Gustilo v. Hennepin Healthcare System, Inc.

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UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Tara Gustilo, M.D.,               Case No.: 0:22-cv-00352-SRN-DJF        

          Plaintiff,                                                     
                                            ORDER                        
v.                                                                       

Hennepin Healthcare System, Inc.,                                        

          Defendant.                                                     


Aaron Mark Bostrom, Anne St. Amant, Bailey Stubbe, & Daniel J. Cragg, Eckland & 
Blando, 800 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402; 
and Douglas P. Seaton & James V. F. Dickey, Upper Midwest Law Center, 8421 
Wayzata Boulevard, Suite 300, Golden Valley, MN 55426, for Plaintiff.    

Katlyn Lynch, Kelly K. Pierce, & Matthew S. Frantzen, Hennepin County Attorney’s 
Office Civil Division, MC 137, 300 South Sixth Street, Suite A1300, Minneapolis, MN 
55487, for Defendant.                                                    


SUSAN RICHARD NELSON, United States District Judge                        
    This matter is before the Court on Plaintiff Tara Gustilo’s Request for Judicial 
Notice [Doc. 155].  For the reasons below, the Court denies the request.  
I.   BACKGROUND                                                           
    After the Eighth Circuit remanded this matter back to this Court (Doc. 81) and this 
Court denied Defendant Hennepin Healthcare System’s (HHS) supplemental motion for 
summary judgment (Doc. 122; Doc. 143), the parties agreed that Dr. Gustilo’s First 
Amendment retaliation claim should be tried in two separate trials (Doc. 130 at 1).  The 
first trial will focus on “whether Dr. Gustilo’s Facebook posts were disruptive, as that term 
is used in cases in the Eighth Circuit involving the Pickering balancing test.”  (Id.)  The 
jury will answer six factual questions which will assist the Court in balancing the Pickering 
factors:1                                                                 

         1.  Did HHS’s OB-GYN Department have a need for harmony         
           and close working relationships in the workplace?             
         2.  Did Dr. Gustilo’s 2020 Facebook posts cause, or could they  
           reasonably have caused, disharmony or disruption in the       
           workplace?                                                    
         3.  Were the time, place, and manner of Dr. Gustilo’s 2020      
           Facebook posts such that they could have been attributed to   
           HHS’s OB-GYN Department?                                      
         4.  Did  Dr.  Gustilo’s  2020  Facebook  posts  arise  from  a  
           personal  dispute  between  her  and  her  employer,  her     
           academic interest in matters of public concern outside of     
           work, both, or neither?                                       
         5.  Did  Dr.  Gustilo’s  2020  Facebook  posts  contain  unique 
           perspectives on the issues on which she was commenting        
           or  contribute  previously  unknown  facts  to  the  public   
           debate?                                                       
         6.  Did Dr. Gustilo’s 2020 Facebook posts impair her ability to 
           perform her duties as Chair of the OB-GYN Department?         
See generally Shands v. City of Kennett,
993 F.2d 1337
, 1342 (8th Cir. 1993).  The second 
trial, “if necessary,” will focus on “the issues of causation and damages.”  (Doc. 130 at 1.) 

    1 The Pickering factors are “(1) the need for harmony in the work place; (2) whether 
the  government’s  responsibilities  require  a  close  working  relationship;  (3)  the  time, 
manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree 
of public interest in the speech; and (6) whether the speech impeded the employee’s ability 
to perform his or her duties.”  Noon v. City of Platte Woods,
94 F.4th 759
, 764 (8th Cir. 
2024).  (See also Doc. 143 at 12–27 (explaining how the Pickering factors apply to this 
case).)                                                                   
    In anticipation of the first trial, HHS filed a motion in limine.  (Doc. 138.)  It 
requested, as relevant here, that Dr. Gustilo be precluded from “transform[ing]” the trial 

