Bayless v. United States

  FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 28, 2014

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
__________________________________

CAROLYN BAYLESS,

Plaintiff - Appellant,
v. No. 12-4120
UNITED STATES OF AMERICA,

Defendant – Appellee,
and

UNITED STATES ARMY; KAROL
RIPLEY, Lt. Col. Commander Tooele
Army Depot; DESERET CHEMICAL
DEPOT, Commander, Attn: AMSSB-
ODC; 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.
__________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:09-cv-00495-DAK)
__________________________________

Kimberly M. Hult of Hutchinson Black and Cook, LLC, Boulder, Colorado (Keith M.
Edwards of Hutchinson Black and Cook, LLC, Boulder, Colorado; and Steve Russell,
Grand County Law & Justice Center, P.C., Moab, Utah, 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, Utah, 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

The Honorable R. Brooke Jackson, United States District Judge for the District of
Colorado, sitting by designation.
2

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

1
Ischemia is a “deficient supply of blood to a body part (as the heart or brain) that is due
to obstruction of the inflow of arterial blood.” MERRIAM-WEBSTER ONLINE
DICTIONARY, available at https://www.merriam-webster.com/medical/ischemia.
3

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

4

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.

5

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

6

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 things Ms. Bayless provided contact information for Major

Craig Lynch at Dugway, who was a contact provided by Dr. Nicolson from the Institute

of Molecular Medicine, to Dr. Moody. Id. at 111. In her note to Dr. Moody, Ms. Bayless

mentioned that Dr. Nicolson had purportedly helped Major Lynch with his Gulf War

7

Illness. However, neither Ms. Bayless nor Dr. Moody followed up by contacting Major

Lynch.

In an undated letter from early 2005 to Mr. Queen, Ms. Bayless commented on her

mother’s medical history while she was pregnant with Ms. Bayless. Ms. Bayless

remembered that her mother took two anticonvulsant drugs during the pregnancy, and she

also remembered some neurological problems in her childhood. She wrote, “My hunch is

that these two drugs caused a weakness in my central nervous system/brain so that when I

was exposed to a neurotoxin near Dugway it explains why it affected me so badly.” Id. at

109.

Ms. Bayless also wrote that she had found a doctor2 who believes that she “was

exposed to a neurotoxin out at Dugway and is willing to pursue it and call out there.”

This doctor, she claimed, also believed that the amount of acetylcholine in Ms. Bayless’

muscles was deficient. Ms. Bayless noted that she had read “that organophosphate

toxicity (like what they believe may be affecting some Gulf War vets) damages the

acetylcholinesterase enzyme so there is a buildup of acetylcholine in the nerve endings

which causes neuromuscular problems.” Id. at 68–69. Mr. Queen wrote in his reply—

also undated—that this is “possible,” and that treatment with huperzine would eliminate

any acetylcholinesterase inhibitors.3

2
Although the letter is unclear, Ms. Bayless believes that this doctor she mentioned was
referring to Dr. Moody, who later performed an acetylcholine test in May 2005.
3
As discussed below, Ms. Bayless was treated unsuccessfully with huperzine later in the
summer or fall of 2005.

8

On March 15, 2005, Dr. Moody recorded in Ms. Bayless’ history that “[a]ll [signs

and symptoms] preceded by working at forestry service near Dugway [with] exposure to

Seran [sic], Brucelloses [sic], multiple infectious disease.” Id. at 74, 114. On April 12,

2005, Dr. Moody also recorded that Ms. Bayless “[m]ay have been exposed to nerve gas

being destroyed [at] Toela [sic] Army.” Id. at 73, 113.

Meanwhile, also around April 2005, Ms. Bayless met with Dr. Rebecca Levine, a

family practitioner, on yet another theory that her symptoms might be related to seizure

activity. After hospital testing revealing negative results, Ms. Bayless crossed off seizure

activity as a potential cause.

At some point in early 2005 during her own research, Ms. Bayless had learned of a

man named Gary Harris who had worked at Dugway in 1996 and who had suspicions that

he had been exposed to nerve agents. Mr. Harris shared similar symptoms to those

experienced by Ms. Bayless, including “brain fog, numbness, muscle weakness, and

chronic fatigue.” Id. at 71, 116. Mr. Harris informed Ms. Bayless that “the government

was shooting munitions filled with VX and GB nerve agents into the southwest corner of

Dugway and lost a lot of them outside the borders.” Id. at 116. He also informed Ms.

Bayless that she could have been exposed if she had been downwind from the open burns

and detonations that the government performed during that time.

On May 3, 2005, Ms. Bayless saw Dr. Moody again, who recorded in his notes:

“Exposure to possible Seran/VX [sic]. [1996–1997] shot munitions into SW corner.” Id.

at 113. On the same day, Ms. Bayless asked Dr. Moody to test her acetylcholine levels.

