PUBLISH

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CAROLYN BAYLESS, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA, Defendant - Appellee, and UNITED STATES ARMY; KAROL RIPLEY, Lt. Col. Commander Tooele Army Depot; DESERET CHEMICALDEPOT, 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 (D.C. No. 2:09-CV-00495-DAK)

________________ _________________ ORDER

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

________________ _________________

* Honorable R. Brooke Jackson, U.S. Distri ct Judge, United States District Court for the District of Colorado, sitting by designation.2 This matter is before the court on th e petition for panel re hearing filed by the United States. We also have a response from the appellant. Upon consideration, we grant panel rehearing in part. Specifically, rehe aring is granted to the extent of the modifications made in the attached amende d decision. The primary amendments can be found on pages 2 and 23 of the court’s opin ion. The request for panel rehearing is otherwise denied. The clerk is directed to reissue the amended decision forthwith.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkPUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ __________________ 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 CHEMICALDEPOT, 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.

________________ __________________ 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., Mo ab, Utah, with her on the briefs), for Appellant. FILED United States Court of Appeals Tenth Circuit 

### September 12, 2014
Elisabeth A. Shumaker Clerk of Court2 Jeffrey E. Nelson, Assistant United States A ttorney (David B. Ba rlow, United States Attorney, with hi m 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 fro m a mysterious debilitating illness. As her condition deteri orated over the years that fo llowed, she doggedly sought to learn what caused (and how to treat) her ill ness. Finally, in 2008 , convinced that she was the victim of exposure to nerve gas emi tted by an Army testing facility, she filed a claim under the Federal Tort Claims Act. Wh en this lawsuit followe d in 2009, the Army responded that she knew of her claim by at le ast 2005 and had waited to o long to assert it. The district court agreed and granted su mmary judgment dismissing the case. We conclude that under the unusual circumstances presented here, the district court erred in holding that the period of limitation accr ued by May 2005. Th erefore, 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 St ates District Judge for the District of Colorado, sitting by designation.3 conduct various wildlife studies, including on e location less than te n miles away from the Dugway Proving Grounds (“Dugw ay”) and another location w ithin two miles of Tooele Chemical Agent Disposal Facility (“Tooele” ). Unbeknownst to Ms . Bayless during the time in which she work ed near them, both Dugway and To oele were United States Army sites then conducting chemical a nd biological weapons testing. In October 1997, about a month after co mpleting her seasonal position with the Utah Division of Wildlife Resources, Ms. Bayless began to experience episodic lip numbness and blurred vision, whic h she attributed at that time to sitting in front of the computer for numerous hours a day. Afte r the symptoms failed to dissipate, however, Ms. Bayless sought medical evaluation. In February 1998 she saw an ear, nose, and throat specialist who perform ed an MRI, which returned normal results. Shortly afterwards and notwithstanding those normal results, Ms. Bayless experienced numbness through her entire left side following cleanin g her house with chemicals. Ms. Bayless thus began a long and arduous s earch for an answer to her wo rsening medical condition. In May 1998, Ms. Bayless sought evaluatio n from a neurologist, Dr. Christopher Reynolds, whose tests likewise revealed normal results. Th e numbness meanwhile spread to Ms. Bayless’ right foot and right ar m. 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 suffe red 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.” M ERRIAM -W EBSTER O NLINE D ICTIONARY , available at https://www.merriam-webst er.com/medical/ischemia.4 month, Ms. Bayless sought out a second ne urologist, Dr. Dennis Thoen, whose tests again showed normal results. In January 1999, however, Dr. Thoen be gan to suspect that Ms. Bayless’ symptoms were caused by multip le sclerosis (“MS”). After a series of referrals, in February 1999 a neurologist and MS specia list, Dr. John Rose, formally diagnosed Ms. Bayless with MS and prescribed medicati on accordingly. Ms. Bayless’ condition, however, only continued to worsen, and sh e discontinued the MS medication in August 1999. Ms. Bayless’ condition thereafter seemed to improve, and she became pregnant in January 2000. Unfortunately, he r improvement proved to be temporary. In March 2000 Ms. Bayless’ health took a dramatic turn fo r the worse when she su ffered a miscarriage and underwent an emergency dilation and cu rettage. Two days later she began to experience severe difficulty walk ing, 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 th is sudden deterioration wa s related to MS, Dr. Rose prescribed oral steroids on March 24, 2000. The steroids only worsened Ms. Bayless’ condition. Despite what was happening, ho wever, 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 improperly5 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 C linic 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 docto rs 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 ye ar after her daughter’s birth. In October 2002, Ms. Bayless, now ha ving discarded the MS theory and suspecting that her symptoms might be relate d to neck issues, began treatment with a series of chiropractors. On her intake fo rms with one of the ch iropractors, 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 e nd 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.6 Subsequently, still in 2003, Ms. Bayless wa s referred by her dentist to a clinical nutritionist, Sam Queen. On the “Possible Ex posure” 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 work ed for the Division of Wildlife fo r 6 months collecting plant and soil samples.” App. to Appellant Br. 64. M r. 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 investig ation into the diagnosis, she began Mr. Queen’s detoxification regimen. However, Ms. Bayless stopped that regimen in December 2004 on the reco mmendation of her physician at the time, Dr. Dennis Remington, who noted that she suffered fro m an apparent chronic renal failure. In early 2005, Ms. Bayless read a mag azine article by a wo man named Pauly who had experienced similar symp toms. When Ms. Bayless spoke with Pauly on the telephone, she learned that Pa uly developed her neurological symptoms after visiting an Army base. Pauly suspected her own sympto ms were caused by biological weapons testing at the base, and she referred Ms. Ba yless to Dr. Garth Nicolson, a research professor at the Institute of Molecular Medi cine in San Diego wh o studies biological
weapons. Dr. Nicolson suggested to Ms. Bayless va rious methods of detecting exposure to biological weapons, including a polymerase chai n reaction (“PCR”) test . Ms. Bayless did not obtain a PCR test at that time due to “deb ates on whether the PCR is accurate or not.” Id. at 73. Notably, Ms. Bayl ess did not discuss nerve agen ts with Dr. Ni colson, only7 biological agents and the related conditions caused by mycoplas ma 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 ag ents, 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 te st for this,” and that “the information may be very useful.” Id. Ms. Bayless did not follow up with this In stitute. Instead, on February 9, 2005 Ms. Bayless raised the issue with Dr. Reming ton who recorded that he discussed “new ideas” with Ms. Bayless about her work hi story 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. Bayl ess 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 War8 Illness. However, neither Ms. Bayless nor Dr. Moody followed up by contacting Major Lynch. In an undated letter from early 2005 to M r. Queen, Ms. Bayless commented on her mother’s medical history while she was pregnant with Ms. Bayless. Ms. Bayless remembered that her mo ther 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 we akness in my central nervous sy stem/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 doctor 2 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 bu ildup 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 th at treatment with huperzine would eliminate any acetylcholinesterase inhibitors. 3

