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28. Should the judge consider the objection?
The judge instructed the jury. After the jury began their deliberations, the consumer's attorney objected to the contributory negligence instruction.
Before trial, the judge allowed the parties to submit proposed jury instructions. The manufacturer's attorney proposed an instruction that the jury should not return a verdict for the consumer if it found that the consumer had been contributorily negligent. After the close of the evidence, the judge told the parties that he would give the contributory negligence instruction. The consumer's attorney did not object.
A consumer brought a federal diversity action against a manufacturer, seeking damages for products liability claims. In its answer, the manufacturer included the affirmative defense of contributory negligence. Applicable state law had recently abolished contributory negligence as a defense in such actions.
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A is incorrect. Generally, an error in the instructions is waived unless there is a timely objection. However, a court may consider a plain error in the instructions that has not been preserved as required, if the error affects substantial rights. Fed. R. Civ. P 51(d)(2). Here, the instructions contain a plain error which affects the consumer's substantive rights, since the governing law does not recognize contributory negligence as a defense to this kind of claim.
B is incorrect. If the error referenced in the objection is plain error, the attorney's failure to object at the time the judge gave the contributory negligence instruction is not an obstacle to the judge considering the objection. Here, the error is plain and the fact that the claim of error was not properly preserved is irrelevant.
D is incorrect. There is no 28-day window after the jury is instructed to object to any instructions. For most objections to jury instructions, the objection must be made before the instruction is given to the jury. The exception to the general rule concerns objections regarding a plain error, and that exception applies here.