9

On May 4, 2005, Ms. Bayless, citing her own research and the information she

learned from Mr. Harris about Dugway, wrote in an email to Mr. Queen: “I now am

pretty sure that my symptoms were caused by low-level exposure to nerve agents,

probably VX and GB (sarin nerve gas).” Id. at 116. Ms. Bayless also wrote that she

found out that employees in the Tooele facility, which operated “the largest nerve gas

incinerator in the world,” have also suffered neurological problems. Id.

Nevertheless, around the same time in early May 2005,4 Ms. Bayless received

negative results from Dr. Moody’s acetylcholine test. Later between July and October of

2005, Ms. Bayless was also treated by Mr. Queen with huperzine, a Spanish club moss

that he believed should have neutralized effects of sarin nerve gas by targeting inhibitors

of acetylcholinesterase enzymes and thereby restored Ms. Bayless’ acetylcholine levels.

After three days of treatment, however, Ms. Bayless’ condition not only failed to improve

but it actually worsened. Mr. Queen therefore discontinued any theory that an

organophosphate toxicity would be linked to sarin, and Ms. Bayless ended her search for

a chemical weapons link.

In early 2006, Ms. Bayless began seeing another nutritionist in Utah, Pat

Montague. Ms. Bayless, having abandoned the possibility that her condition was related

to Dugway or Tooele, worked with Ms. Montague’s suspicion that a candida infection in

4
It is unclear from the record when Ms. Bayless received the results of her acetylcholine
blood test performed on May 3—whether the results were returned alongside the test
being performed or following her email on May 4 to Mr. Queen. Appellant states in
briefing that the results came after the email had been sent, see Appellant Br. 13, but the
Court cannot discern anything in the record indicating the date Ms. Bayless knew the
results.
10

Ms. Bayless’ intestinal tract was to blame. Ms. Bayless adhered to a strict diet to treat

this until October 2006—but again to no avail.

Returning again to biological weapons, Ms. Bayless visited another Utah family

medicine specialist, Dr. Todd Mangum, in October or November 2006. Dr. Mangum

administered the PCR test for biological weapons, the test previously recommended by

Nicolson in 2005. The test results for mycoplasma fermentans and mycoplasma

incognitus returned negative in December 2006.

Finally, Ms. Bayless sought out Dr. William Rea, a specialist in neurotoxicity at

the Environmental Health Center in Dallas, Texas. During her first visit with Dr. Rea on

February 5, 2007, Ms. Bayless told him about her work in Utah near a nerve gas

incinerator. Dr. Rea recorded in his notes that Ms. Bayless “strongly suspects that she

was exposed to sarin nerve gas at the Dugway Proving Ground.” Id. at 118. Dr. Rea then

administered, among many other scans and tests, a cholinesterase test. For the first time,

Ms. Bayless received positive test results showing low cholinesterase levels—an opposite

result from the acetylcholine test performed by Dr. Moody in May 2005—now indicating

that she suffered from what Dr. Rea called an “organophosphate pesticide toxicity.” Id.

at 76; see also id. at 120.

Dr. Rea diagnosed Ms. Bayless in a June 21, 2007 report with toxic

encephalopathy, toxic effect of molds, toxic effect of pesticides, toxic effect of metals,

chronic fatigue, fibromyalgia, autonomic nervous system dysfunction, vasculitis, and

immune deregulations. Id. at 124. He concluded that Ms. Bayless suffered from

moderate neurotoxicity while noting that her “visual and respiratory symptoms . . . are

11

delayed sequelae in Sarin exposure.” Id. at 126. Dr. Rea wrote that he “firmly believe[d]

that in all medical probability this patient’s incapacitation is a result of her exposure to

pesticides, heavy metals, molds, and mycotoxins in the workplace.” Id. at 127.

B. Procedural History

Ms. Bayless filed an administrative claim on January 31, 2008, alleging that the

activities of United States Army on its Dugway facility caused her to sustain permanent

neurological and other injuries. Id. at 129–34. On May 29, 2009, Ms. Bayless filed a

complaint under the FTCA in the United States District Court for the District of Utah.

On December 2, 2011, the government moved for summary judgment to dismiss

Ms. Bayless’ complaint for lack of subject-matter jurisdiction. The government argued

that Ms. Bayless failed to present her administrative claim within two years of the accrual

of that claim pursuant to 28 U.S.C. § 2401(b). After hearing argument on April 19, 2012,

the district court granted the motion on May 17, 2012. The district court concluded that

Ms. Bayless acquired enough knowledge by May 2005 for her claim to begin to accrue

and also that her claim was not protected by the doctrine of equitable tolling. Ms.

Bayless appealed.

II. DISCUSSION

“Absent a waiver, sovereign immunity shields the Federal Government and its

agencies from suit.” Dahl v. United States, 319 F.3d 1226, 1228 (10th Cir. 2003)

(quoting Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994)). The FTCA waives

the United States’ sovereign immunity from tort claims and makes it liable “in the same

12

manner and to the same extent as a private individual under like circumstances.” 28

U.S.C. § 2674. A tort claim against the government, however, is “forever barred unless it

is presented to the appropriate Federal agency within two years after such claim accrues.”

