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

This appeal invites us to revisit an increasingly important issue in the law of evidence, and one that has confused many courts. Today we clarify the circumstances under which scientifically conducted surveys may be admitted into evidence over a hearsay objection. We hold that two of the surveys in this case, which polled physicians' impressions of the communications at issue, should have been admitted under the present state of mind exception to the hearsay rule, see Fed. R. Evid. 803(3), for the limited purpose of establishing a pattern of implied falsehood. We also find that in determining whether to admit the five surveys to establish literal falsehoods under the residual hearsay rule, see Fed. R. Evid. 807, the district court relied on an erroneous per se rule against memory surveys offered to prove the facts remembered. The court thereby abused its discretion, and we remand to the court to determine the surveys' trustworthiness on the basis of their methodological strengths and their relative susceptibilities to the risks of faulty memory and perception. In the first half of this century, surveys were generally regarded as inherently untrustworthy because they contained hearsay, or out-of-court statements offered to prove the truth of the matters asserted. See, e.g., Dupont Cellophane Co. v. Waxed Prods., 6 F. Supp. 859, 884 (E.D.N.Y. 1934), modified, 85 F.2d 75 (2d Cir. 1938) (refusing to admit survey because court could not "see how plaintiff could even test the facts, as it had no opportunity for cross-examination of those who were supposed to have answered the questions"); ... [After reviewing the history of why surveys were often excluded the court examined the two bases for admitting surveys into evidence.] One of the two most common bases for admitting survey evidence is Rule 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. In particular, Rule 803(3) excepts any statement of [a] declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. Fed. R. Evid. 803(3). The great majority of surveys admitted in this Circuit, ... fall into this category: they poll individuals about their presently existing states of mind to establish facts about the group's mental impressions. See, e.g., Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 741-42 (2d Cir. 1994) (polling consumers for their then-existing perceptions to establish actual confusion); Mobil Oil Corp., 818 F.2d at 259 (same); Harlequin Enters. Ltd. v. Gulf & Western Corp., 644 F.2d 946, 949-50 (2d Cir. 1981) (polling consumers for their then-existing states of mind to establish secondary meaning, or tendencies to associate certain product features with a particular corporate origin). It is important for district courts to recognize surveys of this type because their qualification for a traditional hearsay exception obviates the need to examine methodology before overruling a hearsay. [Plaintiff] has, however, cited a second common basis for admitting the survey for this purpose: the residual hearsay rule. This rule, presently codified at Rule 807 of the Federal Rules of Evidence, states that: A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. Fed. R. Evid. 807 ... "To be admissible under this exception, 'the evidence must[, in other words,] fulfill five requirements: trustworthiness, materiality, probative importance, the interests of justice, and notice.'" United States v. Harwood, 998 F.2d 91, 98 (2d Cir. 1993) (quoting Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991) (citations omitted)). ... [C] lose examination of the function of the hearsay rule will illuminate the criterion of trustworthiness that the district court should have employed. The hearsay rule is generally said to exclude out-of-court statements offered for the truth of the matter asserted because there are four classes of risk peculiar to this kind of evidence: those of (1) insincerity, (2) faulty perception, (3) faulty memory and (4) faulty narration, each of which decreases the reliability of the inference from the statement made to the conclusion for which it is offered. [Citations omitted]. The hearsay rule ordinarily prohibits the admission of out-of-court statements by declarants on the theory that cross-examination can help test for these four classes of error, thus allowing the fact-finder to weigh the evidence properly and to discount any that is too unreliable. The traditional exceptions to the hearsay rule, in turn, provide the benchmark against which the trustworthiness of evidence must be compared in a residual hearsay analysis. See Fed. R. Evid. 807 (allowing for admission of hearsay statements not specifically covered by Rules 803 or 804 but having, among other things, "equivalent circumstantial guarantees of trustworthiness"). It is thus important to recognize that the trustworthiness of these exceptions is a function of their ability to minimize some of the four classic hearsay dangers. See generally Laurence H. Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 961 (1974) ("The traditional hearsay exceptions can usefully be clustered into ... groups, based on the different ways in which the members of each group overcome the [four] potential infirmities [generally associated with hearsay]."). Statements based on present sense impressions, for example, do not suffer from the risk of faulty memory because they are made at or near the time of impression. These statements also express knowledge based on direct sensory perception. The Federal Rules of Evidence thus make an exception to the hearsay rule for "statement[s] describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Fed. R. Evid. 803(1).

