated pursuant to chapter 1-26. The failure of a licensee to renew the license by the first day of July each year constitutes a forfeiture. However, a person who forfeits his license may have it restored by making written application and payment of the required renewal fee prior to the first day of January of the next year, following notification from the board.
Source: SL 1976, ch 235, § 29; SDCL Supp, § 36-27-30; SL 1981, ch 281, § 24; SL 1993, ch 297, § 4; SL 2008, ch 191, § 64.
36-27A-25. Code of ethics. The Board of Examiners of Psychologists shall adopt a code of ethics for psychologists licensed under this chapter which may be the current code of ethics of the American Psychological Association.
Source: SL 1981, ch 281, § 25.
36-27A-26. Continuing education required--Records--Reports. The Board of Examiners of Psychologists shall maintain a record of the continuing education for each licensee. A report of the continuing education shall be a part of the renewal application for licensure. The type and amount of continuing education required shall not exceed six continuing education units per year and shall be set by the board in rules adopted pursuant to chapter 1-26.
Source: SL 1976, ch 235, § 33; SDCL Supp, § 36-27-33; SL 1981, ch 281, § 26.
36-27A-27. Recommendations of civil action against violations. The Board of Examiners of Psychologists shall recommend to the attorney general the bringing of civil actions to seek injunctions and other relief against violations of this chapter.
Source: SL 1976, ch 235, § 35; SDCL Supp, § 36-27-47; SL 1981, ch 281, § 28.
(11) The licensee has violated any provision of this chapter or the rules promulgated by the board.
Source: SL 1976, ch 235, § 36; SDCL Supp, § 36-27-38; SL 1981, ch 281, § 29; SL 2008, ch 197, § 8.
36-27A-29. Proceedings for suspension or revocation--Reissuance. The proceedings for suspension or revocation of a license may be initiated if the Board of Examiners of Psychologists has information that a licensee may be guilty of any misconduct listed in § 36-27A-28. All proceedings related to the revocation or suspension of a license shall conform to the procedure set forth in chapter 1-26.
Source: SL 1976, ch 235, § 37; SDCL Supp, § 36-27-38; SL 1981, ch 281, § 30; SL 1993, ch 297, § 5.
36-27A-29.1. Special fee to pay for cost of disciplinary actions. If payment of costs incurred in carrying out a license revocation or other disciplinary action prevents the Board of Examiners of Psychologists from meeting its other financial obligations, the board, upon the approval of a majority of its members, may assess each licensee a special fee to make up the deficit. The Board of Examiners of Psychologists shall set the special fee, not to exceed three hundred dollars a year, in rules promulgated pursuant to chapter 1-26. If the special fee is assessed, a licensee is ineligible to renew the license until the payment of the fee.
Source: SL 1993, ch 297, § 6; SL 2008, ch 191, § 65.
36-27A-30. Majority vote required for suspension or revocation. The decision of the board to suspend, revoke, or deny a license requires a majority vote of all the board members.
Source: SL 1976, ch 235, § 39; SDCL Supp, § 36-27-41; SL 1981, ch 281, § 31; SL 2008, ch 197, § 9.
36-27A-31. Appeals from board action. Any person aggrieved by an act, ruling, or decision of the Board of Examiners of Psychologists may appeal pursuant to chapter 1-26.
Source: SL 1976, ch 235, § 40; SDCL Supp, § 36-27-44; SL 1981, ch 281, § 32.
36-27A-32. Reinstatement of license--Procedure. Upon written application establishing compliance with existing licensing requirements and for reasons the Board of Examiners of Psychologists deems sufficient, the board for good cause shown, by majority vote, may, under the conditions it may impose, reinstate, or reissue a license to any person whose license has been suspended or revoked.
Source: SL 1976, ch 235, § 41; SDCL Supp, § 36-27-42; SL 1981, ch 281, § 33.
36-27A-33. Enjoining or restraining violations. A person violating the provisions of this chapter may be enjoined from further violations by an action brought by the state's attorney of the county where the violations occurred or by action brought by any citizen in this state. The attorney general, the Board of Examiners of Psychologists or the state's attorney may apply to the circuit court for the county in which a violation of this chapter is alleged to have occurred for an order enjoining or restraining the commission or continuance of the acts.
Source: SL 1976, ch 235, § 42; SDCL Supp, § 36-27-48; SL 1981, ch 281, § 34.
36-27A-34. Investigation and prosecution of violations. The Board of Examiners of Psychologists shall investigate every alleged violation of this chapter. The board may employ special counsel, subject to approval, supervision, control, and direction by the attorney general, to assist in the prosecution of violations of this chapter, and to spend the necessary funds for that purpose.
