Schering Corp. v. Pfizer Inc. - 189 F.3d 218 (2d Cir. 1999)

Rule:

One of the two most common bases for admitting survey evidence is Fed. R. Evid. 803(3), which creates an exception to the hearsay rule for statements that express a declarant's state of mind at the time of the utterance. 

Facts:

A motion for a preliminary injunction made by plaintiff-appellant Schering Corporation ("Schering") against defendants-appellees Pfizer Inc. ("Pfizer") and UCB Pharma, Inc. ("UCB") was denied. The primary evidence Schering offered in support of its motion were the results of five surveys in which physicians were asked to relate their memories, and sometimes their impressions, of communications that defendants' sales representatives had made in the course of their promotional campaigns. Schering offered these surveys to support the more general proposition that defendants' representatives were engaging in widespread false promotional activity in violation of both the Lanham Trade-Mark Act, 15 U.S.C. § 1051 et seq.  (1994) (the "Lanham Act"), and a settlement agreement between the parties. The district court excluded all five surveys on hearsay grounds and then ruled that there was insufficient evidence to support a preliminary injunction.

Issue:

Did the district court err in excluding all five surveys on hearsay grounds?

Answer:

Yes.

Conclusion:

The court held that two of the surveys, which polled physicians' impressions of the communications at issue, should have been admitted under the present state of mind exception to the hearsay rule, Fed. R. Evid. 803(3), for the limited purpose of establishing a pattern of implied falsehood. The court remanded to determine the surveys' trustworthiness on the basis of their methodological strengths and relative susceptibilities to the risks of faulty memory and perception under Fed. R. Evid. 807.