*1 individually must be named and served in ries. Accordingly, we affirm the bank- suit, the action or a later and judgment ruptcy court’s disallowance of claims. partner, against entered in order to AFFIRMED. assets.”). personal partner’s reach the Thus, under although state law each indi- partner
vidual liable debts of the partnership, against a claim partner-
ship automatically give does not rise to a right against to collect part- individual Instead,
ners. may creditor collect a debt for which the partner jointly severally only by liable first obtaining ADAMS, Plaintiff-Appellant, Carol judgment against partner. v.
The IRS has no judgment obtained against Debtors. The time for doing so COMPANY, SYNTHES SPINE 6501(a). expired. § has 26 U.S.C. As we LP, Defendant-Appellee. explained, have the assessment extended No. 00-35094. statute of limitations as to the Partnership. United States Court Appeals, Ninth Circuit.
CONCLUSION Submitted assessment Oct. against the 2001.1 Partnership was not an against assessment the individ- Filed Aug. (Debtors), ual partners separate taxpayers. Consequently, the as-
sessment against the Partnership extended (to the statute of years limitations ten assessment) from the date of only for the Partnership; it had no effect on the ordi- nary three-year statute of limitations for
Debtors.
California partnership law does not aid because, law, the IRS under state a credi- tor may not collect a partnership debt
from an individual partner without first
obtaining a judgment against partner. did IRS not obtain a against Debtors, and it is too late to do so because the applicable statute of limitations was years.
three Thus, the IRS does have allowable bankruptcy claims under either of its theo- panel
1. The unanimously 34(a)(2). finds this case R.App. suit- Fed. P. able for argument. decision without oral See
OPINION
KLEINFELD, Judge. Circuit involving This is a law, just a question of federal questions law.2 of state
Facts severe back persistent Adams
Carol her radiating down into pain, and neck by spurring caused pain fingers. of the deterioration vertebrae and on her to did not respond her neck. It disks in steroids, traction, or other conservative treatment, to have so she elected disks. and the bad spurs to remove disks three neurosurgeon removed Her To maintain of three vertebrae. parts he spine, removed stability of and inserted hip from her of bone piece is a vertebrae. This in her neck in the gap fusion to the cervical way do standard performing. he was operation still has to held The neck be hip piece until the or so three months to form a the neck bones with bone fuses for the removed stable substitute solid and done, used to This be of vertebrae. pieces re- magnitude, of this operation in an for four wear a halo patient to quiring drilled into Holes would be Bellevue, (briefed), months. David A. Williams to screw order patient skull of WA, appellant. for the skull, the halo would halo to (briefed), Tompkins W. Christopher Obviously, vest. by kind place held in Seattle, Mines, P.S., Betts, & Patterson bear. patient for the was hard this WA, appellee. for the awith came out Spine of drill- Instead the halo. to avoid device requir- head and patient’s in the ing holes halo, the affixed patient wear ing the a metal screw surgeon surgery. during the spine the bones while place bones hold the This would KLEINFELD, FERGUSON, Before: doctor, Leslie Ms. Adams’ they fused. GOULD, Judges. Circuit pa- M.D., that while Bornfleth, testified they advised that routinely tients by Judge FERGUSON. Dissent 36-2(g). Rule Circuit pursuant to published Ninth opinion is 2. This instead, have the halo none could wanted it removal, final decision on implant we opt once Spine recommend that possible whenever Adams made that plate. Ms. election. practical for the patient, individual fixa- tion devices should be once removed operation went fine. The bones in *3 their as an aid healing service to is properly neck Ms. Adams’ fused. But later, accomplished. Implant years Ms. Adams had removal should three pain difficulty neck and followed swallowing, postoperative and (Dr. Allan Drapkin, J. M.D. management consulted to avoid refracture. by then prac- Bornfleth had retired from Despite this manufacturer’s recommen- tice). Drapkin’s x-rays Dr. showed that dation, a lot of surgeons don’t remove the plate had broken and one of the screws implants. Dr. Bornfleth went meetings to solid, out. partly come fusion was where surgeons discussed how to use the and was no plate longer necessary to implants, and the consensus was “there is spine hold her together, so Dr. Drapkin no reason to take the plates out because if surgery recommended to “remove the there, fusion is solid and plate plate, particularly that remove screw” it’s to cause no going problem.” As Dr. to relieve compres- order “mechanical Drapkin, who removed the plate, broken esophagus.” sion on performed He testified, the risk of a plate breaking is surgery, the removal and it succeeded small,” “very so ordinarily “there is no complication. without reason expose to patient to a risk of a buy can’t one of person Synthes these second surgery on a routine to basis” re- Spine plates at the drugstore. They are move it. Drapkin Dr. said he would still only physicians. Bornfleth, sold to Dr. use a Spine plate if he per- neurosurgeon- few, quite who installed forming this sort surgery, even after did not even have them in They his office. Ms. Adams’ broke. She was the were kept hospital. at the This was a person unfortunate for whom “very device, fairly medical new Dr. when Born- materialized, small” risk necessitating re- (four fleth installed it in 1995 years after moval. introduction), its and was to and sold used Ms. Adams sued Spine for sell- by physicians such as Dr. Bornfleth. ing a product: defective Her damages The directions that come with the device pain in her throat after the say to remove it once the bones have broke, the anxiety of the days several fused. In the “Precautions” section of between Drapkin’s Dr. telling her was “SUGGESTIONS CONCERNING broken and performing to re- ORTHOPAEDIC METALLIC INTER- it, move pain associated and suffering NAL DEVICES,” FIXATION the instruc- expenses. and medical The district court say tions implants these can break. granted summary judgment against Ms. surgeon So. “[w]hile must make the Adams, and she appeals on the theory that decision,” final the instructions recommend was defectively be- designed the implants be removed once the bones, cause it break. have fused: healing.
