1 682 F.2d 12 (1st Cir. 1982).

2 Id. at 25.

3 Id. at 24 (quoting Eagle-Picher Indus., Inc. v. Liberty Mutual Ins. Co., 523 F. Supp. 110, 118 (D. Mass. 1981)).

4 Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982).

5 In addition to Abbott Labs, named defendants are Eli Lilly & Co., Merck & Co., Inc., Rexall Drug Co., E.R. Squibb & Sons, Inc., and Upjohn Co. Id. at 540, n.2.

6 Id. at 542.

7 Id. at 542-43.

8 Id. at 543.

9 Chief Justice Hennessey argued that the majority’s holding on question two provides a negligent manufacturer of a life-sustaining product with an excuse from liability wherever he can show that the product probably saved the plaintiffs life. “In effect, a tortfeasor who causes harm, but by the same stroke confers a benefit, need not answer for the harm.” Id. at 576.

10 Plaintiffs’ “market share” theory would have required them to prove only that each defendant acted negligently in marketing DES, that each plaintiff was injured, and that DES caused those injuries.

11 385 Mass. 598, 433 N.E.2d 1223 (1982). ‘

12 (West Supp. 1981). Section 47B applies to policies issued after its effective date, January 1, 1976, and to those “renewed by agreement between the insurer and the policy holder” after that date. See 1973 Mass. Acts 1174.

13 Travelers Insurance Co. and Metropolitan Life Insurance Co.

14 Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1381 (1976 & Supp. IV 1980).

15 National Labor Relations Act, 29 U.S.C. §§ 151-168 (1976 & Supp. IV 1980).

16 U.S. CONST, art. I, § 10, cl. 6.

17 385 Mass. at 602-03, 433 N.E.2d at 1226 (citations omitted).

18 See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981).

19 385 Mass, at 605, 433 N.E.2d at 1228 (quoting 29 U.S.C. § 1144(b)(2)(A) (1976)). The SJC did not interpret the intended scope of the savings clause. Rather, it reached its conclusion by reference to the policies and operations of ERISA, and by the general principle that preemption will not be implied unless there is a clear conflict between federal and state law.

20 Id. at 607, 433 N.E.2d at 1228.

21 See Local 24, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am. v. Oliver, 358 U.S. 283, 297 (1959) construed in Malone v. White Motor Corp., 435 U.S. 497, 513(1978).

22 See the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015 (1976) which provides that “[n]o Act of Congress shall be construed to invalidate, impair, or supercede any law enacted by any State for the purpose of regulating the business of insurance.” Id. at § 1012(b).

23 385 Mass, at 615, 433 N.E.2d at 1233 (quoting 1973 Mass. Acts 1174) (court’s emphasis omitted).

24 Id. at 616, 433 N.E.2d at 1233 (citations omitted).

25 387 Mass. 152, — N.E.2d — (1982).

26 See Mass. Ann. Laws ch. 231, § 60B (Michie/Law. Co-op Supp. 1982).

27 387 Mass, at 154-55, — N.E.2d at —.

28 Id. at 155, — N.E.2d at—.