the plan because there is no plan. While some of the damages requested by the Plaintiffs certainly parallel the benefits they would have received from the insurance plan had it remained in existence, this is not enough to compel ERISA preemption. As justification for concluding that ERISA preemption does not apply in certain situations, some circuit courts have focused on the fact that the plaintiff was not a “participant” in a plan, and that, consequently, there was no ERISA plan which would be affected in the event the plaintiff were to recover. Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir.1988); Freeman v. Jacques Orthopaedic & Joint Implant Surg., 721 F.2d 654, 655-56 (9th Cir.1983). See also Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 120-21 (4th Cir.1989) (<HOLDING>). In Scott v. Gulf Oil Corp., 754 F.2d 1499,
holding that erisa permits suits to recover benefits only against the plan as an entity and thus the beneficiary had erred by suing her exhusbands employer and plan administrator when proper party would have been the benefits plan itself holding that district courts order remanding an erisa benefits determination to a plan administrator was nonfinal and therefore not appealable after the remand to plan administrator plan participant still could appeal the district courts decision that erisa preempted her state law claim and if successful she would be able to pursue punitive damage holding that erisa does not preempt the plaintiffs claim that the erisa plan administrator is liable for medical malpractice where the plaintiff premised the claim solely on state law and did not invoke the erisa plan holding that plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant holding that erisa preemption does not apply where the plan itself would not be liable even though a successful plaintiffs damages would be measured in part by the lost pension benefits the plaintiff would have received had he been a participant in the plan