Removal after fracture Me- Analysis loosen, tallic implants fracture, can cor- rode, migrate, summary We review novo, pain, or stress de .cause whether, shield bone even after a fracture determine viewing has the evi- healed, particularly in young, pa- active dence the light most to the favorable tients. While the surgeon must make nonmoving party, there any genuine vaccines, like, drugs, ... “many re- Having so fact.3 of material issues very reason case, of which for this cannot many have concluded we viewed the analyzed except physicians, deci- carefully legally be sold judge’s the district correct, physician.”9 we affirm. of a prescription under the sion given,” the sell “proper Where case, as plaintiffs theory of to strict for er “is not to be held didn’t is that appeal, on briefed consequences attending their unfortunate to the reasonable conform use.”10 Bornfleth, consumer, adequately broke, he wasn’t warned rule not Washington applies this that it could break. medical as' vaccines such *4 diseases, but, the Daikon deadly as Shield Washington statute applicable The illustrates, much more broadly, that in liability says determin products on physician acts products where medical safe,” “reasonably product a ing whether intermediary between the aas “learned consider whether fact “shall the trier of patient.”11 manufacturer or seller be unsafe to an extent Terhune, ap was whether to In issue by contemplated yond which would product, ply the rule to a Daikon Wash Under ordinary consumer.”4 to; Shield, a not essential “cure that was law, prescrip of a the “consumer” ington a merely “requirefd] physi malady” but as this is the such tion-only medical device services, knowledge his cian’s in it is patient not the whom physician, 12 that the manufac The court held skill.” installed,5 plaintiff which point critical a only physi ran to the duty turer’s to warn concedes. cian, “the patient, and manufac not to the in held Washington Supreme Court , to account if it not be held turer should the man AH. Co.6that v. Robins Terhune regard” pro in duty its this has done of the Daikon Shield was ufacturer physi information to the appropriate vided uterus strictly to a woman whose liable decides, cian, though “even one, because medical perforated judgment, of his own in the exercise prescription on “available products pa information from his withhold the are, physician”7 of a through the services 13 tient.” as under falling treated Washington, any doubt about Had there been (Second) of Restatement comment of the k Terhune, it vigor and breadth it, puts § the Restatement Torts 402A.8As recent by the more been eliminated have being “incapable products some Pharmaceuticals, Key benefit, Young v. case of but, of their safe” because made Young, an asthma treatment as Inc.14 dangerous,” such “unreasonably are not (Second) § cmt. of Torts 402A Shumway, F.3d 9. Restátement v. 199 3. See States United Cir.1999); original). 1093, (9th (emphasis in k Fed.R.Civ.P. 1102-03 56(c). Id. 10. 7.72.030(3). § 4. Wash. Rev.Code Terhune, P.2d at 978. 11. 577 Co., 90 Wash.2d v. Robins
5. See A.H. Terhune 9, 577 (1978). P.2d 978 Id.' 12. 6. Id. Id. at 13. 979. Id. at 978. (1996) (en P.2d 59 922 14. 130 Wash.2d banc). 8.Id. at 977. severe, damage they generally agree brain with the rec- permanent didn’t
caused child, known risk occasional Drapkin explained a small ommendation. Dr. Washington materialized.15 Su ly why- surgery risk of the to remove —-the applied held that comment k preme Court in, leaving exceeded the risk it (which say liability most, that strict did not is to cases wouldn’t break. products” medical “prescription apply) surgery safely second be left for any separate determination on without rare cases when broke. Even the case-by-case basis “because of the charac sometimes, rarest happen events to some- profession ter the medical and the ac extremely one. It is unfortunate that Ms. tive, physi intermediate involvement of a someone, Adams was that that she suf- cian.” pain, anxiety fered from a broken (Because liability This is a strict case. The Synthes Spine plate. argu- her no evidence in district plaintiff offered implies Synthes Spine giv- ment argument negli here for a court and en an warning, Bornfleth Washington law gence theory. And rules opened up would have her per- neck and prescription out medical strict formed a second to remove the Spine