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35. In a failure-to-warn action brought against the manufacturer of the medication, which of the arguments below would be the LEAST promising as a defense?
A mother purchased over-the-counter pain medication for her daughter, who suffered from headaches. The packaging indicated that the pills were «coated» but did not list the ingredients in the coating. A few days after she bought the medication, because the daughter was in extreme pain, the mother gave the daughter three times the recommended dose of the medication. Thirty minutes later, because the daughter had a very rare allergy to an ingredient in the coating, she had a severe allergic reaction, for which she was hospitalized. The mother was aware of the daughter's allergy, but she did not know that the medication contained the ingredient to which the daughter was allergic.
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A is incorrect. If the risk of a certain type of injury is low enough, there is no duty to warn. The incidence of injury being very rare would help the manufacturer to establish that the medication was not defective as a result of the failure to list the coating's ingredients or to otherwise warn of the risk of allergic reaction.
C is incorrect. The manufacturer can argue that its failure to warn was not a proximate cause of the daughter's injury because the mother's administration of a triple dose to the daughter was an unforeseeable intervening (superseding) cause. The argument may not win, but it is plausible and thus would be a better ground for avoiding liability than the learned intermediary rule, which would be ineffective as a defense.
D is incorrect. Given the mother's knowledge of the daughter's allergy, the mother's failure to determine whether the medication contained the substance to which the daughter was allergic may provide the basis for a lack of proximate cause defense.