Bayless v. United States

• Decision Date: 28 April 2014
• Docket Number: No. 12–4120.,12–4120.
• Citation: 749 F.3d 1235
• Parties: Carolyn BAYLESS, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee, and United States Army; Karol Ripley, Lt. Col. Commander Tooele Army Depot; Deseret Chemical Depot, Commander, Attn: AMSSBODC; Fort Myer Military Community, Office of the Claims Judge Advocate; United States Army Legal Services Agency; Derek Shoup, Office of the Staff Judge Advocate, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

749 F.3d 1235

Carolyn BAYLESS, Plaintiff–Appellant,

v. UNITED STATES of America, Defendant–Appellee,andUnited States Army; Karol Ripley, Lt. Col. Commander Tooele Army Depot; Deseret Chemical Depot, Commander, Attn: AMSSBODC; Fort Myer Military Community, Office of the Claims Judge Advocate; United States Army Legal Services Agency; Derek Shoup, Office of the Staff Judge Advocate, Defendants.

No. 12–4120.

United States Court of Appeals, Tenth Circuit.

April 28, 2014.

Kimberly M. Hult of Hutchinson Black and Cook, LLC, Boulder, CO (Keith M. Edwards of Hutchinson Black and Cook, LLC, Boulder, CO; and Steve Russell, Grand County Law & Justice Center, P.C., Moab, UT, with her on the briefs), for Appellant.

Jeffrey E. Nelson, Assistant United States Attorney (David B. Barlow, United States Attorney, with him on the brief), Salt Lake City, UT, for Appellee.

Before HARTZ and TYMKOVICH, Circuit Judges, and JACKSON ^*, District Judge.

JACKSON, District Judge.

Sixteen years ago Carolyn Bayless began to suffer from a mysterious debilitating illness. As her condition deteriorated over the years that followed, she doggedly sought to learn what caused (and how to treat) her illness. Finally, in 2008, convinced that she was the victim of exposure to nerve gas emitted by an Army testing facility, she filed a claim under the Federal Tort Claims Act. When this lawsuit followed in 2009, the Army responded that she knew of her claim by at least 2005 and had waited too long to assert it. The district court agreed and granted summary judgment dismissing the case. We conclude that under the unusual circumstances presented here, the period of limitation did not accrue until February 2007. Therefore, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse.

I. BACKGROUND

A. Factual Background

In 1997, after graduating from college with a conservation biology degree, Ms. Bayless began a seasonal position as a range technician with the Utah Division of Wildlife Resources. As a result, she traveled to remote locations around the state to conduct various wildlife studies, including one location less than ten miles away from the Dugway Proving Grounds (“Dugway”) and another location within two miles of Tooele Chemical Agent Disposal Facility (“Tooele”). Unbeknownst to Ms. Bayless during the time in which she worked near them, both Dugway and Tooele were United States Army sites then conducting chemical and biological weapons testing.

In October 1997, about a month after completing her seasonal position with the Utah Division of Wildlife Resources, Ms. Bayless began to experience episodic lip numbness and blurred vision, which she attributed at that time to sitting in front of the computer for numerous hours a day. After the symptoms failed to dissipate, however, Ms. Bayless sought medical evaluation. In February 1998 she saw an ear, nose, and throat specialist who performed an MRI, which returned normal results. Shortly afterwards and notwithstanding those normal results, Ms. Bayless experienced numbness through her entire left side following cleaning her house with chemicals. Ms. Bayless thus began a long and arduous search for an answer to her worsening medical condition.

In May 1998, Ms. Bayless sought evaluation from a neurologist, Dr. Christopher Reynolds, whose tests likewise revealed normal results. The numbness meanwhile spread to Ms. Bayless' right foot and right arm. After severe vertigo sent Ms. Bayless to the emergency room in July 1998, she discontinued her birth control pills upon her doctor's advisement that she suffered a transient ischemic attack.¹ Later in the same month, Ms. Bayless sought out a second neurologist, Dr. Dennis Thoen, whose tests again showed normal results.

In January 1999, however, Dr. Thoen began to suspect that Ms. Bayless' symptoms were caused by multiple sclerosis (“MS”). After a series of referrals, in February 1999 a neurologist and MS specialist, Dr. John Rose, formally diagnosed Ms. Bayless with MS and prescribed medication accordingly. Ms. Bayless' condition, however, only continued to worsen, and she discontinued the MS medication in August 1999.

Ms. Bayless' condition thereafter seemed to improve, and she became pregnant in January 2000. Unfortunately, her improvement proved to be temporary. In March 2000 Ms. Bayless' health took a dramatic turn for the worse when she suffered a miscarriage and underwent an emergency dilation and curettage. Two days later she began to experience severe difficulty walking, and she lost control of her fine motor skills. She became unable to care for, even to feed, herself. Ms. Bayless described it as going from functional to nonfunctional.

