Nancy Hersh has a stylishly messy mop of curly hair and the confident walk of a woman who pushes the boundaries of the times. She arrives at the offices of Hersh & Hersh, the practice she started with her father more than 30 years ago, full of wry remarks about the day’s headlines. This morning, she’s fired up about the nomination of Judge Alito to the Supreme Court. “Well, everybody, we’re back down to just one woman,” she declares as she walks through the lobby. Her toy poodle trails behind her, its little legs doing their best to keep up with Hersh’s nononsense stride.
As someone who knows how the role of women in the legal profession has evolved over the past three decades, Hersh is concerned about the gender makeup of the Supreme Court. Over the course of her career, Hersh has broken ground as the first female president of the San Francisco Trial Lawyers Association and as one of the first women admitted to the American Board of Trial Advocates (ABOTA). But she’s best known for finding a niche within the traditionally male-dominated areas of pharmaceutical and medical device mass tort litigation, personal injury and products liability. Treading into previously unexplored territory — medical injury specifically affecting women — she’s worked to unearth the injurious effects of the drug diethylstilbestrol (DES), the dangers of silicone breast implants and the damage done by the diet drug fenphen, each of which led to cases that created an enormous wave of mass torts.
Hersh is accustomed to being ahead of her time. When she graduated from Berkeley’s Boalt Hall School of Law in 1970, she was one of only 20 women in a class of 220 — the largest number of female students the school had ever seen (today the typical gender makeup at Boalt is more than 50 percent female — last year’s entering class of 264 had 153 women). As a student, she remembers law professors telling her that she was taking away space that could be better used by a man. “The way they explained it,” she recalls, “is that a woman would practice for a year and then quit to get married and have children.”
Raised in a family that encouraged her to pursue her career, Hersh was undeterred by societal norms. Her father, LeRoy Hersh, challenged his daughters to lively debates at the family dinner table and encouraged them to become whatever they wanted. At the same time, when Hersh graduated from law school, her father required that she practice on her own for a few years before they could join forces to what would become the successful father-daughter team of Hersh & Hersh.
In the first years of her practice, Hersh was confronted with the same kind of sexism she experienced in law school. “I had one case where the judge kept calling me ‘ma’am’ during trial,” she recalls. Hersh confronted the judge about it in chambers explaining it wasn’t fair to her clients that he used the term in front of the jury. When he asked for an alternative, Hersh stated the obvious: “How about ‘counsel’ like the other lawyers?”
Hersh found that the unfair treatment she experienced early in her career mirrored the gender biases in medical malpractice cases involving women. In the early ’70s, one of the first cases of Hersh’s career involved a woman who was wrongly admitted to a mental hospital after ongoing complaints of fatigue, anxiety and weight loss. Doctors attributed her symptoms to the neurosis of an unhappy woman, Hersh says, leaving the eventual diagnosis of cancer, from her psychiatrist, to come absurdly and fatally late.
As 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.
Even with so many important cases under her belt, Hersh’s battle for women’s health continues. As the mother of three daughters, she says, “Women’s health issues excite me not only legally, but personally. I don’t want to see my daughters get hurt.”
But Hersh sees plenty of hope. Her middle daughter is planning to go to law school, and may someday be practicing beside her mother. When asked about the area of law her daughter is interested in, Hersh responds proudly: “She’s doing her undergraduate thesis on the development of DES and how it reflected societal norms and values of the time.” It looks as if another generation of the Hersh family will be protecting the health of women.
The Future of Women’s Health Law
While the medical product and pharmaceutical industry continues to boom, Hersh feels her ability to keep a watchful eye on the major manufacturers is diminishing. “The FDA has inserted into its own rules that its approval pre-empts state court action,” she explains, “and if we can’t get these cases past the summary judgment stage, what can we attorneys do for anybody? Nothing.”
She says the biggest problem these days is a political rather than a scientific one. The challenge ahead, Hersh says, is to prevent the FDA from insulating the pharmaceutical companies from accountability for their defective and substantially injurious products. “The FDA approves products based upon the representation of the manufacturer — they approved fenphen, DES and all these things that have caused people harm. And they’ll continue, but with no accountability, and nobody like us to get the product off the market when it causes injury.”