28 U.S.C. § 2401(b). Thus as a threshold matter, timeliness “is one of the conditions of

the government’s waiver of sovereign immunity under the FTCA, and [a federal] court

lacks subject matter jurisdiction to proceed under the FTCA if a plaintiff fails to satisfy

the FTCA’s timing requirements set forth in § 2401(b).” Harvey v. United States, 685

F.3d 939, 947 (10th Cir. 2012) (quoting Franklin Sav. Corp. v. United States, 385 F.3d

1279, 1287 (10th Cir. 2004)).

Whether a plaintiff has “file[d] an FTCA claim within the two-year statute of

limitations period is a matter we review de novo.” Plaza Speedway Inc. v. United States,

311 F.3d 1262, 1266 (10th Cir. 2002). In construing when a claim accrues within the

meaning of § 2401(b), we seek to interpret the section consistent with congressional

intent. Cannon v. United States, 338 F.3d 1183, 1190 (10th Cir. 2003) (citing United

States v. Kubrick, 444 U.S. 111, 117–18 (1979)).

“Both § 2401(b) and its legislative history are silent as to the meaning of

‘accrues.’” Plaza Speedway, 311 F.3d at 1267 (quoting Arvayo v. United States, 766

F.2d 1416, 1419 (10th Cir. 1985)). Section 2401(b) serves “to require the reasonably

diligent presentation of tort claims against the government,” and like other statutes of

limitations, it reflects the “legislative judgment that it is unjust to fail to put the adversary

on notice to defend within a specified period of time, and that the right to be free of stale

13

claims in time comes to prevail over the right to prosecute them.” Arvayo, 766 F.2d at

1418–19 (quoting Kubrick, 444 U.S. at 123) (internal quotation marks omitted).

The general accrual rule for FTCA claims is the “injury-occurrence rule,” where

the tort claim accrues on the date of injury. Plaza Speedway, 311 F.3d at 1167. In

exceptional cases, however, the “discovery rule” applies to “protect plaintiffs who are

blamelessly unaware of their claim because the injury has not yet manifested itself or

because the facts establishing a causal link between the injury and the medical

malpractice are in the control of the tortfeasor or otherwise not evident.” Plaza

Speedway, 311 F.3d at 1167 (quoting Diaz v. United States, 165 F.3d 1337, 1339 (11th

Cir. 1999)) (internal quotation marks omitted). In these cases, the date of accrual is when

that reasonably diligent plaintiff knows or should have known of both the existence of

and cause of the injury. Id.; Cannon, 338 F.3d at 1190.

We hardly question that this is an exceptional case where the discovery rule

applies. Ms. Bayless’ injury occurred in 1997 when she worked as a range technician

near the Dugway and Tooele Army bases in Utah, whose apparently undisclosed

weapons testing exposed her to sarin or other nerve agents. At the time of that

occurrence, Ms. Bayless had no reason to suspect the nature of the injury about to befall

her, let alone its cause. As such, “contrary to Congressional intent, strict application of

the occurrence rule here would deny [Ms. Bayless her] right to compensation under the

FTCA.” Plaza Speedway, 311 F.3d at 1268.

Starting with the episodic numbness and blurred vision in October 1997, and as

each symptom of her injury revealed itself, Ms. Bayless would develop knowledge of an

14

ever-worsening injury. But, at least initially, Ms. Bayless had no knowledge of Dugway

or Tooele to connect her time spent near them to her injury. From the time she first saw a

doctor in February 1998 after her initial symptoms did not dissipate, however, Ms.

Bayless persevered in her search for an answer despite dead end after dead end.

The question before us then is at what point during this long search did Ms.

Bayless know or should she have known of the causal link between her condition and the

Army’s activities. Ms. Bayless contends on appeal that the two-year limitations period

began to run no earlier than February 2007 when she received the positive cholinesterase

test results from Dr. Rea. That theory, says the government, ignores the teaching of

Plaza Speedway.

In Plaza Speedway we applied the discovery rule to an FTCA toxic tort case where

the Army’s activities at an airfield adjacent to the claimants’ racetrack contaminated the

property’s groundwater and soil. Speedway’s owners purchased the property in 1989

with knowledge of the Army’s chemical operations but, despite this knowledge, did not

test its wells or seek any environmental assessment. In April 1993, the Kansas

Department of Health and Environment (“KDHE”) tested the well water following an

application from the owners for public use of the property’s water. Four months later an

environmental geologist from the remedial section of KDHE telephoned the property

owners and discussed potential chemical contamination on the Speedway premises. Id.

That geologist followed up with an October 18, 1993 letter indicating that hazardous

substances were present in the groundwater and soil. The owners filed their

administrative claim on October 13, 1995.

15

We held there that the geologist’s phone call in August 1993 started the clock for

the statute of limitations. 311 F.3d at 1271. In doing so we emphasized three antecedent

facts that, when combined with that telephone call, should have given the owners “reason

to suspect the source might have been the neighboring property” and then to initiate

inquiry into “any possible harm”: (1) the owners knew that contamination testing by the

KDHE occurred in April 1993; (2) the owners knew at the time of purchase of the

property that the Army had been testing various chemicals on the adjacent airfield; and

(3) the property had no other neighbors than the Army airfield. Id. at 1270–71.

