AMRN did not appear to
challenge the defendants on this during the trial and you can't open new
lines of argument during appeals. Crap. AMRN legal really screwed up
here.
You can know that Amarin did not challenge any particular theory of the defendants only if you have the trial transcript (or attended the trial) and thus know what arguments Amarin made during the trial (which may or may not be referenced in their trial brief containing proposed findings of fact).
Your claim that Amarin "screwed up," and the author's fear that Amarin waived the ability to address any apparent error by Judge Du regarding Kurabayashi, are premature.
We'll know more when the parties' appellate briefs are filed.