When Objecting Once Is Not Enough: Recognizing A Continuing Duty As The Charges And Verdict Form Evolve

On November 21, 2016, the First Circuit offered practitioners yet another reminder that, as the charges and verdict form evolve through colloquys with the trial judge, there is a continuing obligation to object; the timing of objections to jury instructions and verdict form can sometimes take on more importance than the fact of an objection at the start. See In re Nexium (Esomeprazole) Antitrust Litigation, 842 F.3d 34, 59 (1st Cir. 2016).

In this pharmaceutical-settlement antitrust action, objections were made to versions of the jury instructions and verdict form at a conference with the trial court before the jury was charged. But when the trial judge made some modifications before finally instructing the jury, the plaintiffs did not make the specific objections they raised on appeal in a post-charge sidebar, despite the trial judge's earlier warning that the parties had to raise their objections at the end of the charge to preserve them for appeal.