Source: SL 1976, ch 235, § 43; SDCL Supp, § 36-27-46; SL 1981, ch 281, § 35.
36-27A-34.1. Dismissal of frivolous or unfounded complaint--Complaint may be expunged from licensee's record. If the board determines that any complaint was frivolous or clearly unfounded in fact, the board may dismiss the complaint and, by separate and unanimous vote of the board, may expunge such complaint from the record of the licensee.
Source: SL 1999, ch 198, § 1.
36-27A-35. Record of licensees maintained--Certified copies as evidence--Fee for copies. The Department of Social Services shall keep a record of the names of all persons licensed under this chapter, the license number of each, the date of each license and renewal, and other matters of record. A transcript of any record therein or a license that is entered therein, the name, license number, and date of granting or renewal of that license to a person charged with a violation of any of the provisions of this chapter, certified by the president and the secretary, shall all be admitted as evidence in any of the courts of the State of South Dakota. The original books, records, and papers of the Board of Examiners of Psychologists shall be kept at the office of the Department of Social Services and another copy shall be filed with the secretary. The secretary shall furnish to any person making application therefor, a copy of any record certified by him as secretary, upon payment of a fee to be established by the board in rules adopted pursuant to chapter 1-26.
Source: SL 1976, ch 235, § 44; SDCL Supp, § 36-27-31; SL 1981, ch 281, § 36; SL 2003, ch 272 (Ex. Ord. 03-1), § 45; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011.
36-27A-36. Compensation of board members. The Board of Examiners of Psychologists members shall be paid per diem and reimbursed expenses at a rate not to exceed the same rate as other state employees while engaged in their official duties.
Source: SL 1976, ch 235, § 45; SDCL Supp, § 36-27-15; SL 1981, ch 281, § 37.
36-27A-37. Disposition of receipts by board--Special account--Appropriation--Limitation of expenses. All money coming into the custody of the Board of Examiners of Psychologists each calendar month shall be paid to the state treasurer on or before the tenth day of the next month. The state treasurer shall keep the money in a separate account for the South Dakota Board of Examiners of Psychologists. The money in that account is continuously appropriated to the board for administering and enforcing this chapter. The total expense incurred may not exceed the total money collected by the board under the provisions of this chapter.
Source: SL 1976, ch 235, § 46; SDCL Supp, § 36-27-16; SL 1981, ch 281, § 38.
36-27A-38. Confidentiality of psychologist-patient relationship and communications. The confidential relations and communications between a licensed psychologist and a person consulting him in his professional capacity are confidential. Nothing in this chapter may be construed as to require those privileged communications to be disclosed; nor may a psychologist's secretary, stenographer or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
Source: SL 1981, ch 281, § 39.
36-27A-39. Immunity from liability of board members, agents and witnesses. The members of the Board of Examiners of Psychologists, and those acting in the name of the board, when carrying out their duties under this chapter, and those testifying before the board in good faith, may not be held personally liable and the board may insure itself against liability.
Source: SL 1981, ch 281, § 40.
36-27A-40. Limited liability of members of board or professional society for actions taken to maintain standards--Professional society defined--Official immunity unaffected. There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed committee of the Board of Examiners of Psychologists created pursuant to § 36-27A-3 or of a state professional society, comprised of psychologists licensed to practice their profession in the State of South Dakota, for any act or proceeding undertaken or performed within the scope of the functions of any such committee which is formed to maintain the duly established professional standards of the society or the requirements of law or peer review of insurance or other similar matters, if such committee member acts without malice, has made a reasonable effort to obtain the facts of the matter as to which he acts, and acts in a reasonable belief that the action taken by him is warranted by the facts known to him after such reasonable effort to obtain facts. "Professional society" includes organizations of psychologists having as members at least a majority of the eligible licensees in the state. The provisions of this section do not affect the official immunity of any officer or employee of a public corporation or of psychologists serving on a committee or board or other entity authorized by state or federal law.
Source: SL 1986, ch 419, § 1A.


text:
Adamchick v. Wyoming Val. Col. Co.
Workmen's compensation — Accident — Definition — Injury — Evidence — Causation — Act of June 2, 1915, P. L. 736.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN and STERN, JJ.
Appeal, No. 315, Jan. T., 1938, from judgment of Superior Court, Feb. T., 1938, No. 28, reversing judgment of C. P. Luzerne Co., March T., 1937, No. 1572, in case of Mrs. Margaret Adamchick v. Wyoming Valley Collieries Company. Judgment of Superior Court reversed and judgment of Common Pleas in favor of defendant reinstated.