Similarly, statements falling under Rule 803(3)'s exception for presently existing states of mind rarely suffer from the risks of faulty memory because they are made when the declarant is in the relevant state, and they bear minimal risk of faulty perception because speakers generally know their own states of mind. See Tribe, 87 Harv. L. Rev. at 965 ("The closeness in time of statement to perception reduces memory problems to the de minimis level, and for a number of reasons, including the fact that what one perceives as his physical or mental sensations are his sensations, there is ordinarily no possibility of erroneous perception."). Although both of these kinds of statement can suffer from the remaining risks of insincerity and faulty narration, exceptions to the hearsay rule are made for them on "the theory that ... [the statements] possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available." Fed. R. Evid. 803 advisory committee's note. It follows that a hearsay statement need not be free from all four categories of risk to be admitted under Rule 807. Courts deciding whether evidence is sufficiently trustworthy to be admitted under the residual hearsay rule should therefore be aware of these facts and of the relative degree to which the evidence offered is prone to risks like those under discussion. Survey evidence, for example, is susceptible not only to all four classic hearsay dangers but also to an additional class of risk arising from the fact that parties usually offer surveys to support statistical inferences. These inferences can be subject to methodological error and can sometimes be manipulated through artful data collection or presentation. Proper survey methodology can, however, help ensure the reliability of the statistical inferences for which a survey is offered. Proper survey methodology can also help reduce two of the four classic hearsay dangers. In particular, the risk of insincerity can ordinarily be reduced if the interviewers and those questioned lack knowledge of the litigation and the purpose of the survey. See Zippo, 216 F. Supp. at 684 ("[The] danger [of insincerity] is minimized by the circumstances of [a] public opinion poll in which scientific sampling is employed, because members of the public who are asked questions about things in which they have no interest have no reason to falsify their feelings."). Similarly, surveyors can reduce the risk of faulty narration by framing questions in a clear, precise and non-leading manner. See id. ("[O]ther survey techniques substantially insure trustworthiness in other respects. If questions are unfairly worded to suggest answers favorable to the party sponsoring the survey, the element of trustworthiness in the poll would be lacking. The same result would follow if the interviewers asked fair questions in a leading manner."). The only risks that proper survey methodology does not tend to mitigate are those of faulty memory and perception. Still, a particular memory survey, which, for example, relates to events that were learned by direct perception and are unlikely to be forgotten, can, if properly conducted, minimize all five of the classes of risks ordinarily associated with survey evidence. See generally, e.g., Debra P., 730 F.2d at 1405; Pittsburgh Press, 579 F.2d at 751. Memory surveys can thus, in principle, have even greater circumstantial guarantees of trustworthiness than many of the traditional exceptions to the hearsay rule. Because the residual hearsay rule requires an initial trustworthiness determination before it will allow for the admission of evidence, all of these considerations, including those of methodology, will affect not only the weight but also the admissibility of surveys offered in the present circumstances, i.e., when none of the other traditional hearsay exceptions apply.

For the foregoing reasons, we vacate the district court's rulings excluding the five surveys in this case.

Questions for Discussion

1.What were the exceptions to the hearsay rule that the court used? 2.Why does the court say that in some instances it is not necessary to examine the trustworthiness of the surveys before overruling a hearsay objection? 3.Why, according to the court, is trustworthiness a consideration under Rule 807?

REFERENCE: FUNDAMENTALS OF CIVIL LITIGATION(BOOK) MAEROWITZ