“into a soapbox . . . to mount or a vehicle to advance her favored position on the political 
and cultural issues of the day.”  (Id. at 5.)  The special interrogatories that the jury will 
answer have little to do with the merits of Dr. Gustilo’s opinions, and everything to do with 
whether HHS’s interests, “as an employer, in promoting the efficiency of the public 
services it performs through its employees” outweigh Dr. Gustilo’s interests, “as a citizen, 
in commenting upon matters of public concern.”  Shands, 993 F.2d at 1342 (quoting 

Pickering v. Bd. of Educ.,
391 U.S. 563, 568
(1968)).  So the Court granted HHS’s motion 
“to the extent that it seeks to preclude arguments that Dr. Gustilo’s opinions were right or 
wrong.”  (Doc. 154 at 4.)  The Court explained that “[t]he parties may present evidence 
and testimony about how Dr. Gustilo’s posts were perceived by others to show how the 
posts impacted, or had the potential to impact, HHS’s operations and Dr. Gustilo’s ability 

to lead the [OB-GYN] Department.  But this trial will not be a forum for debating the merits 
of her opinions.”  (Id.)                                                  
    After the Court ruled on the motion in limine, Dr. Gustilo filed a Request for Judicial 
Notice [Doc. 155].  She asks the Court to judicially notice two alleged facts that she 
believes are necessary to counter the potential argument that her Facebook posts were 

“blatantly racist,” “thoughtless,” and “reckless.”  (Doc. 155 at 1 (quoting Doc. 137 at 2–3).)  
First,  she  claims  that  “[m]ultiple  government  organizations  have  concluded  that 
COVID-19 originated from a lab leak in Wuhan, China” and that “the World Health 
Organization ‘caved’ to the Chinese Community [sic] Party, allowing it to conceal the 
severity of the Pandemic.”  (Id. at 4–5.)  Second, she claims that “[i]n each year from 2015 
through 2019, police in the U.S. killed more white persons than black persons.”  (Id. at 6.)  

In support, Dr. Gustilo cites and attaches a U.S. House of Representatives Oversight 
Committee report, a whitehouse.gov webpage, articles by several news organizations, 
articles by special interest groups, and a Washington Post database.  (Id. at 5–7 n.6–12.) 
II.  ANALYSIS                                                             
    Under Federal Rule of Evidence 201, a court “may judicially notice a fact that is not 
subject to reasonable dispute because it:  (1) is generally known within the trial court’s 

territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 
accuracy cannot reasonably be questioned.”  Fed. R. Evid. 201(b).  A party requesting 
judicial  notice must “suppl[y]” the court “with the necessary information.”   Fed.  R. 
Evid. 201(c)(2).  And if the party does so in a civil case, the court “must instruct the jury 
to accept the noticed fact as conclusive.”  Fed. R. Evid. 201(f).  However, Rule 201 governs 

only judicial notice of adjudicative facts, Fed. R. Evid. 201(a), that is, facts “concerning 
the immediate parties who did what, where, when, how, and with what motive,” United 
States v. Gould,
536 F.2d 216, 219
(8th Cir. 1976) (citation omitted), which “normally go 
to the jury in a jury case,” United States v. Lopez,
880 F.3d 974, 982
(8th Cir. 2018) 
(quoting Qualley v. Clo–Tex Int’l, Inc.,
212 F.3d 1123, 1128
(8th Cir. 2000)).  Rule 201 

does not govern legislative facts, which are “established truths, facts or pronouncements 
that do not change from case to case but apply universally.”
Id.
(quoting Gould,
536 F.2d 
at 220
).  Moreover, a court may not judicially notice evidence “in contravention of the 
relevancy, foundation, and hearsay rules.”  Am. Prairie Const. Co. v. Hoich,
560 F.3d 780, 
797
(8th Cir. 2009).                                                      

