Bayless v. United States

749 F.3d 1235, 2014 WL 1663082, 2014 U.S. App. LEXIS 7877
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 28, 2014
Docket12-4120
StatusPublished
Cited by2 cases

This text of 749 F.3d 1235 (Bayless v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bayless v. United States, 749 F.3d 1235, 2014 WL 1663082, 2014 U.S. App. LEXIS 7877 (10th Cir. 2014).

Opinions

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 (“Dug-way”) 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. [1237]*1237Shortly 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. Bay-less 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

[1238]*1238of 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 “organo-phosphate 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marshall v SSA
2014 DNH 180 (D. New Hampshire, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
749 F.3d 1235, 2014 WL 1663082, 2014 U.S. App. LEXIS 7877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayless-v-united-states-ca10-2014.