The Scales of Justice
California Lawyer

The Scales of Justice

With his obesity law and advocacy center, Walter Lindstrom has created a niche representing the morbidly obese.

May 2000

"Right there on the table ... that's me," says Walter Lindstrom, pointing to a six-year-old photograph of himself when he was 35-a sad-looking man with a 400-pound problem. In the photo he is sitting on a patch of grass with an XXL T-shirt on. He's also wearing a god-awful pair of flowered pants. Seated next to him is his seven-month-old daughter. Together, he and she make quite a study in contrasts-like a whale next to a minnow.

Fat gets little respect in this cruel, weight-conscious world. And as a child, Lindstrom certainly endured his share of school-yard taunts. "Fatty, fatty, two-by-four, couldn't fit through the bathroom door," sang his peers. But for someone of Lindstrom's girth, it became more than just a matter of being teased, since Lindstrom's father died of congestive heart failure at age 54.

Unlike his father, though, Lindstrom has apparently managed to get his weight under control after undergoing a radical procedure that left a piece of his stomach on the operating table. The relatively svelte Lindstrom now weighs in at 245 pounds. He also laughs more easily than he ever did before and conveys a general sense of well-being.

But for all the lost pounds, Lindstrom's empathy for "people of size" remains undiminished. Which is why he started the Obesity Law and Advocacy Center in San Diego-a truly unique law practice devoted almost entirely to serving the legal needs of the obese.

"The fun thing about this practice," he says, "is that it involves employment law, discrimination law, employee benefits stuff, health insurance, managed care. I mean, it's got everything."

It's also a timely enterprise, judging from how overweight the country has become in recent years. As the U.S. Centers for Disease Control and Prevention reports, the number of obese people in the United States grew from one in eight to one in five between 1991 and 1998. And as recently as last fall the American Medical Association reported that the nation's weight problem had grown to epidemic proportions, resulting in more than 300,000 premature deaths a year.

At the extreme end of this deadly food chain are people of Lindstrom's former size-the morbidly obese. These are the people who are overweight by at least 100 pounds and who, as a consequence, bear the brunt of many weight-related diseases, including hypertension and diabetes. Nationwide there are now 10 million people who fit into this category, and they are the ones who dominate Lindstrom's client roster.

At any one time, Lindstrom has about 100 cases on his active file, 95 of which touch on weight in some fashion, whether it relates to workplace discrimination or in trying to get medical coverage. One organization that refers cases to him is the American Obesity Association, a Washington, D.C., advocacy group that the pharmaceutical industry funds. "We refer a lot of callers to him because he's an expert on the disability aspects of obesity," says the association's executive director, Morgan Downey, who is himself a lawyer. Lindstrom also draws clients from the frequent public speaking engagements he does-appearances that enable him to reach out to an audience that he strongly relates to.

As a law school student at the University of San Diego, Lindstrom had sent out more than 250 résumés by his third year and went to almost as many interviews. He was no slacker. In fact, he graduated in the top 10 percent of his class in 1987. But just one look at him sent most recruiters scurrying. "I got one callback, just one," he laments.

There's one interview in particular that he remembers. It was with a law firm that he especially wanted to join. But as soon as he stepped into the room he noticed a couple of things. First, the chairs were too small for him to fit in. And then there were the glances that his two painfully thin interrogators exchanged. The encounter lasted no longer than ten minutes, but it was enough to break his heart. "I could tell when I walked through the door there was not a snowball's chance in hell I would get a job with that firm."

Eventually, Lindstrom did land a job at a San Diego law firm that no longer exists, Shernoff & Levine. There he was told by a junior partner that he would never be allowed to go in front of a jury because of his size, although sometime later the partner relented a bit. He suggested that Lindstrom might be able to litigate a case someday if he adopted "a William Howard Taft look," complete with suspenders, a pocket watch, and a bow tie. Lindstrom ignored the advice. He also never tried a case while he was there.

In 1990 Lindstrom found a position at another San Diego firm, Duckor Spradling & Metzger, where as a senior associate he worked on bad faith insurance and personal injury cases. It wasn't a bad job, he says. But by then he and his wife, Kelley Brown, were living in separate cities, which made his life miserable.

