Are you sure? The en banc decisions were heavily in favor of upholding the lower court, and avoided probing the judgement of the fact finder. I think that is a systematic "circle the wagons" behavior, rooted in form over substance. Pharisees if you will. At some point, the judges come off as defensive when they blame the lawyers. E.g., why blow off the motion that the patient said "I don't want to die" (I know, the patient isn't able to communicate clearly, and maybe didn't communicate at all), because it wasn't timely. How in God's creation that can be justified is beyond me.
Yes, I am sure that the Schindler's lawyers should have pushed for the de novo review in Federal Court this past week. I am also sure that they didn't.
That's not to say it would have worked - I think it would have won their side some time. If they tried it and the Fed Court didn't grant it, I would have a problem with that judge.
In any case, we won't find out. The Schindler lawyers didn't understand what a de novo review is.