The 10th Circuit Court of Appeals ruled Friday that a Colorado woman who asserts she was exposed to nerve agent while working near Dugway Proving Ground is allowed to file a claim against the Army.
The court reversed a U.S. District Court of Utah dismissal of Carolyn Bayless’ claim under the Federal Tort Claims Act. That dismissal sided with the Army’s assertion the woman’s claim of medical problems allegedly caused by exposure to nerve agent while working in the desert near Dugway exceeded the statute of limitations by two years.
In 1997, Bayless, a new college graduate, got a seasonal job with the Utah Department of Wildlife Resources. The DWR posted her in remote parts of the state, including one site about 10 miles away from Dugway and another about two miles away from the Tooele Chemical Agent Disposal Facility, or TOCDF, located at what was then Deseret Chemical Depot, according to court records.
In October of that year, just after her seasonal job ended, Bayless began to experience blurred vision and episodic lip numbness, according to documents. She initially thought they were due to sitting in front of a computer for several hours per day.
An examination and MRI from an ear, nose and throat specialist about four months later showed normal results; however, Bayless experienced numbness throughout her entire left side soon after, according to court documents.
An evaluation from a neurologist in May 1998 likewise showed normal results, even as the numbness spread to Bayless’ right foot and arm, according to the documents. A severe bout of vertigo sent Bayless to the emergency room in July of that year, but a subsequent examination by a second neurologist again showed nothing amiss, the documents state.
In January 1999, one of Bayless’ doctors began to suspect her symptoms were caused by multiple sclerosis. The next month a neurologist and MS specialist diagnosed her with MS and prescribed medication, which did not improve her symptoms, according to court records.
Her condition briefly improved somewhat a year later, but worsened again in March 2000, causing her to have a miscarriage, the documents state. Two days later she began to experience severe difficulty walking and lost control of her fine motor skills.
Bayless was prescribed steroids, which worsened her condition, the records state. Yet another screening in July of that year again showed normal results.
That month, two other MS specialists determined she had been misdiagnosed and instead suspected her symptoms were psychosomatic, according to court records. In October of that year, another doctor diagnosed her as having a chronic Epstein-Barr viral infection, for which she was prescribed vitamins and supplements, records state.
But a month later another MS specialist agreed her symptoms were psychosomatic and would disappear on their own. After that, Bayless stopped seeking medical treatment.
In August 2001, Bayless gave birth to a daughter, and did not seek more medical care until October 2002, when she began treatment with a series of chiropractors because she thought her symptoms might be connected to a neck problem, according to documents.
One chiropractor began to suspect her work in southern Utah, near nuclear testing and mine tailing sites, may have given her heavy metal or mercury poisoning, the records state. Bayless was sent to a dentist to remove her mercury tooth fillings, but her symptoms did not improve.
She was referred by that dentist to a clinical nutritionist in 2003, who performed blood work analysis and said he suspected her symptoms were caused by organophosphate pesticide poisoning, the records state. Bayless began detoxification treatment, which she had to discontinue in December 2004 when her doctor noted she suffered from apparent chronic renal failure.
In 2005, Bayless read a magazine article by a woman who had experienced similar symptoms, which she attributed to visiting an Army base that was testing biological weapons, according to the records, and referred Bayless to a medical researcher specializing in biological weapons.
The researcher suggested some possible forms of diagnosis for Bayless to pursue, but Bayless only discussed biological weapons, not nerve agents, with the researcher, the records state.
Bayless did not pursue any of the diagnostic tests suggested by the researcher, but did begin to do research of her own into the type of weapons testing at Army bases near some of her work sites, including Dugway and Tooele, according to the documents.
In this research, Bayless found a former Dugway employee who suspected he had been exposed to nerve agents while working there in 1996 and whose symptoms matched her own, the records state. She also found accounts suggesting employees at TOCDF near a chemical agent incinerator may have also suffered neurological problems.
In May 2005, Bayless was given an acetylcholine test, which measures the amount of a chemical that inhibits a communicative enzyme in muscles. It found there was a buildup of the chemical in the nerve endings of her muscles that was causing neuromuscular problems, according to documents. A treatment for the buildup later in the year was unsuccessful, the documents state.
In early 2006, Bayless had abandoned her suspicion that her symptoms were caused by exposure to nerve agents near Dugway or DCD. She again began working with a nutritionist, who suspected she had a candida infection in her intestinal tract.
Bayless started a strict diet to treat that diagnosis, which was also ineffective. In December of that year, Bayless revisited her suspicion of being exposed to nerve agent. Despite negative results on one test in December 2006, another test in February 2007 found positive evidence suggesting exposure to neurotoxins, according to documents.
A specialist in neurotoxicity diagnosed Bayless in June 2007 with toxic encephalopathy, among a host of other diagnoses, and noted he believed her symptoms were a result of her exposure to “pesticides, heavy metals, molds and mycotoxins in the workplace,” according to documents.
In January 2008, Bayless filed a claim alleging that Army activities at Dugway, during her time working near the military installation, resulted in her having permanent neurological problems and other maladies, according to records.
In December 2011, the government moved to dismiss her claim, arguing that it was not filed within two years of discovering the cause of her symptoms and the connection to the federal government, the records state; the motion was granted in May 2012, agreeing that Bayless had enough knowledge by May 2005 to file a claim.
The 10th Circuit Court of Appeals, however, disagreed with the district court’s ruling.
“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,” the opinion states. “But when she followed up on her suspicions with various professionals, she received, if anything, objective medical results to the contrary.”
The appeals court noted that while the statute of limitations generally begins on the date of injury, in exceptional cases, a plaintiff may not know they have been injured, in which case the statute of limitations should begin at the date of discovery.
This case, where Bayless was “injured” in 1997, is one of those exceptional cases, the opinion states, and the statute of limitations for her case should begin in February 2007 when she received the positive test results indicating that she had been exposed to nerve agent.
It further cited her string of doctors as evidence of her reasonable diligence in trying to get to the bottom of her medical mystery and the fault behind it.
“In early 2005, Ms. Bayless did, of course, know of the existence of the Army bases,” the opinion states. “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,” it adds. “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. We hold only that, reviewing the evidence in the light most favorable to Ms. Bayless, her administrative claim was timely filed.”