Appeal by defendant from award of Workmen's Compensation Board.
Award set aside and judgment entered for defendant, opinion by COUGHLIN, J. Claimant appealed to Superior Court, which reversed the judgment of the court below. Appeal by defendant allowed to Supreme Court. Errors assigned related to the action of the Superior Court in sustaining claimant's assignment of error.
Wm. A. Schnader, with him Wm. A. Skinner, for appellant.
Roger J. Dever, for appellee.
Are the widow and minor child of George Adamchick entitled to receive compensation from his employer, Wyoming Valley Collieries Company, as a result of his death? It is claimed that his death resulted from a fracture of the sixth cervical vertebra, due to an accident at the employer's mine. To establish their claim, it must be shown that the deceased met with an accident while engaged in the course of his employment. The referee found there was no proof of an accident. The Workmen's Compensation Board concluded there was such proof. On appeal to the Court of Common Pleas, that tribunal agreed with the referee. When the dispute was carried to the Superior Court, its view coincided with that of the Board ( 131 Pa. Super. 72) . With these conflicting determinations before us, we are to decide whether an accident was proven.
Prior to November, 1932, a fibro sarcoma, a malignant growth, developed on the left side of the neck of the deceased. It was removed by an operation on the 19th of that month. The wound healed and Adamchick returned to work on December 15th. On January 9, 1933, he was employed by defendant as a helper to Anthony Kaminski, a miner. At that time, he was taking pills and told Kaminski that he did not feel good. On the following day, January 10th, so his wife testified, he was "all right" when he left home, in the early morning. The two men began work about half past six. It became necessary for them to carry three mine railroad ties about fifty feet. The ties were four and one-half feet long and weighed ten or fifteen pounds each. Describing what happened, Kaminski said Adamchick took two of the ties and placed them upon his, Kaminski's back. The latter told the deceased to take the remaining one. Kaminski did not see Adamchick pick up the tie. When the former reached the place where the ties were to be put, Adamchick came to him, not carrying the tie, saying, "Oh my neck, Oh my neck," adding that he did not want to work that day and desired to go home. Kaminski said the deceased did not tell him he had been hurt by the tie. Kaminski took him to the shanty where the "bosses" were. One of the mine officials testified that Adamchick, when he arrived at the shanty, was asked what had happened to him, if anything had fallen on him, or hit him, and he answered no, that he was stooping over in the act of picking up a tie when he got a pain in his shoulder. Another of the mine officials testified that from the position of the man he thought something had hit him on the shoulder; he asked what had hit him and Adamchick said nothing had hit him, "something just took me in the neck," as he started to pick up the tie. The third mine official related the same story. All of the foregoing negatives the idea of an accident. If the deceased met with an accident, there is nothing to show that it occurred on defendant's property or when or where it happened. No explanation was offered to indicate how Adamchick could have suffered a fracture of the sixth cervical vertebra, which is located about eight inches below the point where the spinal column enters the skull, by anything he did on January 10, 1933. The Compensation Act (June 2, 1915, P. L. 736, Sec. 301, 77 PS Sec. 431) provides for "compensation for personal injury to, or for the death of, such employee, by an accident, in the course of his employment." In Billo v. Allegheny Steel Co., 328 Pa. 97, 195 A. 110, speaking through Mr. Justice MAXEY, we said (p. 101): "The conclusion is inescapable that only when an employee meets with an accident in the course of his employment do the provisions of the act become operative as to him," and in Gausman v. Pearson Co., 284 Pa. 348, 354, 131 A. 247, we declared: "Disability, overtaking an employee at his work, is not compensable unless the result of accident . . . neither can death or disability overtaking an employee in the course of his employment and resulting from a natural cause; if it could, it would render the employer an insurer of the life and health of the employee."
