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ARKANSAS-PLATTE & GULF v. VAN WATERS & ROGERS

No. 91-1085.

959 F.2d 158 (1992)

ARKANSAS-PLATTE & GULF PARTNERSHIP, a Colorado general partnership, Plaintiff-Appellee, v. VAN WATERS & ROGERS, INC., a Washington corporation; the Dow Chemical Company, a Delaware corporation, Defendants-Appellants. National Agricultural Chemicals Association; Western Agricultural Chemicals Association; National Pest Control Association; National Agricultural Aviation Association; Chemical Specialties; American Wood Preservers Institute; Chemical Manufacturers Association; Product Liability Advisory Council, Inc.; Trial Lawyers for Public Justice, Amici Curiae.

United States Court of Appeals, Tenth Circuit.

March 6, 1992.

Attorney(s) appearing for the Case

Richard R. Young (Brent E. Rychener and Walter H. Sargent, with him on the briefs) of Holme Roberts & Owen, Colorado Springs, Colo., for plaintiff-appellee.

David A. Bailey (Dean R. Massey and Anne D. Weber, with him on the briefs) of Parcel, Mauro, Hultin & Spaanstra, P.C., Denver, Colo., for defendant-appellant, Van Waters & Rogers, Inc.

C. Michael Montgomery (Peter S. Dusbabek, Montgomery, Green, Jarvis, Kolodny & Markusson, Denver, Colo., and Edward B. Fitzpatrick, III, The Dow Chemical Co., Midland, Michigan, with him on the briefs), of Montgomery, Green, Jarvis, Kolodny & Markusson, Denver, Colo., for defendant-appellant, The Dow Chemical Co.

Lawrence S. Ebner, McKenna & Cuneo, Washington, D.C., Charles S. Siegel, Baron & Budd, P.C., Dallas, Tex., and Arthur H. Bryant and Priscilla Budeiri, Trial Lawyers for Public Justice, Washington, D.C., on the briefs, for amici curiae.

Before LOGAN and MOORE, Circuit Judges, and ALLEY, District Judge.

JOHN P. MOORE, Circuit Judge.

In 1985 plaintiff Arkansas-Platte & Gulf (AP & G) succeeded to ownership of property in Colorado which previously had been occupied by a wooden fence-post treatment facility. That facility used a pentachlorophenol product, "Dowicide 7," from approximately 1960 to 1972. In 1987, an AP & G employee was diagnosed with pentachlorophenol poisoning. AP & G filed suit in 1989 against Van Waters & Rogers and The Dow Chemical...

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