## Facts

- Schering sold Claritin, an antihistamine supported by clinical studies indicating no greater sedation than placebo.
- Pfizer, marketing Zyrtec for UCB, promoted a competing antihistamine; clinical testing indicated Zyrtec caused roughly twice as much sedation as Claritin or placebo.
- In prior Lanham Act litigation, the parties settled, and Pfizer agreed its representatives would not describe Zyrtec as “low sedating” or “nonsedating,” or imply it caused no sedation.
- About two years later, Schering alleged Pfizer’s detailing practices again conveyed an implied message that Zyrtec was nonsedating or comparable to Claritin regarding sedation, breaching the settlement and violating the Lanham Act.
- To show implied falsity, Schering relied primarily on five physician surveys asking doctors to recall sales-call communications and/or state their impressions of Zyrtec’s sedative properties after Pfizer’s detailing.
- One survey indicated a meaningful subset of physicians formed the impression that Zyrtec caused no sedation.
- The district court excluded all five surveys as hearsay and denied Schering’s motion for a preliminary injunction for lack of sufficient evidence.

## Issues

1. Whether physician surveys eliciting respondents’ impressions after marketing contacts are admissible over hearsay objections, including under Federal Rule of Evidence 803(3) (then-existing state of mind) or other exceptions, when offered to show implied falsity in advertising.
2. Whether surveys commissioned by the defendant may be admissible as non-hearsay admissions of a party-opponent under Federal Rule of Evidence 801(d)(2).
3. Whether the preliminary-injunction denial had to be vacated because it rested on a categorical exclusion of survey evidence without assessing admissibility under the Rules of Evidence and the surveys’ reliability.

## Decision

- The Second Circuit vacated the order denying a preliminary injunction and remanded.
- The court held the district court erred by applying a blanket rule treating “memory surveys” as inadmissible hearsay.
- At least two surveys should have been admitted under Rule 803(3) to show physicians’ then-existing impressions created by Pfizer’s marketing, for the limited purpose of proving a pattern of implied falsehood (not to prove the clinical truth about sedation).
- The court stated that methodological criticisms typically affect weight, not admissibility, when surveys are grounded in accepted scientific principles.
- The court indicated Pfizer-commissioned surveys could also be admissible as party-opponent admissions under Rule 801(d)(2).
- Because the excluded surveys were central to Schering’s showing at the preliminary-injunction stage, the denial could not stand.

## Legal Principles

- Scientifically designed survey responses reflecting respondents’ then-existing beliefs or impressions may be admissible under Rule 803(3) to prove consumer (or physician) perception, when perception is the relevant fact in dispute.
- Survey evidence offered to show how an audience interpreted promotional messages is admissible for that limited purpose and is not required to prove the objective truth of the product claim.
- Courts should not categorically exclude survey evidence as hearsay; admissibility must be analyzed under the Federal Rules of Evidence and, where applicable, reliability standards governing expert or scientific evidence.
- Defects in survey design (e.g., sampling, wording, recall period) generally go to weight rather than admissibility if the survey is methodologically grounded.
- Surveys commissioned or adopted by a litigant may qualify as non-hearsay admissions under Rule 801(d)(2) when offered against that litigant.

## Conclusion

The Second Circuit required the district court to reconsider preliminary injunctive relief after admitting (at minimum) surveys reflecting physicians’ current impressions under Rule 803(3) and after evaluating other surveys under ordinary evidentiary principles rather than excluding them by categorical hearsay rules.


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