A tight job market made Brown, who is also a lawyer, leave Lindstrom behind in San Diego to take a job in Los Angeles, where she lived with her mother. "This was the most horrific time of our lives," Lindstrom says, who during this period was only able to see his wife on weekends, and in the process managed to gain even more weight. Finally, after about a year of this, Lindstrom quit Duckor Spradling and moved to Los Angeles, where he joined Quisenberry & Barbanel, an insurance defense firm. The move allowed him to reunite with his wife, where several months later they adopted Marissa, the little girl in the evocative photograph.

Parenting posed its own unique challenges to someone as large as Lindstrom. In fact, just the simple act of changing a diaper was something of a Houdini trick for Lindstrom because of how difficult it was for him to bend over.

Meanwhile, his career continued to languish. "I don't like the idea of working for insurance companies," he readily admits. "I'm a plaintiff-oriented guy." Still, it was around this time that he took the first small step toward reinventing himself by reading the fine print in his health insurance policy.

As it turned out, his plan covered bariatric procedures. These are surgeries that in one way or another reduce the size of the stomach and, sometimes, the length of the intestines to diminish appetite and the digestive system's tolerance for rich, fattening foods. A veteran of all sorts of diets, including fasting and eating nothing but grapefruit, Lindstrom had at various times managed to lose as much as 120 pounds, but he was never able to keep it off for very long. Privately, Lindstrom wasn't so sure that the surgery would work for him, either. But with Marissa in the picture, he decided to give it a try.

He wrote an assertive letter to Quisenberry & Barbanel's insurance company, which initially denied the request but then backed down about the coverage. The surgery was performed in June 1994. Now, some six years later, he is convinced it saved his life, though he hastens to add that the procedure is only a tool that can in no way substitute for good eating habits.

Soon after the operation, Lindstrom and his wife returned to San Diego, which they preferred for raising their child. His next job was with Lorber, Greenfield, Blick & Beddoe-a gig that lasted a little more than a year. "We reached a simultaneous parting of the ways," Lindstrom says with evident diplomacy. But, the truth is, he jumped ship right around the time the firm was thinking of laying him off because of a business slowdown.

This is when he decided, with the help of the severance package he received, to strike out on his own. He rented a tiny office in downtown San Diego. Then, with some second-hand office furniture he purchased at an auction, he opened his doors in March 1996.

In what is otherwise an unadorned office, Lindstrom keeps a collection of Don Quixote figurines on display, including the knight's faithful steed, Rocinante, and his sidekick Sancho Panza-which tells a story he can readily relate to."

The first couple of years were incredibly stressful," Lindstrom admits. "We were doing anything we could to pay the mortgage." But gradually, through speaking engagements and contacts with surgeons, he began to attract a handful of obesity cases. Then he put up a Web site (www.obesitylaw. com), which allowed him to get the word out to thousands of prospective clients. "I always wanted obesity work to be a major part of my focus, but I didn't necessarily think it would consume 100 percent of my time. The practice is definitely self-sustaining now," he says, "though, at least at this point, it's not making me rich."

Among his clients was Lenay Yorko, a 400-pound Indiana nurse who discovered Lindstrom on the Internet three years ago. She asked the attorney for help in dealing with her insurance company so that she could get the same surgical procedure that Lindstrom had. Lindstrom went to work on it and found an exception to the exclusion in Yorko's policy. But then they had problems finding a doctor to perform the surgery. In all, it took three months of haggling before Yorko was able to get what she was asking for. Her ordeal was detailed in the March 1999 issue of McCall's magazine; Lindstrom's first substantial shot of publicity. "He beat the hell out of my insurance company," says a thankful Yorko, who since the procedure has lost some 200 pounds.

Closer to home, Lindstrom has a booster in Orange County resident Dennis Robertson. A former marketing manager for a telecommunications company, Robertson says that Lindstrom helped him settle a lawsuit he filed against his employer when he was laid off. Robertson thinks he was let go not because the company wanted to cut costs but because he weighed 400 pounds. "They wanted all their executives to be five-foot-ten and 160 pounds," he laments. With Lindstrom's help, Robertson was able to enhance his severance package. Then, after the settlement, Lindstrom put pressure on Robertson's insurance company to pay for a bariatric procedure that, after twelve months, helped him get down to 240 pounds.