plate, such fused, device after her bones she can’t *5 provided proper warning given that is to really complaining getting about sec- physician. surgery, just ond that the breaking of the given warning As for whether the was plate great caused deal of mental dis- adequate, argument basically is appellant’s pain leading up tress and to the second warning enough that the wasn’t clear for a surgery.) understand, doctor to notice or and “most any There isn’t evidence in the record convincingly, it was obvious that the ‘warn- jurors from which reasonable could con- ing’ inadequate was because NO ONE clude that warning inadequate. was It IT.”17 As for whether it FOLLOWS was plainly plate said that the could break and enough clear for a to read and that the manufacturer recommended re- it, there that understand was evidence moval. physicians That didn’t follow the Dr. Bornfleth testified that he wasn’t. they recommendation 'doesn’t show that it. probably read The words in the warn- it, couldn’t or didn’t read it and understand more, perfectly clear. ing are this What’s just that their medical judgment, something physicians just isn’t where mail wasn’t wise to follow it. Dr. Bornfleth it, directions, away read the for and start testified that “surprised” he was that the screwing things patients’ these onto broke Ms. Adams’ case. That spines. Dr. Bornfleth testified that he professional meetings went to doesn’t anything inadequate where use of show about the, by profession- these devices was discussed warning, just that breakage was rare. field, als in his understanding occurs, Whenever a rare event the occur- removed, that the device shouldn’t be even rence surprising. People often choose though the manufacturer said it should be. bear risk of a rare event in order to avoid a certain and unattractive alterna- surgeons usually
That the did not re- tive, which in they move the device does not show that this case would be a second warning, just didn’t understand the surgery, unnecessary in most cases. 15. Id. at 61. Appellant 17.Brief for at Adams v. Co., Spine (emphasis origi- No. 00-35094 (internal quotation 16. Id. at 64 citations and nal). omitted). marks Adams, on the most favorable to Ms. whether the to be based The dissent seems ade- correctly had the been applied notion District Court rele- know that physicians all quate, vant substantive law and whether there Synthes Spine plate to remove the ought any genuine issues of material fact. fused. That is sim- after the bones have (citation omitted). weight Id. We must not col- dissenting our ply a substitution of the evidence or determine the truth of the the medical judgment for league’s medical matter, but determine whether there and ortho- neurosurgeons judgment of material genuine is a issue of fact for trial. actually have the ex- surgeons who paedic Inc., Cedarapids, Meade v. 164 F.3d to make knowledge needed perience (9th Cir.1999) (citation omitted). judgments about competent medical record in this gives rise to two ought a device whether and when such fact, pre- issues of material which from Their differs be removed. granting summary judgment clude the suppose his. It is not reasonable (1) Synthes Spine: in favor of whether the “precaution,” words is because the by Synthes Spine manufactured fracture,” “the plate may “the expecta- defective under the “reasonable are too difficult and be removed” should test,1 tion of the consumer” and wheth- neurosurgeons orthopaed- obscure Synthes Spine er was sheltered to read and understand. surgeons ic k affirmative defense of comment just that one They’ve decided (Second) Restatement of Torts. two, except in the occasional better than the device breaks. As instances where Expectation A. Reasonable Con- testified, surgery to re- Bornfleth sumer Test *6 surgical device entails the usual move the the reasonable of the expectation Under infection, anaesthesia, etc., in and risks of test, the issue is whether the consumer run- judgment, that risk wasn’t worth his expectations of Dr. Leslie reasonable ning. Bornfleth, prescribing physician, the AFFIRMED. held that Dr. met.2 The District Court of expectations Bornfleth’s the FERGUSON, Judge, dissenting. Circuit met as a matter of law because Dr. and, thus, I go jury to a This case should break, could Bornfleth knew screws case, In this the Dis- respectfully dissent. fracture, migrate. summary judgment