United States District Court, W.D. Washington, Seattle
S. ZILLY UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Safeway Inc.'s
Motion for Summary Judgment, docket no. 21 (the
“Motion”). Having reviewed all papers filed in
support of, and in opposition to, the Motion, the Court
enters the following order.
alleges that on or about October 22, 2014, Defendant
negligently administered to her a flu shot. Complaint for
Personal Injuries in Tort, docket no. 1-1 (the
“Complaint”), at ¶¶ 3.1, 3.2. Plaintiff
specifically asserts that she “sustained nerve damage
during the administration of the flu shot because the nurse
jammed the needle in the wrong way.” Declaration of
Mary Hallowell, docket no. 24 (“Hallowell Decl.”)
at ¶ 5.
October 22, 2014, Plaintiff signed a form titled
“CONSENT AND RELEASE -
INJECTABLE VACCINATIONS.” Declaration of Anne
M. Loucks in Support of Defendant Safeway, Inc.'s Motion
for Summary Judgment, docket no. 22 (“Loucks
Decl.”), Exhibit 1 (the “Consent and Release
Form”). The sole paragraph of text in the Consent and
Release Form states in relevant part:
I acknowledge that I understand the benefits and risks of the
requested vaccinations as described in the Vaccine
Information Sheet, a copy of which is provided with this
Consent and Release. I confirm that Safeway Inc. on behalf of
its pharmacy operations in all divisions,
(“Safeway”) has answered to my satisfaction all
of my questions about the vaccine and the vaccination
procedure, . . . I . . . hereby release Safeway and its
divisions and affiliates and their respective officers,
directors, employees, agents, and representatives from any
and all claims arising out of or in connection with the
quality of the above-described vaccine(s) as provided by the
manufacturer and any negligence of Safeway in connection with
the related injection of the vaccination.
Id. Plaintiff does not dispute that, prior to
obtaining the flu shot in question, she received a Vaccine
Information Statement attached to the Consent and Release
Form. The Vaccine Information Statement states that, if a
recipient has a serious reaction to the vaccination, he or
she should report the reaction to the Vaccine Adverse Event
Reporting System (VAERS). Id. at 10. “The
National Vaccine Injury Compensation Program (VICP) is a
federal program that was created to compensate people who
may have been injured by certain vaccines. Persons
who believe they may have been injured by a vaccine can learn
about the program and about filing a claim by calling
1-800-338-2382 or by visiting the VICP website at
has not reported any adverse reaction to the VAERS or pursued
any claim under the VICP. Instead, on or about March 3, 2016,
Plaintiff filed the Complaint in King County Superior Court.
See generally Complaint. Defendant removed the
action to this Court on June 24, 2016, see docket
no. 1 (Notice of Removal), and filed the instant Motion on
October 26, 2017. Defendant asks this Court to dismiss this
lawsuit and for the fees and costs it incurred in making the
Motion. See Motion at 6-7. In opposing the Motion,
Plaintiff asks for leave to amend the Complaint should the
Court conclude that her lawsuit be dismissed. See
Plaintiff's Response to Defendant Safeway Inc.'s
Motion for Summary Judgment, docket no. 23 (the
“Response”) at 9.
Summary Judgment Standard
Court shall grant summary judgment if no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A fact is material if
it might affect the outcome of the suit under the governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). To survive a motion for summary judgment, the
adverse party must present affirmative evidence, which
“is to be believed” and from which all
“justifiable inferences” are to be favorably
drawn. Id. at 255, 257. When the record, however,
taken as a whole, could not lead a rational trier of fact to
find for the non-moving party, summary judgment is warranted.
See Beard v. Banks, 548 U.S. 521, 529 (2006)
(“Rule 56(c) ‘mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.'” (quoting
Celotex, 477 U.S. at 322)).
Preemption Under the VICP
argues that Plaintiffs' personal injury claims are
preempted by the VICP. The Ninth Circuit has observed that
the VICP preempts certain categories of state law claims.
See, e.g., Holmes v. Merck & Co., 697
F.3d 1080, 1085-90 (9th Cir. 2012) (“The text of these
clauses indicates that Congress expressly intended to
prohibit states from regulating large aspects of tort suits
against vaccine manufacturers.”). “For injuries .
. . traceable to vaccinations, the [VICP] establishes a
scheme of recovery designed to work faster and with greater
ease than the civil tort system.” Shalala v.
Whitecotton, 514 U.S. 268, 269-70 (1995). 42 U.S.C.
§ 300aa-11(a) states that “[a] proceeding for
compensation under the [VICP] for a vaccine-related injury or
death shall be initiated by . . . the filing of a petition
containing the matter prescribed in subsection (c) with the
United States Claims Court [United States Court of Federal
Claims].” Subject to certain conditions not at issue in
this Motion, Subsection (2)(A) requires that “[n]o
person may bring a civil action for damages greater than $1,
000 or in an unspecified amount against a vaccine
administrator or manufacturer in State or Federal court for
damages arising from a vaccine-related injury or death
associated with the administration of a vaccine . . .
.” 42 U.S.C. § 300aa-11(a)(2)(A).
VICP defines a “vaccine-related injury or death”
as “an illness, injury, condition, or death associated
with one or more of the vaccines set forth in the Vaccine
Injury Table . . . .” 42 U.S.C. § 300aa-33(5). The
Vaccine Injury Table is set forth in 42 U.S.C. §
300aa-14 and 42 C.F.R. § 100.3 (the
“Table”). The Table expressly includes
“trivalent influenza ...