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From Products Liability Law Daily, April 29, 2014

Claims that plaintiff’s medical problems were caused by Army chemical weapons testing were timely filed

By John W. Scanlan, J.D.

An administrative claim filed in 2008 by a former state wildlife resources range technician against the federal government asserting that her ongoing medical problems were caused by exposure to undisclosed chemical weapons testing at nearby U.S. Army bases in 1997 was timely filed because it did not begin to accrue until she received positive cholinesterase test results in February 2007 (Bayless v. United States, April 28, 2014, Jackson, R.).

Background. After she graduated from college in 1997, Carolyn Bayless worked for the Utah Division of Wildlife Resources as a seasonal range technician, for which she traveled around the state to conduct wildlife studies. She was unaware that two of the locations she visited were located near the U.S. Army’s Dugway Proving Grounds and the Tooele Chemical Agent Disposal Facility, which were then conducting chemical and biological weapons testing. She began to experience periodic numbness and blurred vision in October 1997, about a month after completing her work. She saw an ear, nose, and throat specialist in February 2008, and an MRI showed normal results. Her symptoms worsened, including spreading numbness, severe vertigo, and difficulty walking, and eventually she became unable to care for herself. She saw many medical professionals over the next several years that diagnosed her with a variety of conditions and prescribed numerous treatments without success.

In early 2005, she spoke with a woman who had similar symptoms and learned that the woman had developed them after visiting an Army base. Bayless visited a number of other doctors that year while investigating biological and chemical weapons testing and discovered the existence of the two Army bases. A man with similar symptoms who had previously worked at Dugway and who suspected that he had been exposed to nerve agents while working there told her that the government had been shooting munitions filled with VX and GV nerve agents and had lost many of them outside Dugway’s borders. In May 2005, Bayless emailed her nutritionist that she was “pretty sure” that her symptoms were caused by exposure to nerve agents. However, she received a negative acetylcholine blood test around the same date, and later that year she was unsuccessfully treated with huperzine to neutralize effects of sarin gas exposure. By early 2006, she was seeing a nutritionist who believed that Bayless was suffering from an intestinal tract infection but obtained a polymerase chain reaction (PCR) test for biological weapons in late 2006 that came back negative.

In February 2007, Bayless saw Dr. William Rea, a specialist in neurotoxicity who administered a cholinesterase test that came back positive. In June, he wrote a report diagnosing her with encephalopathy; toxic effects of molds, pesticides, and metals; chronic fatigue; fibromyalgia; autonomic nervous system dysfunction; vasculitis; and immune deregulations. He determined that her symptoms were “delayed sequelae in Sarin exposure” and stated that he “firmly believed” that her conditions were caused by workplace exposure to pesticides, heavy metals, molds, and mycotoxins.

Bayless filed an administrative claim on January 31, 2008, and a complaint under the Federal Tort Claims Act (FTCA) in a federal district court on May 29, 2009. The government moved to dismiss, asserting that she failed to file her administrative claim within two years of the accrual of the claim. The court granted the motion, finding that Bayless had enough knowledge as of May 2005 for her claim to begin to accrue and that her claim had not been equitably tolled. Bayless appealed, arguing that the two-year limitations period began running no earlier than February 2007, when she received the positive cholinesterase test results.

Statute of limitations. The Tenth Circuit held that Bayless’ claim was timely filed because her claim did not begin to accrue until February 2007. Her injury occurred in 1997 when she was apparently exposed to undisclosed chemical weapons testing while working near the Dugway and Tooele Army bases in Utah. Although the government argued that Bayless failed to pursue certain leads in her course of treatment, a plaintiff is not required to pursue every possible clue in order to be considered reasonably diligent. The court observed that Bayless traveled around the country visiting as many doctors and other professionals in a decade as most people do in a lifetime, during which time they pursued theories of ischemic attacks, multiple sclerosis, Epstein-Barr infection, a neck condition, heavy metal poisoning, uranium exposure, a seizure-related condition, a systemic yeast infection, and psychosomatic disorder.

The government asserted that once she became aware of the existence of the Dugway and Tooele Army bases in early 2005, she had received enough direction from her doctors to connect her injuries to their cause. However, mere subjective suspicion by a layperson was insufficient in this context to trigger the accrual statute, in light of her negative acetylcholine and biological weapons exposure tests and her unsuccessful treatment with huperzine for sarin gas exposure in 2005 and 2006. While she suspected that activities on the Army bases caused her injuries, she received objective medical results to the contrary from various medical professionals until her tests in February 2007. Under existing precedent, “compelling” or “certain” proof that a cause of action existed was not a requirement before the accrual of a plaintiff’s claim could begin; the court noted that it was not overturning this precedent, but only ruling that it could not find as a matter of law under the circumstances of this case that Bayless had knowledge of her claim pursuant to the discovery rule prior to 2007.

Dissent. In a partial concurrence and partial dissent, Judge Harris Hartz agreed with the majority in setting aside the district court’s grant of summary judgment to the government but disagreed to the extent that it held that she had timely filed her claim, which he asserted constituted a partial summary judgment for Bayless. For purposes of the summary judgment motion, the court assumed that all of Bayless’ testimony was accurate and, thus, there was no reason in a motion for summary judgment for the government to present facts challenging its accuracy. Judge Hartz argued that the majority’s approach would change summary judgment practice by requiring parties seeking summary judgment to present all evidence that could impeach the non-moving party, even though it was irrelevant to the summary judgment motion. He further asserted that the limited evidence that was presented could be used by the government to show that a reasonably diligent person in her situation would have discovered the cause of her conditions earlier than she did. However, responding to Judge Hartz’s dissent, the majority denied that it was granting summary judgment to Bayless when she did not request it, stating that the unusual facts of the case led the court to its conclusion that the claim began accruing in February 2007.

The case number is 12-4120.

Attorneys: Keith Edwards (Hutchinson Black and Cook, LLC) for Carolyn Bayless. Jeffrey E. Nelson, Office of the United States Attorney for the U.S.A.

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