Today Lindstrom's obesity law center consists of himself, his wife (who joined the firm a few months ago), and an administrative assistant. From this modest base Lindstrom is positioning himself as a leading obesity activist. One of his latest projects is a national campaign that he's promoting called Pants Across America. The campaign is a "Fat Pride" version of the AIDS quilt, in which pants will be stitched together in an awesome display of collective girth. Lindstrom plans to contribute his own size-60 pair this month, when they will land in Memphis for a convention of surgeons who treat obesity.

"When you're a person of size," Lindstrom says, "it's a very public disability. People like us really have this problem of being seen in public with our loved ones, especially our kids."

Yet, for all his rhetoric, Lindstrom is something of a moderate when it comes to the so-called size-acceptance movement that seeks to advance the proposition that big is beautiful and that fat is not necessarily a health problem. Lindstrom, in contrast, believes that most obese people do need to lose weight for health reasons.

Lindstrom would like to see a law passed in Congress that recognizes the obese as a protected class of citizens. Failing that, he wants to see such recognition on a state-by-state basis." Obese people are not an expressly recognized, protected class except in the state of Michigan," he notes."So I spend a lot of time lobbying states to change their constitutions-as well as encouraging folks to bring ADA-related claims." Obesity and morbid obesity are generally protected under state and federal disability law, Lindstrom says. But in California, obesity-related employment discrimination and disability have to be fought on a case-by-case basis because of the contradictory patchwork of court rulings.

Obesity advocates, including Lindstrom, point to two cases as especially important legal markers weighing in their favor. In Cook v Rhode Island (1st Cir 1993) 10 F3d 17, 24, a federal appeals court ruled that obesity can be a disability, even though it is popularly believed that obesity is a voluntary condition. And in Cassista v Community Foods Inc. (1993) 5 C4th 1050, 1060, the California Supreme Court said that being overweight could be a disability or handicap under the Fair Employment and Housing Act (Govt C §§12900 et seq.) if there was evidence it was an actual or perceived physiological disorder affecting a major bodily system and substantially limiting a major life activity.

But does the country really need yet another class of protected citizens? Lindstrom bristles at the question, if only because it raises the specter of a slippery slope. "I hear the slippery slope argument all the time," he says. "It boils down to: 'If I protect you, who's going to be next?' I don't know the answer to that because I don't necessarily have an interest in worrying about who's next. Is it blue-eyed people? Well, you know what? I haven't seen anyone who's been denied a job because of their blue eyes."

Clearly, there's a pragmatic side to Lindstrom's approach. Seldom, for example, does he file a suit, preferring to negotiate behind the scenes. One reason, he says, is that filing a suit often costs more than what the client is after, like a bariatric procedure, which runs anywhere from $18,000 to about $35,000. He also tries to be something of a diplomat, and in the process has won the admiration of some of his opponents.

Alan Bloom, for one, is a Los Angeles-based general counsel at Maxicare Health Plans, a health maintenance organization. "Whenever somebody has a problem with us, I want a chance to talk to them," Bloom says. "But I want to talk to somebody who's rational. Walt Lindstrom is rational. When he has a problem with us, he writes us a letter. He doesn't go to the newspapers, he doesn't sue us. A man like him makes my life much more pleasant."

Of all the people Lindstrom represents, the most vulnerable, he believes, are women. "It is a horrible thing to be a woman of size in this country," he asserts, adding that the cruelest jokes of all are leveled against them. "Some people think it's within their right to walk up to an obese woman and say, 'You've got such a pretty face, if you weren't such a fat pig.' Which is what someone once told a client of mine."

Four years into his venture Lindstrom hasn't changed the world. But his unflagging devotion is undeniable. "I wake up every morning getting the opportunity to help save someone's life," he says. "Hardly anyone in the legal business has that opportunity."

Garry Abrams is a columnist for the Los Angeles Daily Journal.

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