1. “Did a panel of this Court err when it concluded that a district court held a Rule 52 evidentiary trial even though (i) the parties agree that the district court held no such trial, (ii) the district court provided no notice that it was going to hold such a trial nor references such trial in its decision on summary judgment, and (iii) the plaintiff was given no opportunity to: conduct direct or cross examination of witnesses at trial; object to admissibility of hearsay expert reports; or otherwise benefit from federal rules regarding civil procedure or evidence that govern such trials?”
2. “Did a panel of this Court err in finding that a plaintiff waives its right to participate at a Rule 52 evidentiary trial simply because (a) the plaintiff did not request such a trial in opposition to a motion for summary judgment and (b) the plaintiff did not demonstrate a ‘concrete . . . need’ to participate nor demonstrate ‘concrete . . . prejudice’ for not participating?”
