Mertens v. Hewitt Associates, 508 U.S. 248 (1993), is the second in the trilogy of United States Supreme Court ERISA preemption cases that effectively denies any remedy for employees who are harmed by medical malpractice or other bad acts of their health plan if they receive their health care from their employer.

According to John H. Langbein, Sterling Professor of Law and Legal History at Yale University the trouble got off to a bad start with Justice John Paul Stevens' dicta in Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134 (1985) a case where the plaintiff was an employee who after getting her improperly denied disability income insurance benefits paid in full also sought money damages for physical and emotional injury for the delay of six months while the employer had denied payment.

[1] This mistake in choosing which section of ERISA to base the claim would lead to an error by Justice Scalia later in Mertens.

Because the plaintiff in Russell won in the Ninth Circuit, and because all Ninth Circuit decisions must be reversed by the High Court, Justice Stevens' dicta said that "remedying consequential injury even under the authorization for 'appropriate equitable relief' in section 502(a)(3) would entail the creation of an implied cause of action, contrary to the Court's established constraints on the implication of causes of action under federal statutes."

When Mertens reached the High Court, Russell was already in the U.S. Reports suggesting that money damages for consequential injury sounding in ERISA is an implied right of action rather than an express right.