Rogers’s assessment echoed Merck’s position. “Premature hair loss itself, the very condition for which Propecia is prescribed, is associated with low self-esteem, poor body image, and depression,” Merck’s lawyers wrote in a 2017 court filing. “Rather than attribute their sexual difficulties to the common reasons why young men with premature hair loss experience these problems, Plaintiffs instead assign blame to a drug that, once discontinued, is no longer pharmacologically active in the body.”
Sales of Propecia climbed steadily through the 2000s, peaking at $447 million in 2010. Soon after, Merck’s patent expired, but use of finasteride remained strong as cheaper generic versions hit the market.
By then, hundreds of men were suing Merck over Propecia. In 2012, their lawsuits were consolidated before Judge Cogan.
As part of the discovery process, the early phase of litigation when opposing sides request information from each other, the court issued a routine protective order, allowing each side to designate discovery material as confidential before sharing it. The plaintiffs then filed a small handful of those documents in court under seal, citing the protective order as justification for the secrecy.
Once evidence hits the courthouse, however, appellate courts have ruled that judges are required to conduct their own analysis of whether the secrecy outweighs the public interest in transparency. Cogan never did so.