The facts in Ms. Bayless’ case are rather different. Unlike the owners in Plaza

Speedway whose options for suspicion could have pointed only to its sole neighbor, Ms.

Bayless had more than a handful of potential “suspects” wreaking havoc on her body.

And unlike the owners in Plaza Speedway, Ms. Bayless did not sit back idly, with

knowledge of the government’s activities and without taking any action to inquire into

the source of her injury.

The government stresses that Ms. Bayless failed to pursue certain leads, including

Dr. Nicolson’s suggestion to take a PCR test, Dr. Nicolson’s reference to Gulf War

Illness and Major Lynch, and Mr. Queen’s mention of the Institute of Orthomolecular

Medicine.5 Ms. Bayless, however, made a conscious choice at the time against taking the

5
Ms. Bayless suggests in her briefing—for the first time—that this Institute of
Orthomolecular Medicine does not even exist, while noting that Ms. Bayless had by that
time sought out Dr. Nicolson from the Institute of Molecular Medicine. The government
suggests on the other hand that this lead, had Ms. Bayless pursued it, might have led her
to Dr. Rea’s sarin toxicity diagnosis earlier because his title is Director of Orthomolecular
Health-Medicine. Compare Appellant Br. 12 n.3 with Appellee Br. 9 n.3. Unfortunately
16

PCR test because its accuracy was debated—indeed, a PCR test administered in 2006 by

Dr. Mangum returned no fruitful results.

As for the other references, the test for accrual does not require that a plaintiff

pursue every possible clue to its end in order to be deemed a reasonably diligent plaintiff.

See Arvayo, 766 F.2d at 1422 (question of reasonable diligence is an objective one). In

fact, within a decade Ms. Bayless had seen as many medical professionals as others might

see in a lifetime, and she traveled throughout the country to do so. On advice from those

physicians, neurologists, chiropractors, nutritionists, and other professionals, Ms. Bayless

passed through theories on ischemic attacks, multiple sclerosis, an Epstein-Barr infection,

a neck-related condition, heavy metal poisoning, uranium exposure, a seizure-related

condition, a systemic yeast infection, and was even told by more than one doctor that her

symptoms were entirely psychosomatic. To hold that Ms. Bayless must have followed

every word of advice from every professional to be deemed reasonably diligent would

change her legal duty into an absurd herculean task.

Despite her diligence, Ms. Bayless remained unaware of even the existence of the

Army sites at Dugway and Tooele until early 2005. According to the government, upon

this discovery in 2005, Ms. Bayless became not only armed with the critical facts

regarding the activity that occurred Dugway and Tooele, but she had already received

direction from her doctors that should have connected the cause and injury. The

for Ms. Bayless, her failure to raise the issue below means that the Court now has nothing
in the record that speaks to the existence or nonexistence of the Institute of
Orthomolecular Medicine—nor for that matter anything that speaks to a connection
between such an Institute and Dr. Nicolson or Dr. Rea.
17

government relies on the following pieces of evidence that Ms. Bayless had by that time:

first, Ms. Bayless’ research on Dugway and Tooele; second, Ms. Bayless’ conversations

with “Pauly” and Mr. Harris about suspicions of their own exposure to biological or

chemical weapons; third, Mr. Queen’s prior “organophosphate pesticide toxicity”

diagnosis in 20036 as well as his intimations at a “secondary toxin . . . due to nerve

agents, etc.” in his February 1, 2005 email; and finally, most significantly, Ms. Bayless’

own statement in her May 4 letter to Mr. Queen that she was “pretty sure” sarin

poisoning was to blame for her condition.

The crux of this case, however, lies in whether a legal distinction exists between

one’s own suspicion that something is a cause and the requisite objective knowledge that

begins the accrual clock. An example from the Seventh Circuit makes the point that

subjective suspicion is not necessarily enough.

In Stoleson v. United States, 629 F.2d 1265(7th Cir. 1980), the plaintiff, an

employee in an Army munitions plant, suffered a heart attack in 1968 and suspected that

it was related to her workplace exposure to nitroglycerin. Her condition was diagnosed,

however, as a myocardial infarction caused by vascular spasm triggered by temporary

withdrawal from nitroglycerin; and her treating physician told her that exposure to

6
According to the government, this is the same diagnosis that Dr. Rea later gave in 2007.
Nevertheless, not only did Ms. Bayless have no reason to tie that to activities at Dugway
or Tooele in 2003 when she had no knowledge of their existence, but she also testified, to
the contrary, that she understood Mr. Queen’s diagnosis in 2003 to mean that she had
been exposed to some sort of lawn pesticide. In any event, Ms. Bayless had followed Mr.
Queen’s detoxification regimen for this exposure to no avail and only stopped when she
discovered from Dr. Remington that she had begun to suffer from chronic renal failure.

18

nitroglycerin was not the cause. She nevertheless requested (unsuccessfully) a transfer to

a work area free from nitroglycerin, and she continued to experience periodic angina

attacks until her employment was terminated in 1971.