for granted trict Court However, incorrectly the District Court grant summary judg- of Spine. of the record that parts overlooked other de novo. Delta Sav. ment is reviewed as to whether Dr. genuine raised a issue States, 1017, 1021 Bank v. United 265 F.3d itself expected plate Bornfleth the omitted). (9th Cir.2001) (citations re- Our fracture, requiring removal. In thus by standard governed view is the same Dr. Bornfleth stated: deposition, his 56(c) under Rule of by used the trial court the I don’t know the circumstances of Procedure. Id. the Federal Rule of Civil mean, (citation omitted). if a Thus, I she had solid breakage. we must deter- mine, plate and for reason the light the evidence in the fusion some viewing majority, by relevant "ordi- Although specifically described as the 2. As stated the the not expecta- nary under the consumer expectation of the consumer” consumer” "reasonable test, prescribing physician majority in this test that the tion test is this is same Co., 90 Wash.2d arising Washington case. Terhune v. A.H. Robins under the discusses (1978). Maj. Op. P.2d 978 Liability Act. at 1116-17. Products
broke, surprised, ing deposition, I would be kind of he concluded one, were, say, warnings but unless she in that in package number insert or something of accident bad might apply plates some kind to cervical But I am kind of at a loss happened. weight of the minimal of the head com- fracture, why plate explain pared parts body. other His faced I don’t if I were with in clarity conclusion indicates lack of I plate would take the out know whether warnings’ language.4 do.3 I would or what Thus, the presents record is- also testified that he remem- Dr. Bornfleth regarding sue of material fact whether Dr. in hearing of cases which the screws bered expectations Bornfleth’s reasonable off, out or sheered but he did backed . plate use of the were met. He did not hearing any of cases in not remember expect plate that the could break or that plate which the cervical itself broke. In extrude, the screws would as indicated fact, during his consultation with Ms. “surprised” his statement that he was Adams, he did not mention that the Although such would occur. Dr. Bornfleth subjected could break if to stresses. At recognized that breakage occasional time, why did not know a cervical he theoretically possible, he had Moreover, plate might fracture. Dr. Born- expected not heard of and would not have that, at the im- fleth testified time of the the cervical to break in the manner plant, he did not understand either that and under the circumstances that occurred implant should removed or that addition, In testimony here. indicates Synthes Spine recommended that it be that he did not think removal of Ms. removed. (1) necessary Adams’ because: addition, while participating meet- the presentations of other doctors and ings of American (2) Associations of Neu- Synthes Spine, the practices within the rological Surgeons Congress profession medical in using product, Surgeons, Dr. Neurological Bornfleth at- a lack clarity warning. presentations tended courses and given by Thus, there are genuine of material issues representatives Spine other fact a jury to resolve regarding the product. doctors From reasonable of Dr. Bornfleth *7 presentations, these courses and Dr. Born- and whether those were met. fleth concluded'that there was “no reason Adequacy Warning B.
to take the out if because the fusion there, going is solid and the is it’s The District Court also erred in deter- problem.” cause no Both Dr. Bornfleth mining that the warning provided by Drapkin, and Dr. Allan Ms. Adams’ subse- Synthes Spine adequately warned of the quent physician, they testified that did not possibility of breakage. As discussed think that other removing doctors majority, appears the that the reason- plates routinely. the expectation able of the consumer test can- not be met if Bornfleth testified that he there is no did issue of seeing recall material reading regarding remember the fact whether warn- package insert that ing adequate. came with See Reece v. Good Sa- Spine’s plate products. 574, Even after read- maritan Hosp., WasLApp. 90 953 Nothing 3. adequacy in the record indicates that warning Ms. of the and Dr. Born- undergone testimony Adams was in an accident or had warning fleth's is fur- B, any physical type of trauma. ther discussed in the Section infra.