2 Although the letter is unclear, Ms. Bayless believes that this doc tor she mentioned was referring to Dr. Moody, who later performed an acetylcholine test in May 2005. 3 As discussed below, Ms. Bayl ess was treated unsuccessfully with huperzine later in the summer or fall of 2005.9 On March 15, 2005, Dr. Moody recorded in Ms. Bayless’ history that “[a]ll [signs and symptoms] preceded by work ing at forestry service near Dugway [with] exposure to Seran [sic], Brucelloses [sic], mu ltiple 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 nega tive 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. M r. Harris shared similar symptoms to those experienced by Ms. Bayless, including “bra in fog, numbness, muscle weakness, and chronic fatigue.” Id . at 71, 116. Mr. Harris informed Ms. Bayless that “the government was shooting munitions filled w ith VX and GB nerve agents in to 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 governme nt performed during that time. On May 3, 2005, Ms. Bayless saw Dr. Moo dy 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.10 On May 4, 2005, Ms. Bayless, citing he r own research and the information she learned from Mr. Harris about Dugway, wrot e in an email to M r. Queen: “I now am pretty sure that my sympto ms were caused by low-leve l 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 oper ated “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 effect s of sarin nerve gas by targeting inhibitors of acetylcholinesterase enzymes and thereby re stored Ms. Bayless’ acetylcholine levels. After three days of treatment, however, Ms. Ba yless’ condition not only failed to improve but it actually worsened. Mr. Queen ther efore 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, havi ng abandoned the possibility th at 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. Bayl ess 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 Ma y 4 to Mr. Queen. Appellant states in briefing that the results came af ter 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.11 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 we apons, the test previously recommended by Nicolson in 2005. The te st results for mycoplasma fermentans and mycoplasma incognitus returned negativ e in December 2006. Finally, Ms. Bayless sought out Dr. William Rea, a specialist in neurotoxicity at the Environmental Health Center in Dallas, Te xas. During her first visit with Dr. Rea on February 5, 2007, Ms. Bayless told him ab out 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 show ing low cholinesterase levels—an opposite result from the acetylcholine te st 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 e ffect 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 . . . are12 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, a nd mycotoxins in the workplace.” Id. at 127.

