UPDATE, 8:38 AM: The Pitt is officially coming back for a second season Max declared on Valentines’ Day, and the legal fray between Michael Crichton’s widow and Warner Bros Discovery over the Noah Wylie starrer is officially going forward, an LA judge ruled Monday.
“Constrained by the procedural rules under the anti-SLAPP statute, the Court finds that the evidence submitted by Plaintiffs meet the minimal merit standard to demonstrate at least a prima facie case that The Pitt is derived from ER. Under anti-SLAPP standards, the Court cannot find Plaintiffs claims to be totally meritless,” wrote LA Superior Court Judge Wendy Chang in a final ruling issued late on February 24 denying WBD’s anti-SLAPP motion.
A follow up on the “soft” tentative that Judge Chang put forth at the end of January after a downtown hearing, Monday’s ruling now sets the stage for the case to move forward, with discovery (no WBD pun intended). No trial date has been set, and, as can always occur in such skirmishs, a settlement is never out of the question.
Not putting her thumb on the overall merits of either side’s case, Judge Chang went on to note in her six-page ruling yesterday: “Plaintiffs’ evidence establish a timeline of various communications and events to show the negotiations with the Estate over an ER reboot, failure of those negotiations, and the creation of The Pitt. Plaintiffs’ evidence challenges Defendants assertion of the applicable definition of derivative works as intended by the parties when drafting the original Agreement.”
“The Court cannot determine the ultimate question of whether or not The Pitt is, in fact, derivative of ER within the meaning of the Agreement through this motion.”
With their initial legal tactic rebuffed, WBD did not respond to request for comment on the final ruling. However, a spokesperson for Sherri Crichton certainly had something to say today.
“This is an important win for Michael Crichton and the entire creative community.,” the rep said Tuesday. “The Court has rejected Warner Bros.’ attempt to avoid responsibility for breaching its contract with Michael Crichton, finding that the Crichton Estate’s claim has merit and should proceed. Sherri Crichton was thrilled that the original team behind ER wanted to do a reboot and was shocked when Warner Bros. abruptly broke off negotiations and announced The Pitt – a carbon copy of the ER reboot that was pitched to her. The Crichton Estate looks forward to presenting its case to a jury and is confident it will prevail.”
PREVIOUS, JAN 30 PM: Warner Bros Discovery’s efforts to pull the plug on a lawsuit that claims the Noah Wyle-starring The Pitt is just more ER by any other name came up short Thursday, softly.
In a hearing this morning downtown in Los Angeles Superior Court, Judge Wendy Chang issued what she called a “soft tentative” denying WBD’s free-speech-fueled anti-SLAPP motion. This leaves everything in a state of judicial purgatory, at least until something more solid comes from the bench.
The hearing today before Chang was the first major courtroom face-off over the August 27 breach of contract suit filed by Crichton’s widow Sherri Crichton on behalf of John Michael Crichton Trust’s Roadrunner JMTC on claims that The Pitt is an unauthorized ER derivative. As well as WBD, producer John Wells, star Noah Wyle and The Pitt showrunner R. Scott Gemmill have been named as defendants.
With a number of pointed questions during oral presentations from lawyers on both sides, Chang made it clear Thursday that she was mainly making the decision due to the high standard of anti-SLAPP statutes – – which is not uncommon in such cases. In fact, a fair number of the judge’s queries to Crichton’s team expressed out and out skepticism at times of their perspective focusing on plans for an ER reboot and what became The Pitt.
As for when a final ruling could come, Chang cited a busy schedule and offered no specifics.
“We are encouraged by the Court’s soft tentative and look forward to the final ruling,” Robert Klieger, Crichton’s primary lawyer, told Deadline after the session ended. “We continue to believe in the strength of our position,” a WBTV spokesperson stated of today’s outcome. “Beyond that, we have no further comment.”
With all that, both sides have long admitted there had been extensive discussions among WBTV and Wells and the Crichton estate over putting together an ER sequel of sorts. However, that all fell apart in April 2023 with deep disagreements over money.
Pivoting with a shift of locations from Chicago to Pittsburgh, what is now called The Pitt emerged from those discussions. Based on a premise of a real-time narrative — a notion producers say they had been working on before negotiations with Sherri Crichton started — the Gemmill-created The Pitt launched January 8o on Max with star/EP Wyle as Dr. Michael “Robby” Rabinavitch.
Within hours of Deadline exclusively revealing Sherri Crichton’s legal action in August, Warner Bros Discovery called the claims “baseless.” Centering on IP and whether or not the similarities between the shows went further than genre and lead actor, the David Zaslav-run media giant followed that up more formally a few months later. The Pitt “is a new show with different names and iconography, plot lines, characters, locations, pacing, and approaches to music and lighting,” according to filings by Gibson Dunn & Crutcher attorneys for WBD and Pitt principals the initial motion to strike from November 24 last year.
(L-R) The ER cast: Noah Wyle as John Carter, Sherry Stringfield as Susan Lewis, Anthony Edwards as Mark Greene, Julianna Margulies as Carol Hathaway, George Clooney as Doug Ross, Gloria Reuben as Jeanie Boulet and Eriq La Salle as Peter Benton
Warner Bros. 2023
In that reply filing on January 24, WBD, Wells, Wyle and Gemmill’s Ilissa Samplin-led legal team painted a more detailed portrait of the dispute. The stakes were made all the starker being that The Pitt’s premiere earlier this month makes comparisons to ER plainly seen, or not:
The primary question presented on this Motion is whether the medical drama The Pitt, which recently debuted on Max, is a “sequel[], remake[], spin-off[] and/or other derivative work[]” of the bygone show ER. This is not a close question. The two shows do not share the same name, characters, universe, plot, iconography, or IP. As any viewer can see, the only similarities are that they share an actor (playing different characters) and are medical dramas that include common tropes of that genre. As a matter of law, this is not sufficient to make The Pitt a “derivative work” of ER—and this suit should be dismissed. The anti-SLAPP statute ensures plaintiffs cannot stifle speech by subjecting speakers to the harassment of litigation without evidence to support their claims. Plaintiff has not produced evidence to support its claims—nor could it. The Court has the shows and can see that The Pitt is not derivative of ER. The Court should dismiss this case and protect Defendants’ right to air The Pitt—a show that speaks poignantly about emergency medicine in the post-COVID world.
The court did not agree, for now.
Based on a script from the 1970s that Crichton revamped with the help of Steven Spielberg, the widely acclaimed ER ran on NBC from 1994-2009. The series starred Wyle, Gloria Reuben, George Clooney, Eriq La Salle, Sherry Springfield, Anthony Edwards and Julianna Margulies and saw directing efforts from the likes of Quentin Tarantino too. With dozens of books, screenplays and more under his belt, Michael Crichton died in 2008.
