WINE & CANVAS DEVELOPMENT LLC v. WEISSER et al

Filing 428

ENTRY on Objections to Demonstrative Exhibits. Signed by Judge Tanya Walton Pratt on 11/15/2014. (See Entry for details)(TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WINE & CANVAS DEVELOPMENT LLC,

)
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Plaintiff,
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v.
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CHRISTOPHER MUYLLE,
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Defendant.
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______________________________________ )
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CHRISTOPHER MUYLLE,
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Counter Claimant,
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v.
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WINE & CANVAS DEVELOPMENT LLC,
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Counter Defendant.
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______________________________________ )
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CHRISTOPHER MUYLLE,
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Third Party Plaintiff,
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v.
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TAMARA SCOTT, DONALD McCRACKEN, )
and ANTHONY SCOTT,
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Third Party Defendants.
)
)

Case No. 1:11-cv-01598-TWP-DKL

ENTRY ON OBJECTIONS TO DEMONSTRATIVE EXHIBITS
As per the Entry Following Final Pre Trial Conference, “any objections to demonstrative
exhibits were to be filed by 12:00 p.m. on Friday, November 14, 2014.” (Filing No. 397 at ECF
p. 7). Plaintiff Wine & Canvas Development LLC and Third Party Defendants Tamara Scott,

Donald McCracken, and Anthony Scott (collectively “WNC Parties”) filed a response to
Defendant Christopher Muylle’s Demonstrative Exhibits (Filing No. 421). Defendant Christopher
Muylle (“Mr. Muylle”) also filed objections to the WNC Parties Demonstrative Exhibits (Filing
No. 422). The Court rules on the objections as follows:
WNC Parties’ Objections
In their filing, WNC Parties state that “have no objection at this time to Muylle’s
demonstrative exhibits, which are attached hereto as Exhibit A, except to the extent that said
demonstrative exhibits are factually inaccurate until such time as Muylle is able to elicit admissible
testimony to support each of the factual assertions set forth therein.” (Filing No. 421). WNC
Parties’ objection appears to be based on requiring Mr. Muylle to lay a foundation for his
demonstrative exhibits before using them during his opening statement.
The purpose of an opening statement is to tell the jurors something about the case and the
evidence that they will be hearing. Summarizing the issues and the evidence that will be presented
with the use of a demonstrative exhibit is therefore appropriate for opening statements. However,
demonstrative exhibits must be relevant to the claims and factually accurate, they are not evidence
and will not be admitted for the jury’s consideration during deliberations. Having reviewed Mr.
Muylle’s proposed demonstrative exhibit, it appears to be a factual summary of the claims that
will be heard by the jury. Further, there is no need for counsel to “elicit testimony” to “lay a
foundation” for demonstrative exhibits used during opening statements. WNC Parties’ objection
is OVERRULED.
Mr. Muylle’s Objections
Mr. Muylle objects to WNC’s proposed demonstrative exhibit titled “Update Your Wine
and Canvas Profile” and the “Sign up to receive our email newsletter” demonstrative exhibit on

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the basis that they are not relevant to the claims at issue for trial. While demonstrative exhibits are
not evidence and will not be admitted for the jury’s consideration during deliberations, they still
must be relevant to the claims to be tried. It appears that these demonstrative exhibits are not
relevant to the claims at issue for trial, and thus, the Court SUSTAINS Mr. Muylle’s objection as
to these demonstrative exhibits.
Mr. Muylle does not object to WNC’s “Yelp Review for Art Uncorked” demonstrative
exhibit, but Mr. Muylle previously objected to WNC referring to the exhibit as the “negative” Yelp
posting (Filing No. 374 at 5). The Court SUSTAINS Mr. Muylle’s objection in part, and WNC
may not refer to the exhibit as the “negative” Yelp posting, however, he may present the
demonstrative exhibit in his opening statement.
Mr. Muylle objects to WNC’s “Post of Chris Muylle on Personal Facebook Page”
demonstrative exhibit on grounds of relevance, prejudice, and confusion, and that it is not
probative as to any issues for trial. Mr. Muylle made these same objections to this same exhibit as
an evidentiary exhibit in Filing No. 374. The Court SUSTAINS Mr. Muylle’s objection as to this
exhibit as a demonstrative exhibit during opening statement, but WNC may attempt to use the
exhibit as evidence at trial if it can first satisfy the requirements of the Rules of Evidence when
offering the exhibit.
Mr. Muylle objects to WNC’s “Excerpt from Facebook Home Page for Art Uncorked”
demonstrative exhibit on the basis that the excerpt is potentially misleading, but has no objection
to the demonstrative exhibit presented in its entirety. The Court SUSTAINS Mr. Muylle’s
objection to the presentation of this demonstrative exhibit as an excerpt, but WNC may use the
entire Facebook Home Page for Art Uncorked as a demonstrative exhibit. The Court reminds

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counsel that demonstrative exhibits should be used sparingly to assist the jury in understanding the
opening statement and that they must be relevant to the claims to be tried.
Mr. Muylle objects to WNC’s “Email from Ted Weisser to Tony Scott re threat to call
Tony’s wives” demonstrative exhibit on numerous grounds including relevance, unfair prejudice
and potential confusion. Mr. Weisser is defaulted and any claims regarding Mr. Weisser are not
being tried to the jury. As such, this demonstrative exhibit is not relevant to the claims to be tried
and is unfairly prejudicial. The Court SUSTAINS Mr. Muylle’s objection as to this demonstrative
exhibit during opening statement.
Mr. Muylle objects to WNC’s “Damages Chart” demonstrative exhibit on the grounds that
it contains some information not relevant to the claims to be tried, lacks foundation and accuracy,
is untimely, and does not comply with the Court’s discovery orders. Demonstrative exhibits are to
be used to assist the jury in understanding the issues. WNC’s damages charts and other evidence
on damages may be used during opening statement as the issue of damages is relevant to the claims
to be tried. The Court OVERRULES Mr. Muylle’s objection as to this chart as a demonstrative
exhibit.
Mr. Muylle objects to WNC’s “Chart of Purported Wrongful Activity” demonstrative
exhibit on the grounds that it contains information not relevant to the claims to be tried, is
confusing and prejudicial, and is untimely. Again, demonstrative exhibits are to be used to assist
the jury in understanding the issues. Although a chart of purported wrongful activity might be
beneficial, the proposed exhibit does contain information not relevant to the claims to be tried and
using this exhibit in the opening statement has a high potential for confusing the jury. The Court
SUSTAINS Mr. Muylle’s objection as to this demonstrative exhibit.

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The Court’s determination that a proposed demonstrative exhibit is not appropriate for
opening statement does not necessarily foreclose it from being offered during trial.
SO ORDERED.

Date: 11/15/2014

DISTRIBUTION:
P. Adam Davis
DAVIS & SARBINOFF LLP
[e-mail]
Carol Nemeth Joven
PRICE WAICUKAUSKI & RILEY
[e-mail]
Ronald J. Waicukauski
PRICE WAICUKAUSKI & RILEY
[e-mail]

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