Gibbs' argument for due process violations was premised on the procedures and orders of Greer. It was Gibbs who introduced Greer into the proceedings for Whittemore's consideration. Regarding the de novo trial, Whittemore has not yet tried the case.
We all know that, and if plaintiff/petitioner dies in the meantime - which is highly probable as the judge points out - there will be no trial. That is one of the reasons preliminary injunctions are issued.