Still under the theory that this sudden deterioration was related to MS, Dr. Rose prescribed oral steroids on March 24, 2000. The steroids only worsened Ms. Bayless' condition. Despite what was happening, however, another MRI performed on July 3, 2000 yet again showed normal readings.

In July and August 2000, Ms. Bayless traveled to Chicago to another MS specialist, Gastone Celesia, M.D., who determined that she had been improperly diagnosed with MS. Instead, Dr. Celesia and another specialist, Dr. Tony Fletcher, both suspected Ms. Bayless' symptoms were psychosomatic.

Veering Ms. Bayless in another direction in October 2000, Utah physician Judith Moore, D.O., diagnosed Ms. Bayless with a chronic Epstein–Barr viral infection. Dr. Moore prescribed vitamins and supplements to treat the infection. But a month later Dr. Dean Wingerchuk, a neurologist at the Mayo Clinic in Arizona, seconded Drs. Celesia's and Fletcher's conclusion that Ms. Bayless did not suffer from MS and advised her that the psychosomatic symptoms would disappear without medical treatment. Hoping that her symptoms would dissipate as these doctors had counseled her, Ms. Bayless stopped seeking medical treatment. In August 2001 she gave birth to a daughter in Colorado. Although Ms. Bayless continued to suffer from the same neurological problems, she did not seek treatment for another year after her daughter's birth.

In October 2002, Ms. Bayless, now having discarded the MS theory and suspecting that her symptoms might be related to neck issues, began treatment with a series of chiropractors. On her intake forms with one of the chiropractors, Dr. Beau Maudlin, Ms. Bayless mentioned her work in southern Utah and raised concerns over nuclear testing and mining tailings in the area. Dr. Maudlin referred Ms. Bayless to another chiropractor, Susan Rector, at the end of March 2003. Dr. Rector raised her suspicion that Ms. Bayless' symptoms might be caused by heavy metal or mercury poisoning. Ms. Bayless was then referred to a dentist to remove her mercury dental fillings, but these detoxification treatments were again unfruitful in resolving her symptoms.

Subsequently, still in 2003, Ms. Bayless was referred by her dentist to a clinical nutritionist, Sam Queen. On the “Possible Exposure” portion of her patient intake form, Ms. Bayless wrote, “I think I may have been exposed to uranium in the soil in southern Utah when I worked for the Division of Wildlife for 6 months collecting plant and soil samples.” App. to Appellant Br. 64. Mr. Queen performed blood work analysis and informed her that he suspected her symptoms were caused by “organophosphate pesticide poisoning.” Id. Ms. Bayless assumed this meant she had been exposed to lawn pesticides and, while she did not pursue an additional investigation into the diagnosis, she began Mr. Queen's detoxification regimen. However, Ms. Bayless stopped that regimen in December 2004 on the recommendation of her physician at the time, Dr. Dennis Remington, who noted that she suffered from an apparent chronic renal failure.

In early 2005, Ms. Bayless read a magazine article by a woman named Pauly who had experienced similar symptoms. When Ms. Bayless spoke with Pauly on the telephone, she learned that Pauly developed her neurological symptoms after visiting an Army base. Pauly suspected her own symptoms were caused by biological weapons testing at the base, and she referred Ms. Bayless to Dr. Garth Nicolson, a research professor at the Institute of Molecular Medicine in San Diego who studies biological weapons.

Dr. Nicolson suggested to Ms. Bayless various methods of detecting exposure to biological weapons, including a polymerase chain reaction (“PCR”) test. Ms. Bayless did not obtain a PCR test at that time due to “debates on whether the PCR is accurate or not.” Id. at 73. Notably, Ms. Bayless did not discuss nerve agents with Dr. Nicolson, only biological agents and the related conditions caused by mycoplasma fermentans and mycoplasma incognitus.

In early 2005, after speaking again with Pauly, Ms. Bayless began to research biological and chemical weapons testing. Upon discovering the existence of the Army sites at Dugway and Tooele, Ms. Bayless again consulted Mr. Queen regarding any possible exposure to biological and chemical weapons. On February 1, 2005, Mr. Queen wrote to Ms. Bayless that normally her lack of improvement from pesticide detoxification “may be because of exposure to various toxins.” Id. at 66, 107. Mr. Queen suggested that a “secondary toxin ... due to nerve agents, etc.,” might be causing the lack of improvement in her case. Id. Mr. Queen wrote that “the Institute of Orthomolecular Medicine ... would probably have a way to test for this,” and that “the information may be very useful.” Id.

Ms. Bayless did not follow up with this Institute. Instead, on February 9, 2005 Ms. Bayless raised the issue with Dr. Remington who recorded that he discussed “new ideas” with Ms. Bayless about her work history adjacent to Dugway and Tooele. Id. at 68, 97. Dr. Remington's notes do not record—and Ms. Bayless does not remember—whether he recommended any treatment or follow-up after this discussion.

Ms. Bayless also began seeing Dr. Robert Moody, another physician in Utah, in early 2005. Among other...