B. Procedural History Ms. Bayless filed an administrative clai m 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 th e United States District Court for the District of Utah. On December 2, 2011, the government mo ved for summary judgment to dismiss Ms. Bayless’ complaint for lack of subject-m atter jurisdiction. The government argued that Ms. Bayless failed to present her administ rative claim within two years of the accrual of that claim pursuant to 28 U. S.C. § 2401(b). After heari ng argument on April 19, 2012, the district court granted the motion on May 17, 2012. The di strict court concluded that Ms. Bayless acquired enough knowledge by Ma y 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 sh ields 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 (19 94)). The FTCA waives the United States’ sovereign immunity from to rt claims and makes it liable “in the same13 manner and to the same extent as a privat e individual under like circumstances.” 28 U.S.C. § 2674. A tort claim against the gove rnment, 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 immun ity under the FTCA, and [a federal] court lacks subject matter jurisdiction to proceed u nder 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 hist ory 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 cl aims against the Government,” and like other statutes of limitations, it reflects the “legisla tive judgment that it is unjus t to fail to put the adversary on notice to defend within a specifi ed period of time, and that the right to be free of stale14 claims in time comes to prevail ove r 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 1267. In exceptional cases, however, the “discovery rul e” applies to “protect plaintiffs who are blamelessly unaware of their claim because th e 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 to rtfeasor or otherwise not evident.” Plaza Speedway , 311 F.3d at 1267 (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 ex ceptional case where the discovery rule applies. Ms. Bayless’ injury occurred in 1997 wh en 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 ot her 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. Ba yless her] right to compensation under the
FTCA.” Plaza Speedway , 311 F.3d at 1268. Starting with the episodic numbness and bl urred vision in Oc tober 1997, and as each symptom of her in jury revealed itself, Ms. Bayless would develop knowledge of an15 ever-worsening injury. But, at least initially, Ms. Bayl ess 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 sear ch for an answer despite d ead 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 wh en she received the po sitive cholinesterase test results from Dr. Rea. That theory, says the govern ment, 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 opera tions 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 w ith an October 18, 1993 lette r indicating that hazardous substances were present in the groundwa ter and soil. The owners filed their administrative claim on October 13, 1995.16 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 give n the owners “reason to suspect the source might ha ve been the neigh boring 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 owne rs knew at the time of purchase of the property that the Army had been testing va rious chemicals on the adjacent airfield; and (3) the property had no other neig hbors than the Army airfield. Id. at 1270–71. The facts in Ms. Bayless’ case are ra ther 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 potentia l “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 cer tain leads, including Dr. Nicolson’s suggestion to take a PCR te st, Dr. Nicolson’s reference to Gulf War Illness and Major Lynch, and Mr. Queen’s me ntion 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, ha d Ms. Bayless pursued it, might have led her to Dr. Rea’s sarin toxicity diagnosis earlier b ecause his title is Director of Orthomolecular Health-Medicine. Compare Appellant Br. 12 n.3 with Appellee Br. 9 n.3. Unfortunately17 PCR test because its accuracy was debated—i ndeed, 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 (q uestion 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 trav eled throughout the country to do so. On advice from those physicians, neurologists, chiropractors, nutriti onists, and other professionals, Ms. Bayless passed through theories on ischem ic attacks, multiple sclerosis, an Epstein-Barr infection, a neck-related condition, heavy metal poisoni ng, uranium exposure, a seizure-related condition, a systemic yeast inf ection, and was even told by mo re than one doctor that her symptoms were entirely psycho somatic. To hold that Ms. Bayless must have followed every word of advice from every professiona l 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 To oele until early 2005. Accord ing to the government, upon this discovery in 2005, Ms. Bayless beca me 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 caus e and injury. The

for Ms. Bayless, her failure to raise the i ssue 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 a nd Dr. Nicolson or Dr. Rea.18 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 pr ior “organophosphate pesticide toxicity” diagnosis in 2003 6 as well as his intimations at a “s econdary 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 wh ether a legal distinction exists between one’s own suspicion that something is a caus e and the requisite objective knowledge that begins the accrual clock. An example from the Seventh Circuit ma kes the point that subjective suspicion is not necessarily enough.
In Stoleson v. United States , 629 F.2d 1265(7th Cir. 19 80), 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 treati ng physician told her that exposure to

