This seems to jibe with your criticism that -- as I understand you -- the Schindler attorney should have ignored the Greer court record and started the litigation from scratch (perhaps with a few declarations attached to his complaint, going to a contention that she's not PVS and wouldn't want to be put down).
With these "evidences" offered - and no weighty record going the other way, or trial court decision helping to shape perceptions -- the federal district court would not have been able to say that the Schindlers hadn't met the substantial probability prong of the injunctive relief test. ? Is that what you're saying?
I will suggest, though, that confusion as to how to draft the federal complaint might be understandable. "De novo" on appellate review doesn't mean, ordinarily, to create a new record or to disregard the existing one. Rather, it means to approach that record with fresh eyes and not be bound by the conclusions that the lower court reached based on that record. In making out arguments on a de novo review, is it really uncommon to criticize how the trial court perceived the record, when suggesting what conclusions the appellate court ought to draw from it?
Nope, de novo means a new trial in the trial court. Gibbs just needed to plead what he pled before Greer. He was offered a second bite of the apple. Any findings Greer made are findings of which the federal court is not to take cognizance.