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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02680-RBJ-KLM

JOHN DOE,

Plaintiff,

v.

MERCK & CO., INC., and

MERCK SHARP & DOHME CORP.,

Defendants.

_____________________________________________________________________

ORDER

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Plaintiff’s Motion to Proceed Anonymously, and

Brief in Support Thereof [Docket No. 2; Filed October 14, 2011] (the “Motion to Proceed”)

and Defendants’ Motion to Dismiss [Docket No. 9; Filed November 28, 2011] (the “Motion

to Dismiss”). On November 28, 2011, Defendants filed a Response to the Motion to

Proceed [#9]. On December 1, 2011, Plaintiff filed a Reply to the Motion to Proceed [#12].

The Motion to Proceed is thus ripe for review. For the reasons stated below, the Court

DENIES Plaintiff’s Motion to Proceed [#2] and DENIES without prejudice Defendants’

Motion to Dismiss [#9].

Plaintiff is a Colorado resident who brings, in short, a products liability action against

Defendants. See Compl. [#1] at 1, 11-27. Defendants are two related global

pharmaceutical companies in the business of “advertising, soliciting, promoting and

distributing prescription drugs.” Id. at 1-2. One of these drugs, Propecia, is marketed and

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prescribed for the treatment of male pattern baldness. See id. Plaintiff alleges that he

suffered numerous severe side effects, primarily of a sexual nature, from the use of

Propecia. See id. at 10-11. Among his alleged injuries are permanent “erectile

dysfunction, decreased libido, loss of sexual sensation, decreased semen output, testicular

pain,” depression, and anxiety. Id.

Through his counsel, Plaintiff requests permission to proceed anonymously in this

lawsuit. See id. at 1; see also Motion to Proceed [#2]. He asserts that the nature and

details of his injuries are “of the utmost and highly sensitive, intimate and personal nature

as they center on issues of a highly sexual nature.” Motion to Proceed [#2] at 2. Due to

the nature of the alleged injuries, Plaintiff seeks leave to proceed anonymously to preserve

his privacy. See id. He avers that there is no public interest requiring him to publicize his

name. See id. at 3. However, Plaintiff agrees to provide his name and all required

information, such as medical records, to Defendants. See id.

“Proceeding under a pseudonym in federal court is, by all accounts, ‘an unusual

procedure.’” Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000) (citing M.M. v.

Zavaras, 139 F.3d 798, 800 (10th Cir. 1998)). Whether a plaintiff may proceed

anonymously is subject to the discretion of the trial court. See M.M., 139 F.3d at 799

(review of a district court decision denying leave to proceed under a pseudonym pursuant

to the abuse of discretion standard). The Federal Rules of Civil Procedure do not

contemplate the anonymity of parties. Id. at 802. To the contrary, Rule 10(a) requires that

the complaint “name all the parties,” and Rule 17(a) prescribes that an action be

prosecuted “in the name of the real party in interest.” However, federal courts have granted

permission to plaintiffs to proceed anonymously under certain limited circumstances. 

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The Tenth Circuit historically has looked to the Eleventh Circuit’s jurisprudence

regarding whether a plaintiff should be allowed to proceed anonymously. See Femedeer,

227 F.3d at 1246 (citing Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992)); M.M., 139 F.3d

at 802-03 (same). The Eleventh Circuit enumerated three contexts in which a pseudonym

is appropriate: 1) “matters of a highly sensitive and personal nature;” 2) cases involving a

“real danger of physical harm;” and 3) instances “where the injury litigated against would

be incurred as a result of the disclosure of the plaintiff’s identity.” Id. Moreover, the Court

must “weigh the public interest in determining whether some form of anonymity is

warranted.” Femedeer, 227 F.3d at 1246 (citing M.M., 139 F.3d at 802-03).

Plaintiff heavily relies on Plaintiff B v. Francis, 631 F.3d 1310, 1316 (11th Cir. 2011),

to support his assertion that his allegations constitute “matters of a highly sensitive and

personal nature.” See Reply [#12] at 2-3. Defendants agree that Plaintiff’s alleged injuries

are of a sexual nature and may be “personal, sensitive, [and] intimate.” See Response [#9]

at 2, 5. Thus, Plaintiff has demonstrated that use of a pseudonym may be appropriate in

this matter. See Femedeer, 227 F.3d at 1246.

However, Defendants argue that Plaintiff’s allegations are “wholly insufficient to

overcome the presumption of ‘open court proceedings, and the public’s concomitant

interest in knowing the identity of litigants.’” Id. (quoting Motion to Proceed [#2] at 1).

Accordingly, the Court “weigh[s] the public interest in determining whether some form of

anonymity is warranted.” Femedeer, 227 F.3d at 1246 (citing M.M., 139 F.3d at 802-03).

In order to do this, the Court examines all of the circumstances in the case to balance the

interest of Plaintiff in proceeding anonymously against the interest of Defendants in

proceeding against a publicly-identified individual. Some of the factors a court may

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consider in analyzing all of the circumstances of a given case include whether the plaintiff

is a minor, whether he was or is likely to be threatened with physical harm by proceeding

in his own name, and whether proceeding anonymously creates “a unique threat of

fundamental unfairness to the defendant.” Plaintiff B, 631 F.3d at 1316. The Court must

“take into account the actual allegations made” by Plaintiff and “adequately consider . . .

the scope of harm [he] face[s] if [he] were forced to reveal [his] identit[y].” Id.

Plaintiff has cited no federal or state court decisions in which a plaintiff alleging

injuries from the side effects of a drug has been permitted to proceed anonymously.