6 According to the government, th is is the same diagnosis that Dr. Rea later gave in 2007. Nevertheless, not only did Ms. Ba yless 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 expos ure to no avail and only stopped when she discovered from Dr. Remington that she had be gun to suffer from chronic renal failure.19 nitroglycerin was not the cause. She neverthe less requested (unsuccessfully) a transfer to a work area free from nitroglyc erin, and she continued to experience periodic angina attacks until her employment wa s terminated in 1971. Meanwhile, her suspicion of a nitroglycerin connection continued. In the spring of 1969 she read an article suggesting that su dden withdrawal from nitroglycerin can cause angina chest pains. Later that year an o ccupation safety inspecto r told her that he believed her heart problems were caused by exposure to nitrogl ycerin, 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 he r and concluded that her cardiovascular problems were related to nitr oglycerin 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 cl aim on August 16, 1972, and after striking out there, filed suit under the FTCA. In gr anting the government’s motion to dismiss the district court found, among othe r things, that if the discovery rule applied, her claim accrued in November 1969—mor e than two years before she filed her administrative claim—when she read the article and spoke to the safe ty inspector.20 The Seventh Circuit reversed. “A laym an’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 scie nce did not at that time recognize the causal connection, “[t]o fix the time of accrual at this time would provi de [plaintiff] with nothing more than a delusive remedy.” Id. Only in 1971, wh en the cardiologist documented the relationship between occupati onal exposure to nitrogl ycerin and angina, informed the plaintiff of his findings, and al so 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 can not be expected to discover the general medical cause of his injury even befo re the doctors themselv es are able to do so.”); Nicolazzo v. United States , 786 F.2d 454, 456 (1st Ci r. 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 sh ould have known the cause of plaintiff’s seizure “when the docto rs, 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 unreasonab le to hold [a plainti ff] to a higher degree of medical competence and understandi ng than the many medical experts she consulted.”). Stoleson is distinguishable. There is no indi cation in the facts here that medical science did not recognize a connection betwee n exposure to nerve agents and symptoms21 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 suspic ion. While in some circumstances that might be suffi cient to trigger the statute, it cannot do so here when the context is considered. In early 2005, Ms. Bayless did, of cour se, know of the existence of the Army bases. She suspected, at times, that their activities caused her inju ries. But when she followed up on her suspicions with variou s professionals she received, if anything, objective medical results to the contrary. An d it was not just one doctor who turned Ms. Bayless away. She received three empirica l results from three different doctors, all evincing what appeared to be the objective truth that Dugw ay and Tooele were not to blame. First there was a negative acetylchol ine test in early May 2005 by Dr. Moody, notably administered around the same time that she wrote she was “pre tty sure” that sarin gas exposure was the cause of her conditi on. 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 treatmen t with Dr. Montague throughout

7 In Kubrick the Court held that the two year stat ute 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 pr ior surgery), not wh en he later was informed by another doctor that the administration of the drug wa s malpractice. 444 U.S. at 118–22. Armed22 2006 on a theory that she suffered from a candida infecti on. Once again, the new theory failed, and her evidence is that it was not until her consultation with Dr. Rea and the ensuing cholinesterase test 8 in February 2007 that she kn ew 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 th e statute of limitations in many cases to “be deferred indefinitely while the prospec tive claimant searched for some physician willing to connect her conditio n 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 disc overy rule inquiry is to recompense the reasonable diligen ce of an enduring plaintiff despite a scientifically or with knowledge of the injury and its cause, a diligent plai ntiff 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 dilig ent 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 lega l 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 hi s 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 te sted 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 Cho linesterase Serum and Plasma.” Id. at 120. The report does not show that a separate test for acetylcholine was performed.23 medically challenging claim. One might e qually worry that under the government’s view, conspiracy theorists would run to the near est courthouse to file futile suits for every injury they su spect had been caused by the government’s ac tivities—even where that suspicion is based on anecdotes from strange rs and Internet gossi p, even where that suspicion is repeatedly refute d by objective, medical documen tation to the contrary. The discovery rule for accrual shou ld not serve to reward those who tilt at windmills but yet snub reasonable and diligent plaintiffs. To be clear, our holding toda y does not upend precedent in this Circuit or others that “compelling” or “certain” proof of a caus e 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 re spect to the facts of Ms. Bayle ss’ case that, after confronting demonstrable evidence debunking her own susp icions, she cannot be charged as a matter of law with knowledge under the discovery rule. We hold only that, reviewing the evidence in the light most favorable to Ms. Ba yless, her administrative claim was timely filed. Alternatively, Ms. Bayless argues that the di strict 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 had not accrued by the da te of her filing her administrative claim, we need not reach whether the district court erred in holding that the doctrine of equitable estoppel did not apply.24Accordingly, we REVERSE the district court’s dismissal for lack of subjectmatter jurisdiction and REMAND for further proceedings c onsistent with this opinion.