Meanwhile, her suspicion of a nitroglycerin connection continued. In the spring of

1969 she read an article suggesting that sudden withdrawal from nitroglycerin can cause

angina chest pains. Later that year an occupation safety inspector told her that he

believed her heart problems were caused by exposure to nitroglycerin, though he was

unaware of any medically recognized causal relation. But her personal physicians

confirmed the previous assessment, and the facility continued to assure her that her

suspicions were groundless.

In April 1971, a cardiologist examined her and concluded that her cardiovascular

problems were related to nitroglycerin exposure. Later he went further and, based on the

plaintiff’s case and other case histories, published an article documenting for the first

time the relationship between angina and chronic exposure to nitroglycerin.

Notwithstanding the cardiologist’s opinion, however, the facility’s doctor was

unconvinced, and the plaintiff ultimately was discharged as unable to work.

The plaintiff filed her administrative claim on August 16, 1972, and after striking

out there, filed suit under the FTCA. In granting the government’s motion to dismiss the

district court found, among other things, that if the discovery rule applied, her claim

accrued in November 1969—more than two years before she filed her administrative

claim—when she read the article and spoke to the safety inspector.

19

The Seventh Circuit reversed. “A layman’s subjective belief, regardless of its

sincerity or ultimate vindication, is patently inadequate to go to the trier of fact.”

Stoleson, 629 F.2d at 1270. Because medical science did not at that time recognize the

causal connection, “[t]o fix the time of accrual at this time would provide [plaintiff] with

nothing more than a delusive remedy.” Id. Only in 1971, when the cardiologist

documented the relationship between occupational exposure to nitroglycerin and angina,

informed the plaintiff of his findings, and also informed her of their relevance to her

medical problems did her suspicion ripen into knowledge sufficient to trigger the running

of the two-year limitations period. Id. at 1270–71; see also Rosales v. United States, 824

F.2d 799, 805 (9th Cir. 1987) (“Ordinarily, a plaintiff cannot be expected to discover the

general medical cause of his injury even before the doctors themselves are able to do

so.”); Nicolazzo v. United States, 786 F.2d 454, 456 (1st Cir. 1986) (“It was only when

[the plaintiff] received a correct diagnosis . . . that the factual predicate of his injury . . .

became known to him.”); Osborn v. United States, 918 F.2d 724, 733 (8th Cir. 1990)

(rejecting the government’s argument that the plaintiff’s mother should have known the

cause of plaintiff’s seizure “when the doctors, including specialists . . . had not yet

reached a conclusion”); Harrison v. United States, 708 F.2d 1023, 1028 (5th Cir. 1983)

(statute tolled because “[i]t would be unreasonable to hold [a plaintiff] to a higher degree

of medical competence and understanding than the many medical experts she

consulted”).

Stoleson is distinguishable. There is no indication in the facts here that medical

science did not recognize a connection between exposure to nerve agents and symptoms

20

such as those of Ms. Bayless before she saw Dr. Rea in 2007. The point, however, is that

what Ms. Bayless had before that time was a lay person’s suspicion. While in some

circumstances that might be sufficient to trigger the statute, it cannot do so here when the

context is considered.

In early 2005, Ms. Bayless did, of course, know of the existence of the Army

bases. She suspected, at times, that their activities caused her injuries. But when she

followed up on her suspicions with various professionals she received, if anything,

objective medical results to the contrary. And it was not just one doctor who turned Ms.

Bayless away. She received three empirical results from three different doctors, all

evincing what appeared to be the objective truth that Dugway and Tooele were not to

blame. First there was a negative acetylcholine test in early May 2005 by Dr. Moody,

notably administered around the same time that she wrote she was “pretty sure” that sarin

gas exposure was the cause of her condition. Next, Ms. Bayless was treated with

huperzine between July and October 2005, but to no avail despite Mr. Queen’s assurance

that it would neutralize the effects of sarin nerve gas. Last there was the negative PCR

test for biological weapons exposure conducted by Dr. Mangum in December 2006.

The objective indicia seemed to point to a conclusive “no” for chemical and

biological weapons exposure, and Ms. Bayless wholly dropped the idea of biological or

chemical agent exposure.7 Instead she pursued treatment with Dr. Montague throughout

7
In Kubrick the Court held that the two year statute of limitations was triggered by the
plaintiff’s knowledge (based on medical opinion) of his injury (hearing loss) and its cause
(neomycin administered in a prior surgery), not when he later was informed by another
doctor that the administration of the drug was malpractice. 444 U.S. at 118–22. Armed
21

2006 on a theory that she suffered from a candida infection. Once again, the new theory

failed, and her evidence is that it was not until her consultation with Dr. Rea and the

ensuing cholinesterase test8 in February 2007 that she knew that her suspicions were

valid.