    Dr. Gustilo has not met her burden to show that her alleged facts meet Rule 201’s 
demanding standard.  The alleged facts are derived largely from political sources, and they 
are argumentative.  See Ng v. Bd. of Regents of Univ. of Minn.,
64 F.4th 992
, 994 n.2 (8th 
Cir. 2023) (declining to judicially notice “[t]he contents of” a public letter by a public 
university  regent  because  they  are  “not  generally  known  nor  determinable  from 
unquestionable sources but argumentative”).  They are not basic and indisputable (or 

undisputed) adjudicative facts like the fact of a defendant’s prior conviction based on a 
“charging document, guilty plea, and state-court judgment,” United States v. Wings,
106 
F.4th 793
, 795 (8th Cir. 2024), the fact that a person has registered as a sex-offender based 
on public registration records, Bacon v. Neer,
631 F.3d 875, 878
(8th Cir. 2011), or the 
details of a contract and patent application “placed in the record without objection,” 

OmegaGenesis Corp. v. Mayo Found. for Med. Educ. & Rsch.,
851 F.3d 800, 802
(8th Cir. 
2017).  Rather, they are complex and reasonably disputed facts that are not specific to the 
parties.  The Court may not take judicial notice of such alleged facts.  See Qualley,
212 
F.3d  at  1128
(finding  error  where  district  court  judicially  noticed—based  on  a 
“Congressional  report,”  a  “Senate  committee  report,”  newspaper  articles,  and  news 

broadcasts—that “at all times pertinent to th[e] lawsuit, there were Nigerian fraud scams 
perpetrated on people in the United States and other countries in the world” involving “oil 
deals that never materialized”); cf. Hargis v. Access Cap. Funding, LLC,
674 F.3d 783
, 
792–93 (8th Cir. 2012) (finding no abuse of discretion where district court denied request 
for judicial notice of legislative materials, policy statements, and a preamble to a proposed 
rule).                                                                    

    Even assuming that Dr. Gustilo’s alleged facts satisfy Rule 201, the Court finds that 
they run afoul of Federal Rule of Evidence 403.  The Court reaffirms its prior finding that 
the “probative value,” if any, of evidence and argument on the merits of Dr. Gustilo’s 
political opinions “is substantially outweighed by a danger of . . . confusing the issues, 
misleading the jury,” and “wasting time.”  Fed. R. Evid. 403.  (See Doc. 154 at 4.)  The 
jury’s focus in this trial will be on whether Dr. Gustilo’s Facebook posts caused, or could 

have caused,  disharmony or disruption in the workplace, and whether they impaired 
Dr. Gustilo’s ability to perform her duties as Chair of the OB-GYN Department.  (Doc. 143 
at 12–27; Doc. 154 at 3–5; see also Eighth Circuit Model Civil Jury Instruction § 13.91.)  
The jury can use its own common sense to make its factual findings on these questions, so 
the probative value of Dr. Gustilo’s alleged facts is marginal at best.  On the other side of 

the scale, the danger of confusing the issues, misleading the jury, and wasting time is high.  
An instruction by the Court on Dr. Gustilo’s alleged facts would confuse the jury about 
which questions it is tasked with answering.  Plus, admitting the alleged facts would create 
a slippery slope, opening the door to contrary facts in support of contrary political views.  
If the trial is steeped in politically charged debates about race, policing, and Covid-19, the 

jury will be distracted from the questions before it, and the side-show from litigating these 
tangential issues will waste time.                                        
    Importantly, the Court’s order precluding argument and evidence on the merits of 
Dr. Gustilo’s political opinions applies to both parties.  Just as Dr. Gustilo may not present 
evidence to validate her opinions, HHS may not present evidence to invalidate them.  Both 
parties must focus instead on how her Facebook posts were, or could have been, perceived 

by HHS employees, patients, donors, and the public.  HHS may present evidence that these 
people were offended by the posts, but it may not present evidence on the merits of the 
posts.  Likewise, Dr. Gustilo may present evidence that people were unbothered by her 
posts, but she, too, may not present evidence on the merits of the posts. 
III.  ORDER                                                               
    Based  on  the  submissions  and  the  entire  file  and  proceedings  herein,  IT  IS 

HEREBY ORDERED that:                                                      
    1.  Plaintiff’s Request for Judicial Notice [Doc. 155] is DENIED.    

Dated:  June 18, 2025                   /s/  Susan Richard Nelson         
                                       SUSAN RICHARD NELSON              
                                       United States District Judge