Here he is dissenting from a denial of en banc review, where he calls out the panel for reversing a provisional, pretrial ruling from Judge King (excluding an expert) because the appellant failed to transcribe the actual trial where Judge King ruled the same way -- except this time during trial:
The panel assigned to hear Rosenfeld’s appeal overlooked the fact that Rosenfeld’s argument for reversal was based on a provisional pretrial ruling and treated the argument as if it were addressed to the District Court’s trial ruling. The panel then concluded that the District Court erred in excluding the proffered evidence, that the error was not harmless, and that the District Court should have granted Rosenfeld a new trial. In overlooking what Rosenfeld had done, the panel failed to recognize that Rosenfeld, in basing her new trial motion on a provisional pretrial evidentiary ruling rather than an evidentiary ruling at trial, had effectively waived her argument that the District Court abused its discretion in not granting a new trial. Had the panel recognized this fact, it would have rejected Rosenfeld’s appeal out of hand.I get it Judge -- there is a difference between a pretrial and trial evidentiary ruling.
(Enough with the underscoring!)