The government posits that if we were to conclude that Ms. Bayless’ claim did not

accrue until she found Dr. Rea, it could lead the statute of limitations in many cases to

“be deferred indefinitely while the prospective claimant searched for some physician

willing to connect her condition with government activity.” Thus, “the weaker the

plaintiff’s claim, the longer the accrual of the claim would likely be deferred.” Appellee

Br. 34. But merely because a cause is more difficult to determine medically does not

make that claim legally weaker. The purpose of the discovery rule inquiry is to

recompense the reasonable diligence of an enduring plaintiff despite a scientifically or

with knowledge of the injury and its cause, a diligent plaintiff could protect himself by
seeking medical and legal advice, and if appropriate, pursuing a claim. Id. at 123–24.
The Court found that Mr. Kubrick was not diligent in pursuing his legal rights after he
knew the cause of his hearing loss. But contrary to the Kubrick facts, Ms. Bayless did not
unreasonably delay seeking medical or legal advice. On the contrary, she sought
professional opinions time and again. Also unlike in Kubrick, she did not know the cause
of her injury by May 2005. Whereas Mr. Kubrick had been told by a physician that the
cause of his condition was the administration of neomycin, Ms. Bayless had only a lay
suspicion, and her suspicion was in fact contradicted by contemporaneous tests and
professional advice. As the Court recognized in Kubrick, there is a difference between “a
plaintiff’s ignorance of his legal rights and his ignorance of the fact of his injury or its
cause.” Id. at 122.
8
The District Court opinion stated that “Dr. Rea administered a test for acetylcholine,
which had been negative when Dr. Moody tested it in 2005.” App. 193–94. This,
however, is incorrect. Dr. Rea’s June 2007 report indicates that her February 5, 2007
results for a “Cholinesterase Panel” showed results of “low Cholinesterase Serum and
Plasma.” Id. at 120. The report does not show that a separate test for acetylcholine was
performed.

22

medically challenging claim. One might equally worry that under the government’s

view, conspiracy theorists would run to the nearest courthouse to file futile suits for every

injury they suspect had been caused by the government’s activities—even where that

suspicion is based on anecdotes from strangers and Internet gossip, even where that

suspicion is repeatedly refuted by objective, medical documentation to the contrary. The

discovery rule for accrual should not serve to reward those who tilt at windmills yet snub

reasonable and diligent plaintiffs.

To be clear, our holding today does not upend precedent in this Circuit or others

that “compelling” or “certain” proof of a cause is not a requirement before accrual may

begin. See, e.g., Kronisch v. United States, 150 F.3d 112, 123 (2d Cir. 1998); Nemmers

v. United States, 795 F.2d 628, 631 (7th Cir. 1986). Nor does a plaintiff in every case

need medical or scientific confirmation of a cause before the statute of limitation begins.

We only opine with respect to the facts of Ms. Bayless’ case that, after confronting

demonstrable evidence debunking her own suspicions, she cannot be charged as a matter

of law with knowledge under the discovery rule. We hold only that, in the circumstances

presented by the parties’ respective summary judgment filings, that Ms. Bayless’

administrative claim was timely filed.

Alternatively, Ms. Bayless argues that the district court erred as a matter of law in

holding that the doctrine of equitable tolling did not apply to FTCA claims. Because we

reverse on grounds that Ms. Bayless’ claims accrued in 2007 less than two years before

she filed her administrative claim, we need not reach whether the district court erred in

holding that the doctrine of equitable estoppel did not apply. Accordingly, we REVERSE

23

the district court’s dismissal for lack of subject-matter jurisdiction and REMAND for

further proceedings consistent with this opinion.9

.

9
Contrary to the dissent, we are not granting “summary judgment” on an issue where
none was requested. Ms. Bayless vigorously argued in the district court and on appeal
that her claim did not accrue until February 2007, just as the government with equal vigor
argued that it accrued at least by May of 2005. Nor are we willing to engage in
speculation that the government might have additional cards in its hand that it has yet to
play but which might turn the tide in its favor at trial. The parties had a full opportunity
to engage in discovery and to present such facts as they had in support of their respective
positions. The district court recited those facts in a thoughtful order, but we respectfully
disagree with the legal conclusion that the facts support an affirmative defense based
upon the statute of limitations. The unusual facts of this case lead us to the conclusion
that, as a matter of law, Ms. Bayless’ claim accrued in February 2007.

24

12-4120 – Bayless v. United States

HARTZ, Circuit Judge, concurring and dissenting:

I agree that the summary judgment in favor of the government must be set aside.

Reading the evidence in the record before us in the light most favorable to Ms. Bayless,

one could say that a person in her situation acting with reasonable diligence would not

have discovered the cause of her ailments more than two years before she filed her FTCA

claim.

But the majority opinion does more than set aside the government’s summary

judgment. It grants a (partial) summary judgment to Ms. Bayless on the limitations-

period issue. It holds as a matter of law that she filed her claim in a timely manner. It so

holds even though Ms. Bayless did not seek such a ruling in district court1 and did not

argue in support of such a ruling in this court.2 The 2010 amendments to Fed. R. Civ.

