01-2430 Chestnut, et al. v. Hall, et al.

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“The appellants also assert that they twice argued the substantive problems they had with the law ultimately set forth in Final Instruction 23 during the presentation of evidence. The assertion that these evidentiary arguments serve as or excuse a formal Rule 51 objection does not bar waiver in this case. A party may be excused from complying with the formalities of Rule 51 where: (1) the party’s position has been previously made clear to the court; and (2) further objection would be unavailing and futile. Carter v. Chicago Police Officers M.L., 165 F.3d 1071, 1078 (7th Cir. 1998) (citations omitted). Even if we were to assume that the appellants’ arguments regarding Final Instruction 23 were made sufficiently clear to the district court (which is questionable), the appellants have made absolutely no showing that a timely, specific and formal Rule 51 objection would have been unavailing and futile. This is especially true where, as here, the appellants were afforded and failed to seize the opportunity to make a specific, formal objection during the instruction conference at trial.”

Affirmed.

Appeal from the United States District Court for the Southern District of Indiana, Tinder, J., Bauer, J.