1121 117, con- for the individual (finding practical patient, P.2d 123 met fixation devices should be test could not be removed expectation sumer . by adequate postoperative manage- “adequately manufacturer had where the ment to avoid refracture. consumers of the risks associated warned However, if there using product”). with paragraph regarding This removal is not dispute regarding the warn- is a factual included in the subsection the insert Synthes Spine cannot be ing’s adequacy, “Warnings,” 'entitled rather it is in the by this affirmative defense. sheltered subsection entitled “Precautions.” This paragraph language, also uses such as “we adequately labeled if it recommend” and “devices should be re- necessary instructions and “carries moved,” “must,” rather than which is used fully warnings apprise in other paragraphs this section. For procedures for use and the proper example, the first in the “Pre- paragraph involved.” Terhune v. A.H. Rob- dangers states, “Surgical cautions” Im- subsection Co., ins 577 P.2d 978 Wash.2d plants must never be reused.” (1978). determining In nature, In addition to discretionary a matter its Spine’s warning ambiguity in the law, meaning insert’s rais- the District Court relied on both es a triable issue as to whéther accompanied insert that package Synthes Spine’s warnings adequate. testimony by Drs. Bornfleth Upon reading package insert would still use the Drapkin deposition, Dr. Bornfleth stated: patients despite on future the break- finding In warn- age They imply this case. that the here that once the need for over, adequate, the erred ing was District Court the fixation device is that the im- plant I ignored ambiguous language because should be removed. And don’t think —I don’t think I and the confusion that ündérstood that. except fact I never did take them out warning. arose from the that one case. only warnings regarding the neces- sity for removal was included in a package [*] * * * * THE insert entitled “FOR PERSONAL I points pertinent, think the other this, THE OPERATING ATTENTION OF I I get but as read sense this is extremity type SURGEON” “SUGGESTIONS CON- more for a lumbar or , weight CERNING ORTHOPAEDIC METALLIC there not much thing bear, INTERNAL FIXATION that the neck has to so there is DEVICES.”5 “Precautions,” following really applies .-mostly weight text bear- Under — ing. Although weighs the head appears: weigh- pounds, it’s not a tremendous healing. 3. Removal after fracture *8 surface, the bearing precau- so a lot of loosen, Implants Metallic can frac- I not perhaps applicable tions are think ture, mitigate, pain, corrode cause or to the plates. cervical stress shield bone even after a frac- healed, ture has particularly warning Even after a close read of the young, patients. active While the Dr. Bornfleth deposition, his was make final surgeon must deci- unsure the removal recommenda- whether removal, Implant applied plates, sion on we recom- tion even to cervical such as at in this case.6 possible mend that whenever and one issue inadequate capitalization styles possibly 6. Iri addition to the writ- 5. All and font are shown warning, appears Synthes Spine warning. ten were in by a by jury, a not and Dr. should be Dr. Bornfleth determined Finally, both appeared that no doctors judges. By failing Drapkin panel appellate testified of occur, should and issues, that removal majori- to know recognize these Thus, procedures. such doctors followed jury fact-finding role of the ty usurps the carry necessary “the not did product judgment for that of the and substitutes its fully apprise warnings to instructions jury. proper procedures the physician sum, record sets forth because the Terhune, involved.” dangers use and showing genu- that there are specific facts Because the P.2d at 978. (1) whether regarding ine issues for trial fully and failed nature ambiguous reasonable physician’s that removal was neces- apprise doctors met, Synthes Spine’s whether package insert for were Spine’s sary, Synthes not constitute an adequate, does I would reverse warnings its cervical law. warning as a matter of this case. and remand wrongdoing, me of majority accuses my substituting I am medi- asserting that judgment of for the medical judgment
cal charge demonstrates a This physician.7 legal system and what view of our myopic Every day all about.8 this lawsuit nation, judges throughout courts as finders of fact substi- juries layperson judgments judgments tute their malpractice litiga- in medical physicians However, legal system. That’s our tion. America, UNITED STATES malpractice not a medical this is Plaintiff-Counter-Defendant- required We are not physician. against Appellee, whether a to determine Rather, this is a right wrong. v. case, summary which is at the stage. questions before the CARPENTER; Gerber; John C. Grant product manufac- court are whether O.Q. Johnson, Defendants, Spine was defective and by Synthes tured warnings regarding the dan- whether the adequate. As
gers of County Elko, Defendant-Counter- above, disputed there are issues of shown Claimant-Appellee, questions, these which fact Moreover, majority ignores give any warnings during the fact oral their failed n case, meetings. presentations at As dis- prescribing physician various did in this not above, given the cussed Dr. Bornfleth was testify using independent judg- that he was his complica- impression that there would be no when he to remove Ms. ment chose leaving in if the fusion tions from Rather, plate. he relied on what he Adams' was solid. Synthes Spine and col- had heard from *9 leagues, any of not on what he learned from majority’s Underlying this statement is doctor-patient his own research or consulta- physicians chose not to remove assertion that tions Ms. Adams’ medical needs judgment. their medical based on requirements. However, nothing in the record establishes this fact.