On this phase of the case, the Superior Court in its opinion says ( 131 Pa. Super. 72, 75): "There is no direct testimony that the handling of the mine ties by deceased caused the fracture, but we are of the opinion that the circumstances are such as to warrant that inference, and to support the finding of the board that the fractured vertebra was sustained by an accident on January 10, 1933." We are unable to find any evidence in the record showing circumstances which would warrant the inference. It is further said: "This inference is warranted, as the board has pointed out, by the natural sequence of events. Deceased was in apparent good health. [The evidence indicates otherwise. He was taking pills; did not feel good and the X-ray taken on the day he complained of his neck and entered the hospital showed a "mass" in his neck indicating the return of the sarcoma.] A few moments after lifting the mine ties to the shoulder of Kaminski he made complaint, indicating that something unusual and extraordinary had happened to him." The testimony does not show anything happening except his having pain in his neck. What he said to the mine officials at the shanty amounts to a denial that any accident had happened. In the opinion it is further said: "Manifestations of an injury were immediately apparent after deceased lifted the ties." If by this is meant injury from an accident, the testimony fails to show it. The Superior Court recognized the rule that the mere fact that an employee is overcome while at work does not of itself support an award of compensation, but bases its conclusion that the claimant here is entitled to an award, notwithstanding this rule, on the following: "But in the present case deceased was in good health immediately before handling the ties, and immediately after indicated that something unusual had happened to him, which, upon removal to the hospital, was found to be a fractured vertebra. A bone fracture from such an act in the course of the normal duties of an employee is an injury by accident, or an accidental injury. Such break was not an occurrence in the normal, ordinary or usual progress of a disease. It is argued on behalf of appellee that there was no evidence that the alleged 'chip' from the margin of the vertebra was due to violence from accidental means. This contention is not sound. We have repeatedly stated that there is a distinction between 'an accidental injury' and 'an injury by accidental means.' " This conclusion we think disregards the established facts that Adamchick was not in good health, that there was no evidence of any kind on his body that he had been struck by anything, his own declaration to the mine officials that he had not been, and the proof that he had not picked up the tie, which was the only thing that could have injured his vertebra. In this connection, it is important to remember that he declared to the mine officials that nothing had fallen on him or hit him but that he was stooping over in the act of picking up the tie when the pain in his neck occurred.
The finding of the referee, under the proofs submitted, was the correct finding. It was, "From the preponderance of evidence in this case, consisting of medical and lay testimony, we must conclude that there is nothing herein to warrant us in finding that the disability suffered by the decedent, which resulted in his death, was due to any accident occurring on January 10, 1933, in the mines of the employer. From the testimony given in the case, we are led to conclude that the disability and death of the decedent was entirely due to the sarcoma which he suffered prior to the time of the alleged accident, without any aggravation thereto by any injury sustained on January 10, 1933. Under all the testimony we can find no evidence which would warrant us in finding that the decedent did sustain an injury in an accident on January 10, 1933." This finding met the approval of the Court of Common Pleas, which says in its opinion: "The mere fact that he suffered pain in the region of the neck is not unexplainable without the happening of an accident, since there is much testimony that he did have a cancer. We fail to find testimony that there was an accident, and we do find testimony accounting for a death through natural causes." The board was in error in saying: "That the weight of the evidence, together with the natural sequence of events, supports a conclusion that death resulted from complications growing out of an accident sustained while at work in the defendant's mine on January 10, 1933." The board did not pursue the proper legal pathway in reaching the conclusion which it did by stating that, while there was no direct proof of any accident happening, "There is some testimony of fellow employees to the effect that there was no accident, and some of these witnesses, including the mine foreman and his assistants, testified to alleged statements of the deceased to the effect that there was no accident. However, it seems to us that if a claimant, in the absence of direct proof, is compelled to rely entirely upon the statements of fellow employees who are often not in a position to testify freely because of their interest, a great hardship would be worked as to many worthy claims." There was nothing shown to impugn the statements of the mine officials as to the declarations made by Adamchick to them that nothing had fallen on him and that he had not met with an accident. No testimony in the case shows that he did and on the other phase of the case, the testimony of the doctors, grave doubts are raised as to whether there was a fracture of the vertebra.