1
The pertinent heading in Ms. Bayless’s response to the government’s summary-
judgment motion was “Plaintiff’s Initiation of this Action Against the United States on
January 31, 2008, was Timely under the Facts and Circumstances Presented.” Pl.’s
Resp. to Defs.’ Mot. for Summ. J. at 7 (Bayless v. United States, No. 2:09cv00495 DAK
(D. Utah Jan. 11, 2012) (emphasis added)). It is one thing to argue that her complaint
was timely if the evidence conceded to be true for purposes of the government’s motion
is viewed in the light most favorable to Ms. Bayless; it is quite another to argue that her
complaint was timely if that same evidence, supplemented by any other (at this point
unknown) contrary evidence that the government may offer, is viewed in the light most
favorable to the government. Only the first argument was made by Ms. Bayless in
district court. And the district court, correctly believing that Ms. Bayless had not sought
any affirmative relief on the issue, began its Memorandum Decision and Order by saying,
“This matter is before the court on Defendant the United States of America’s Motion for
Summary Judgment.” Mem. Decision & Order at 1 (Bayless, No. 2:09cv00495 DAK (D.
Utah May 17, 2012)).
2
Although Ms. Bayless’s briefs on appeal argue vigorously (and, in my view, correctly)
that her claim was timely if we accept the facts submitted by the government as

P. 56 now prohibit the district court from sua sponte granting summary judgment (and

presumably partial summary judgment as well) without “giving notice and a reasonable

time to respond.” Id. Rule 56(f). The majority apparently do not believe that a similar

principle should apply on appeal. But why not give the government the same opportunity

it would have in district court? Indeed, why not follow our customary practice of

deciding only the issues presented to us and remanding further matters to the district

court? Because I think the relief granted by the majority opinion is inappropriate in the

circumstances of this case, I dissent from the majority opinion insofar as it holds that

Ms. Bayless’s claim was timely.

The majority opinion states that it is not “willing to engage in speculation” that the

government could successfully contest its decision. Majority Op. at 24 n.9. It assumes

that there is nothing that the government could have presented or argued that could

change the result. But not only does such an assumption run contrary to our tradition of

providing notice and an opportunity to respond before rendering a ruling, it suffers from

the sin of speculation attributed to my view. I would rather speculate in favor of

affording due process than speculate to support its denial.

So let me suggest how the government might have grounds to oppose a motion for

partial summary judgment by Ms. Bayless. For one thing, the majority opinion assumes

the accuracy of all of Ms. Bayless’s testimony. How can we be certain that the

government does not have evidence that would challenge that accuracy? There would

undisputed, they nowhere argue that this court should grant relief she did not seek in
district court—that is, that we should rule her claims timely as a matter of law without
giving the government an opportunity to present further evidence or argument.
2

have been no reason for the government to put on such evidence in support of its motion

for summary judgment. After all, it needed to base its motion on undisputed facts.

Impeaching Ms. Bayless’s testimony would have accomplished nothing, because the

court would nevertheless have to credit her veracity and the reliability of her memory.

Accordingly, the government set forth a summary of her deposition testimony as stating

undisputed facts. Those undisputed facts, however, were undisputed “only for the

purpose of presenting a legal theory, which, if accepted by the court, would entitle the

government to a judgment.” United States v. Mills, 372 F.2d 693, 697 (10th Cir. 1966);

see 10A Charles A. Wright et al., Federal Practice and Procedure §2720 (3d ed. 1998)

(“[A] party moving for summary judgment concedes the absence of a factual issue and

the truth of the nonmoving party’s allegations only for purposes of his own motion.”

(emphasis added)). On the other hand, if Ms. Bayless had moved for partial summary

judgment, perhaps the government could have defeated the motion by presenting

evidence contrary to hers on the facts essential to her motion.

The approach of the majority opinion will work a sea change in summary-

judgment practice. A party seeking summary judgment will now have to protect itself by

presenting all evidence that could impeach evidence favoring the opposing party. Such

evidence, of course, is irrelevant to the summary-judgment motion because the court

reviewing the motion must view the evidence in the light most favorable to the

nonmovant. But if the moving party does not include impeaching evidence, it could face

a court that follows the precedent established by the majority opinion and (1) construes

the nonmovant’s opposition to the summary-judgment motion as a request for a judicial

3

determination that the nonmovant is entitled to summary judgment (or at least partial

summary judgment on the issue) and (2) refuses “to engage in speculation that the

[movant] might have additional cards in its hand . . . which might turn the tide in its favor

at trial.” Majority Op. at 24 n.9.

The only advantage I can see to such an unfair procedure is that it will save paper

otherwise used in litigating cross-motions for summary judgment. Why file a cross-

motion when you have a better chance of a favorable ruling by just opposing the other

party’s motion? If Ms. Bayless had moved for a partial summary judgment that her

complaint was timely, the government would then have been alerted to the need to put on

any evidence it had that would cast doubt on Ms. Bayless’s assertions relevant to the

limitations issue. By not so moving, Ms. Bayless would avoid alerting the government

that it needed to respond. How much better simply to oppose the government’s motion

and not take a chance that her account could be impeached? If there is any precedent for

the approach of the majority opinion, I am not aware of it.

