Schering Corp. v. Pfizer, Inc.

Schering Corporation (Schering) (plaintiff) had an antihistamine product, Claritin, that clinical tests showed did not cause any more sedation, i.e., sleepiness, than a placebo. Pfizer, Inc. (Pfizer) (defendant) helped market and distribute a competing antihistamine, Zyrtec. Clinical tests showed that Zyrtec caused twice as much sedation as either Claritin or a placebo. Schering sued Pfizer, claiming that Pfizer’s sales representatives were making false or misleading statements that Zyrtec caused low or no sedation. This lawsuit was settled, with Pfizer agreeing that its sales representatives would not expressly claim that Zyrtec caused low or no sedation, nor would they imply that it caused no sedation. Two years later, Schering sued Pfizer again, claiming that Pfizer had breached the settlement agreement and violated a federal false-advertising law. Pfizer hired two marketing companies to survey doctors about the doctors’ impressions after meeting with Pfizer sales representatives. Schering hired one of the same companies for its own survey. This survey showed that Pfizer’s sales communications left 16 percent of doctors with the impression that Zyrtec did not cause any sedation. Schering moved for a preliminary injunction and tried to introduce Pfizer’s and Schering’s surveys as evidence at the hearing. The trial court ruled that the surveys were inadmissible hearsay and irrelevant and denied Schering’s request for a preliminary injunction. Schering appealed that denial.