Dr. Davis, called by claimant, who took charge of Adamchick when he was admitted to the hospital, said that Adamchick stated he was attempting to lift a tie and was seized with a pain in the neck. He had X-rays taken by another doctor, Dr. Howell, whose report was: "There is a fragment of bone fractured off the lower anterior margin of the sixth cervical vertebra. It is slightly depressed. There is no pathology of the skull." Dr. Davis testified that he saw the X-rays and disagreed with the report and with a diagnosis of a fracture of the vertebra, and that, if a fracture was present, it was due to sarcoma. Dr. Howell testified that the X-ray plate showed, as above outlined, that he could not state whether the fracture appearing was due to trauma or disease and that the plate also showed a mass on the side of the neck. Dr. Brown, who attended Adamchick from the time he left the hospital until he died on April 8, 1933, said that his later condition of loss of motion and paralysis and ultimate death was due to pressure on the spinal cord, to which the fracture contributed but without an autopsy (which the claimant refused) he was unable to tell what caused the pressure on the spinal cord. Dr. Daley, one of the surgeons who removed the sarcoma in November, 1932, gave it as his opinion, in answer to a hypothetical question, that the fracture described by Dr. Howell caused the death. In arriving at the conclusion that the deceased had met with an accident, he took into account that the claimant had told him her husband "had put a prop on his neck." This statement it is obvious he should not have taken into account. Dr. McLaughlin, the other surgeon who performed the sarcoma operation, in answer to a hypothetical question inquiring whether the fractured vertebra was a contributory factor in the death, said he thought so. Dr. Hanlon, called by claimant, answering the hypothetical question, gave it as his opinion that the fractured vertebra was the cause of death. Dr. Jackson, called by defendants, a specialist in Roentgenology, with thirty years' experience, testified that he had examined the X-rays taken by Dr. Howell and that they did not show any fracture of the vertebra or any fragments of bone fractured from its margin, and that in his opinion the deceased suffered a typical malignant death from a metastasis to the spinal cord, that, taking into account the removal of the sarcoma from his neck, the later pain in his neck was due to the sarcoma recurring. Dr. Davis, recalled by defendant, said that there were no marks, bruises or abrasions on the body of the deceased when he examined him on his entrance to the hospital and that the symptoms described by his physicians, who attended him after he left the hospital, were absolutely typical of a death from sarcoma. Dr. Grover, who was called in consultation with Dr. Davis, when Adamchick entered the hospital, said that he did not agree with Dr. Howell that the X-ray showed a fracture, that there were no marks, bruises or abrasions upon the patient, that he suffered no paralysis while in the hospital, and that if he had sustained a fracture of the vertebra, which affected the spinal cord in any way, there would have been some manifestation of paralysis immediately and that in his opinion death was due to the sarcoma. Dr. Rogers, called on behalf of defendant, who specialized as a Roentgenologist, and who examined the X-ray films while on the witness stand, testified that he could see no evidence of fracture or dislocation. While we do not base our conclusion upon the medical testimony, we feel bound to say that it raises a grave doubt in our minds as to whether a fracture existed. We rest our conclusion solely upon the absence of proof of an accident. Lacey v. Washburn Williams Co., 309 Pa. 574, 164 A. 724, reviews the cases dealing with the question of what constitutes an injury by an accident within the meaning of the Workmen's Compensation Act. We there said, speaking through Mr. Justice DREW (p. 577): "The word accident — as used in the act — must be interpreted in its usual, ordinary, popular sense. Webster has defined it as 'an event that takes place without one's foresight or expectation; an undesigned, sudden, and unexpected event; chance, contingency.' Many courts have quoted this definition, and some have added to or embellished it, but in reality few have improved upon it. It would answer no good purpose to call attention to the many immaterial variations and additions. Our decisions interpreting the word as used in our compensation law have substantially clung to this meaning. . . . It is, therefore, absolutely indispensable that the important words and clauses of that statute be interpreted without ambiguity. It is further essential, in deciding the multitude of border line cases, first to determine definitely the real meaning of the word 'accident' as used in the act and the general principles by which its interpretation must be governed, and then to reason closely in order to apply clearly those principles. That which distinguishes an accident from other events is the element of being unforeseen; an accident is an occurrence which proceeds from an unknown cause, or which is an unusual effect of a known cause, and hence unexpected and unforeseen. The death of an employee, unless it is the result of some untoward happening, not expected or designed, a mishap or fortuitous happening, aside from the usual course of events, is not compensable under our statute. An examination of the decisions of this court and of our Superior Court, dealing with situations similar to that now before us, brings out clearly the distinction between compensable and noncompensable deaths; it will be found that in all cases where compensation was awarded some 'untoward occurrence,' some 'unforeseeable mishap,' was the operative cause of the employee's death, while in those cases in which compensation was denied, no such unusual happening occurred."
When the exact cause of death can be determined only by an autopsy and the claimant refuses to permit it to be performed, the responsibility must rest with her: Walsh v. Lockhart I. S. Co., 118 Pa. Super. 467, 180 A. 123; Swiderski v. Glen Alden Coal Co., 114 Pa. Super. 21, 173 A. 865; Carroll v. Willow Brook Co., 108 Pa. Super. 580, 165 A. 550; Riley v. Carnegie Steel Co., 276 Pa. 82, 119 A. 832.
After giving careful consideration to the provisions of the Workmen's Compensation Act, the policy which underlies it, our own decisions and those of the Superior Court, not all of which seem to be in full harmony, our conclusion is that to secure compensation there must be proof both of an accident and of an injury; an accident cannot be inferred merely from an injury. There must be some evidence of an accident, either direct or circumstantial, in the latter instance clearly and logically indicating it. In this case, there was none. Nor can an injury be inferred simply because there was an accident. There must be proof that the injury resulted from an accident.
The judgment of the Superior Court is reversed and the judgment of the Common Pleas in favor of defendant is reinstated.

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