Moreover, even on the limited evidence now before us, the government could

marshal arguments that Ms. Bayless’s rendition of facts (which had to be accepted as true

for purposes of the government’s motion) is actually unlikely and that a reasonably

diligent person in Ms. Bayless’s situation would have discovered the cause of her

ailments significantly sooner than she did. It is important to keep in mind the legal

standard. The discovery-rule analysis depends on what the plaintiff knew as time

progressed. “The exercise of reasonable diligence is an ongoing process. What is

required at any particular time depends on what one has notice of at that time. When

4

additional information is obtained, the standard of reasonable diligence may demand

action that would not have been demanded without receipt of the information.” United

States v. Denny, 694 F.3d 1185, 1190 (10th Cir. 2012). One could argue from the record

evidence that in early 2005 Ms. Bayless had acquired information mandating that she

obtain scientific testing of whether she had been exposed to sarin gas but that she had

delayed an unreasonably long time before doing so.

If we examine the evidence at hand in the light most favorable to the United States

rather than, as in the majority opinion, the light most favorable to Ms. Bayless, we get the

following picture. By early 2005 Ms. Bayless had learned (1) that where she had been

working shortly before her ailments first arose was near a military facility where sarin gas

was present and (2) that her ailments were similar to those of a man who had been

exposed to sarin at that facility. On May 4, 2005, she wrote to Mr. Queen, a clinical

nutritionist who had been treating her, that she was “pretty sure” that her problems had

been caused by exposure to nerve agents, probably sarin gas. App. to Aplt. Br. at 116. I

do not think that the majority would disagree that a reasonably diligent person would

promptly follow up on that belief. So what did she do?

On February 1, 2005, Mr. Queen had told her that the Institute of Orthomolecular

Medicine “would probably have a way to test for [nerve agents]” and that “the

information may be very useful.” She admits, however, that she did not follow up on this

advice.

Also, in July, August, or September of 2005, Mr. Queen had her take huperzine,

saying that it would relieve her symptoms if they were caused by sarin. After a few days,

5

however, her symptoms only got worse, so she quit using it. If that were the only reason

that Ms. Bayless quit investigating whether sarin had caused her problems, I would not

agree that she was acting as a reasonable person in that regard. Mr. Queen was not a

doctor. And huperzine is a Spanish club moss, not a prescription medication. A

reasonable person would not have relied on the huperzine trial as reason not to pursue

sarin as a cause.

The majority opinion suggests that a negative PCR test in December 2006 also

deterred Ms. Bayless from investigating sarin gas as the cause of her condition. But the

PCR test was for exposure to biological weapons. Sarin is not a biological weapon.

What about the acetylcholine test? Ms. Bayless testified that she had learned from

Internet research by February 2005 that such a test could help decide whether she was

suffering from exposure to nerve gas. And a test of that nature (the record before us

leaves unclear whether it was an identical test) is ultimately what she bases her present

claim on. To act with reasonable diligence she would have needed to pursue scientific

testing for exposure to nerve gas in early 2005. Contrary to the majority opinion,

however, there is a reasonable question whether she did. Ms. Bayless testified that

because of the importance of the test, she had it performed in 2005. But her recollection

may have been mistaken. At her deposition she, quite understandably, expressed

uncertainty about a number of matters in her medical history, including events in 2005.

Turning specifically to the acetylcholine test, the record before us contains no report of

such a test in 2005 or any mention of such a test in the medical records for that year. (Of

course, the parties may have documentation of such a test. But, in light of Ms. Bayless’s

6

testimony, it would have been irrelevant to any issue on appeal, so there would have been

no reason to include it in the appendix. Guessing about what evidence there may be is a

hazard in addressing an issue never addressed by the parties on appeal.) Although

Ms. Bayless testified that the test was performed by Dr. Moody, his office notes clearly

show that her last visit with him was on May 3, 2005, the day before she wrote the

message to Mr. Queen that she was “pretty sure” that sarin was the culprit. Dr. Moody’s

notes for May 3 do include the notation “test results,” but we do not know what the tests

were. Id. at 113. If Dr. Moody gave her the (negative) result of the acetylcholine test on

that date, it would be strange for her to write her message to Mr. Queen the next day.

And if the notation was to indicate that Dr. Moody should call her with the results, it

would be strange for her to write her “pretty sure” message without awaiting the results

or even mentioning that she was awaiting results. In addition, Ms. Bayless testified that

sometime between July and September of 2005 she tried huperzine for a few days. But

why was she still being tested for sarin if she had earlier received test results (the

acetylcholine test) that convinced her that sarin was not the cause of her ailments?

Thus, a reasonable factfinder could find that Ms. Bayless’s decision in 2005 not to

pursue sarin was the result of the huperzine trial, not a nonexistent acetylcholine test.

And if that were the case, I would say that Ms. Bayless had not acted with reasonable

diligence and that a reasonably diligent person in her situation would have discovered the

sarin connection substantially before she actually did.

For these reasons, I dissent from the decision of the majority that as a matter of

law Ms. Bayless’s claim was timely.

7