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From the Vault — The Hersh Health Plan

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From the Vault — The Hersh Health Plan

When Nancy Hersh was young, her lawyer father encouraged her to become whatever she wanted. For her, that meant following in his footsteps and eventually teaming up with him while becoming a force in a relatively untouched area of law: medical malpractice involving women’s healthcare.

As one of 20 women in a class of 220 at the Berkeley Law, Hersh grew familiar with the lack of space for women in and out of the courtroom. She also grew familiar with creating that space. She was one of the first woman trial attorneys and the first woman president of the San Francisco Trial Lawyers Association.

Hersh was featured in the 2006 issue of Northern California Super Lawyers. Here’s an excerpt describing two of her career’s groundbreaking cases:

From the Vault — The Hersh Health Plan 1As Hersh’s interest in women’s health care developed, so did her intuition for spotting trouble. In the late 1970s, a young woman with health problems in her reproductive system dropped by Hersh’s office. After investigating the woman’s medical records, Hersh transformed that encounter into a landmark case. She established that the drug DES, prescribed to prevent miscarriages and taken by this woman’s mother, caused a rare type of vaginal cancer and other reproductive problems in the daughters of the women who used it. With the help of her father, Hersh came to represent most DES daughters in Northern California. They took on drug manufacturers Eli Lilly and Abbott Drugs and others, winning millions of dollars in compensation for the women affected by the drug.

The DES experience was an eye-opener for her in both content and procedure. “I saw how drug manufacturers don’t adequately pretest their products made for women and they don’t warn women about problems they know exist.” Even after women are injured by a product, Hersh says, “the drug companies say there’s no proof of causation. Meanwhile, they’re sitting on the documents that prove them wrong.”

After the DES victories, Hersh was well equipped to take on the drug manufacturing giant Dow Corning. In 1982, she represented a woman named Maria Stern who had problems caused by leakage from ruptured breast implants. It was a time when silicone breast implant cases were fairly rare and not very lucrative. A rupture case would settle for, at most, $20,000. Perhaps that’s why Dow Corning was unconcerned when Hersh filed Stern v. Dow Corning Corp. But after Hersh and her team discovered some disturbing results from pre-market implant tests in Dow Corning’s archives, the company was forced to take notice. In 1984, a jury awarded Stern $211,000 in compensatory damages and $1.5 million in punitives. That amount can’t compete with the millions won in later breast implant cases, but at the time it was an enormous increase from earlier awards. Dow Corning appealed the decision to the Ninth Circuit but ultimately decided to settle rather than risk the appellate court’s decision.

While Hersh supported her decision to accept the settlement, it meant all parties involved had to sign nondisclosure pledges. For Hersh, sealing the information from that case was something she “hated more than anything.” Hersh resigned herself to silence — no easy feat considering the FDA took almost a decade to release the so-called “new information” and declare a moratorium on silicone breast implants.

Hersh continues to work on cases related to women’s healthcare today. Read more about her fight to protect women’s health here, and check out the most recent issue of Northern California Super Lawyers here.

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