IN ONE OF MY EARLIEST APPEARANCES before the Mississippi Supreme Court, I had arrived early to watch the arguments of the attorneys on the docket ahead of me. I was relatively inexperienced and nervous about my coming appearance before the Court. The Court sat in panels of three (there being 9 Justices on the Court) and after the Clerk announced the opening of Court, the three justices, black robed and solemn, marched in and took their seats.
Standing before them at the lectern was a diminutive, balding attorney from Jackson, MS, whom I had never met but whose reputation had preceded him. I knew him as a plaintiff’s attorney, that is, a representative of people and not corporations, and it soon became apparent to me that he was arguing for the Court to adopt a new rule in Mississippi law in workers’ compensation cases, one patterned after a rule in Florida.
What really astounded me about him was his presence before the Court, and I was mortified when he began lecturing the worthy Justices on the need, indeed their duty, to adopt the rule of law he advocated. He so much as began to point his finger at each Justice as he lectured. Mixed with my mortification at such audacity before the Court was my admiration for such a lawyer, nay, such bravery, to speak to the Court so in his passion for his legal proposition and his zealotry for his client. I was so impressed that after his argument, as he passed to leave the chambers, I introduced myself, giving my name and where I practiced, and he smiled and simply said “Hello, David Butts from Tupelo” and left.
That meeting was the genesis of my representation of David Speck, a client I would represent for nearly 20 years.
Some months later I got a call from his partner, who was to appear at a social security hearing Tupelo that day. She stated that she had been sick and asked if I would go to the hearing, explain why she could not appear and ask that the hearing be continued. I agreed to do so. I appeared at the hearing, having never met the client, one David Speck.
The Administrative Law Judge had been transferred from some northern clime to help with the caseload in Tupelo, MS. I announced who I was and advised him that the client’s attorney could not appear and did as I was asked and requested a continuance of the case. The Judge immediately turned red-faced and, in a tone as though I had informed him his dog had been shot, loudly advised me that he had come this far to hear this case and he would do so and I was to advise the attorney to notify her malpractice carrier. Ominous, to say the least, both for the client and his attorney.
I did the only thing I could do, and that was to quickly introduce myself to the client and present the case to the Judge. The Judge seemed mollified and the case went smoothly. Later, Mr. Speck was awarded his social security benefits by this Judge and there was no need for the attorney to notify her malpractice carrier.
But there was more to David Speck’s case. He was an automotive painter from a neighboring county who had gone to work at the Grand Gulf nuclear plant in Port Gibson, MS (far south of Tupelo and his home) for the good pay, to better support his wife and children. The problem was, in sand-blasting and painting the interior of the nuclear plant, his lungs had filled with silica and zinc dust and severely impaired his lung function to the extent he could no longer work. So, he asked me to take over his workers’ compensation case and with the permission of the attorneys from Jackson I did so.
Then began the longest fight with a workers’ compensation insurance company of my career to that time and since. I filed his claim.
The insurance company contended his previous jobs painting and his smoking were the causes of his disability…paying him nothing as we litigated. Much time was wasted on an environmental/occupational physician in New Orleans (who later went to jail for bank robbery). The problem of getting a scientifically supported and objective determination of the cause of his condition consumed much time. The insurance company fought us at every turn.
Time was the enemy. Finally, I was able to send him to a pulmonologist in Tupelo for testing and the recommendation was for a biopsy of his lung. What seemed to be a relatively minor matter turned into a major operation for he later showed me his scar, some foot and a half long running down the side of his abdomen.
The pulmonologist then sent the tissue sample to a pathologist in Syracuse, New York, and his report was supportive of my client’s claim that his lung injury occurred at work at the nuclear plant.
I could not use the pathologist’s report at my client’s hearing (hearsay). I had to have his sworn testimony (deposition), which meant a trip to Syracuse. The pathologist would only do such depositions on Sunday mornings, at 8 a.m. Having no other choice, I set the deposition, made the flight to Syracuse and appeared at the doctor’s office at the appointed time on Sunday morning. But there was a hitch.
The insurance company’s attorneys’ flight from Atlanta had been cancelled because of weather and they, of course, were not there. I examined the doctor, and he was supportive of my client’s case, as he had said in his report, and attributed none of his lung impairment to smoking or Speck’s previous occupation and all to his exposure at the plant. But since the insurance company’s attorney’s had not made it to the deposition, it was noticed again for their cross-examination.
Another trip to Syracuse. (The expense and effort of all this, borne by me—as all attorneys for workers’ compensation clients have to bear, since such clients have little or no money and what they had went to support their families—has to be seen in the context of the limited compensation available at the time –1982—when the weekly maximum benefit was $133.00 and benefits for total disability were $63,000.)
By law, attorney’s fees were (and are) limited to 25% of the award to the injured worker.
Mr. Speck got his first hearing. The Judge awarded him half benefits—reasoning half his disability was due to the injury to his lungs at the nuclear plant and half to his previous occupation and smoking. We appealed to the Circuit Court, which reversed the workers’ comp Judge and awarded full benefits. Of course, the insurance carrier appealed to the Mississippi Supreme Court which, in 1991, held Speck entitled to full disability benefits. The case had taken 9 years.
Over the years I had watched David Speck’s health deteriorate to the point he was on oxygen most of the time and watched his children grow up. We did a final settlement of his future medical benefits and on April 10, 2006, he died. But he fought to the end. You can read his case at Delta CMI v. Speck, 586 So. 2d 768 (Miss. 1991).