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Late last year, the Third Circuit Court of Appeals, in In re Avandia Mktg., Sales & Prods. Liab. Litig., became one of the first circuit courts in the country to tackle the thorny issue of preemption following the U.S. Supreme Court’s “clarifying” language in Merck. In doing so, the court reversed a district court’s ruling in favor of preemption and revived 10-year old claims made by two health-care plans against GlaxoSmithKline (GSK) over its marketing of the diabetes drug Avandia. The decision is important for its interpretation of the high court’s recent guidance for what constitutes “clear evidence” in cases of alleged preemption and for its persuasive authority in other jurisdictions.

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