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Hallowell v. Safeway, Inc.

United States District Court, W.D. Washington, Seattle

January 4, 2018

SAFEWAY, INC., Defendant.



         THIS 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.


         Plaintiff 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.

         On 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

         Plaintiff 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.


         A. Summary Judgment Standard

         The 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)).

         B. Preemption Under the VICP

         Defendant 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).

         The 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 ...

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