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# 3rd Circuit Fosamax Decision Affecting Other Cases: Attorney
- URL: https://www.fdaweb.com/3rd-circuit-fosamax-decision-affecting-other-cases-attorney/
- Published: 2019-03-07T12:00:00.000Z
- Updated: 2026-09-15T01:10:42.000Z
- Author: David McFarland
- Tags: Drugs, #legacy-id-D5143555

Attorney **Eric Alexander** (Reed Smith) says that until the Supreme Court decides the *Fosamax* decision from a New Jersey federal court that were overturned by the 3rd Circuit Court of Appeals, other jurisdictions will continue to look at the same types of questions. In an online blog [post](https://www.lexology.com/library/detail.aspx?g=6441c9bf-8c77-41f2-b4da-419523c8e3bc&ref=fdaweb.com), Alexander says the appeals court held that summary judgment could not be granted for defendants under a *Levine* analysis because juries have to decide whether there is “clear evidence” that FDA would not have approved a label warning sought by plaintiffs.

Alexander cites an Illinois federal court case involving Merck that asked on appeal if the question of whether a defendant company has presented the necessary clear evidence is to be resolved by the court or by a jury.