through reasonable efforts.” Fed.R.Evid. 807(B). In this case, Schering introduced its five surveys, which polled a total of approximately 1166 physicians, to establish statistical facts about what Zyrtec representatives were saying to a much larger group of almost 250,000 physicians nationwide. These facts were relevant to establish the type of irreparable injury necessary for a preliminary injunction. See, e.g., Indianapolis Colts, 34 F.3d at 416; Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907-09 (2d Cir.1990). The reliability of this statistical inference was therefore critical to Schering’s case. As the district court noted, it would, moreover, be unreasonable to hale all 1166 physicians into court to establish this kind of inference. Schering, 1999 WL 144921, at *5 (<HOLDING>). Rule 807(B)’s so-called “necessity” criterion
holding that when a constitutional right is vested in a party and there is a doubt as to whether that right has been waived the doubt should be resolved in the defendants favor holding that this number is without doubt too large a number to bring into court recognizing this rule holding potential prejudice caused by equating reasonable doubt with a substantial doubt mitigated by providing an alternate definition of reasonable doubt as a doubt that would cause a reasonable person to hesitate to act holding appeal from an order dismissing action without prejudice was properly before this court