Plaintiff asserts that the circumstances of this case are enough, however, to allow him to

proceed as a “John Doe,” based on such factors as: (1) “no prejudice or harm will come to

Defendant[s] from Plaintiff’s use of the pseudonym;” (2) “Plaintiff seeks no advantage by

proceeding anonymously;” (3) forcing “Plaintiff to reveal his name would have a chilling

effect on Plaintiff and other future plaintiffs’ willingness to bring cases that involve sexual

and mental injuries and would only serve to harm the public interest in having such cases

brought to trial;” (4) Plaintiff’s reason for using Propecia “had nothing whatsoever to do with

sexual function;” and (5) forcing Plaintiff “to reveal his name serves no public interest.”

Reply [#12] at 3-5.

Defendants provide one unpublished state-court opinion in which a plaintiff alleging

injuries from the side effects of a drug was denied permission to proceed anonymously.

See Z.M. v. Merck Sharp & Dohme Corp., ATL-L-9169-11 (N.J. Super. Ct. Feb. 2, 2012)

(unpublished) (provided by Defendants at #17-1). The circumstances underlying the Z.M.

decision make the case directly on point, as they involve the plaintiffs’ request to proceed

anonymously due to alleged sexual dysfunction related to their use of Propecia. After

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distinguishing the cases provided by the plaintiffs, the court denied the request, stating:

It is well established that lawsuits are public events. The risk that a plaintiff

may suffer some embarrassment is simply not enough to overcome the

constitutional presumption in favor of open court proceedings. This case and

the alleged injuries do not present such an unusual situation in which the

need for anonymity outweighs the presumption of openness.

Memorandum of Decision on Motion [#17-1] at 3.

In addition, Defendants cite to a number of factors in support of their assertion that

Plaintiff should not be permitted to proceed anonymously, including: (1) “[t]he people have

a right to know who is using their courts” (quoting Luckett v. Baudet, 21 F. Supp. 2d 1029

(D. Minn. 1998) (citing Doe v. Blue Cross & Blue Shield United of Wis., 112 F. 3d 869, 872

(7th Cir. 1997)); (2) Plaintiff voluntarily chose to bring his private life into the public eye

(citing Doe v. FBI, 218 F.R.D. 256, 259 (D. Colo. 2003)); and (3) Plaintiff is asking

Defendants “to defend [themselves] publicly, while Plaintiff is permitted to hurl his

accusations ‘from behind a cloak of anonymity;’” (quoting Rose v. Beaumont Indep. Sch.

Dist., 240 F.R.D. 264, 267 (E.D. Tex. 2007)). Response [#9] at 3-5.

Here, the Court conducts the same balancing test contemplated by Femedeer. 227

F.3d at 1246 (citing M.M., 139 F.3d at 802-03). First, the Court agrees with the Z.M. court’s

determination that the fact that Plaintiff “may suffer some embarrassment” is not enough

to justify anonymity. See Memorandum of Decision on Motion [#17-1] at 3; see also

Plaintiff B, 631 F.3d at 1316 (stating that “courts have often denied the protection of

anonymity in cases where plaintiffs allege sexual assault, even when revealing the

plaintiff’s identity may cause her to ‘suffer some personal embarrassment’”). Plaintiff’s

assertion that “no prejudice or harm will come to Defendant[s] from Plaintiff’s use of the

pseudonym” is undercut by Defendants’ observation that they must defend themselves

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“publicly, while Plaintiff is permitted to hurl his accusations ‘from behind a cloak of

anonymity.’” Response [#9] at 4 (citation omitted). Further, while they may attest to

Plaintiff’s good faith in making his request to proceed anonymously, Plaintiff’s second and

fourth arguments in support of anonymity (“Plaintiff seeks no advantage by proceeding

anonymously;” Plaintiff’s reason for using Propecia “had nothing whatsoever to do with

sexual function”) do not provide relevant points of consideration in determining whether

Plaintiff should be permitted to proceed anonymously. Plaintiff’s third argument (forcing

“Plaintiff to reveal his name would have a chilling effect on Plaintiff and other future

plaintiffs’ willingness to bring cases that involve sexual and mental injuries and would only

serve to harm the public interest in having such cases brought to trial”) is belied by the fact

that “[a]pproximately one-hundred Plaintiffs have come forward to file cases that have

similar injuries and allegations.” Response [#9] at 7 (citing Defendants’ Notice of “Related”

Cases [#10]). Finally, Plaintiff’s fifth argument (forcing Plaintiff “to reveal his name serves

no public interest”) is plainly incorrect based on Tenth Circuit precedent. As explained in

Femedeer, “the public has an important interest in access to legal proceedings.” 227 F.3d

at 1246. The Court finds that the considerations provided by Plaintiff, even cumulatively,

do not outweigh the public interest in open access to the courts.

“Ordinarily, those using the courts must be prepared to accept the public scrutiny

that is an inherent part of public trials.” Id. In sum, although Plaintiff alleges various severe

physical side effects of a personal and private nature from his use of Propecia, Plaintiff

proffers no extraordinary circumstance that would justify his use of a pseudonym as he

pursues this civil action. The public interest is strong and outweighs Plaintiff’s interest in

proceeding anonymously. Accordingly,

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IT IS HEREBY ORDERED that the Motion to Proceed [#2] is DENIED. Plaintiff shall

file a sworn affidavit under seal revealing his true identity and a contemporaneous motion

to seal, on or before March 2, 2012. If he pursues the prosecution of this lawsuit, the

caption shall bear his correct name, unless the motion to seal is granted or the District

Court sustains any objection to this Order.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss [#9], which was

combined with its Response to Plaintiff’s Motion to Proceed, is DENIED without prejudice

for failure to comply with D.C.COLO.LCivR 7.1C, which states that, “A motion shall not be

included in a response or reply to the original motion. A motion shall be made in a separate

paper.”

Dated and entered at Denver, Colorado, this 17th day of February, 2012.

 

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