Los Angeles — A California appeals court has found that “ER” and “The Pitt” have enough similarity that a lawsuit brought by the widow and estate of “ER” creator Michael Crichton alleging “The Pitt” is an unauthorized reboot can move forward.
A three-judge panel from California’s 2nd District Court of Appeal ruled unanimously on Wednesday that the trial court judge was correct to reject a motion to throw out the case from “The Pitt” production company Warner Bros. Television, which also produced “ER.” But the judges dismissed Noah Wyle – the star of both shows and a producer on “The Pitt” – as a defendant along with two other producers who worked on both series.
The lawsuit is a clash between the makers of multiple Emmy-winning TV series that were each among the most important and acclaimed shows of their eras.
Crichton, the author of “Jurassic Park” and many other novels that became hit movies and TV shows, wrote the pilot script for “ER,” the NBC show about a Chicago emergency room that redefined the medical drama genre and drew tens of millions of weekly viewers in its run from 1994 to 2009.
The lawsuit brought by Sherri Crichton was filed two years ago, before a single episode of “The Pitt” had aired. The HBO Max series that shows a real-time day in the life of a Pittsburgh emergency department has since become perhaps the most lauded series in television, winning two Emmys for best drama for its first two seasons and two best actor Emmys for Wyle.
Warner Bros. Television and CBS News have the same parent company following last month’s acquisition of Warner Bros. Discovery by the parent of CBS News, which was known at the time as Paramount Skydance and is now called Skydance.
Along with more technical legal issues, the judges had to decide whether the shows had at least the minimal similarity that would give the lawsuit enough merit to move forward. Their decision applies only to this early legal challenge and they did not rule on whether the plaintiffs had proved the “The Pitt” is derivative of “ER.”
The court agreed with the plaintiff that “both shows provide commentaries on the healthcare system; they focus specifically on the emergency room and the difficult conditions under which the medical staff operates. Both shows take place, with little exception, in the emergency room, as opposed to other medical shows which track patients as they move out of the emergency room, or indeed never enter it.”
The opinion also said that both feature “very fast pacing, and reactions to multiple overlapping crises. The fast-paced dialogue is (to a layperson) frequently incomprehensible shorthand and jargon, lending an air of immediacy and accuracy.”
Warner Bros. Television said in a statement that “WBTV continues to maintain that ‘The Pitt’ is an entirely original series and that the claims against it are without merit. Nothing in the Court of Appeal’s decision establishes otherwise, and WBTV looks forward to defending its position as the case proceeds.”
The defendants argued in legal filings that the shows have “generic similarities” that would exist in “any dramatic story” that features “overworked doctors and staff.”
The panel also unanimously dismissed as defendants Wyle, John Wells, who created “The Pitt” and worked on “ER,” and R. Scott Gemmill, a “Pitt” executive producer who also worked on both shows. The judges found there was no evidence the three men knew the provisions of the Crichton contract that the lawsuit alleges they interfered with.
Sherri Crichton’s lawsuit alleges “The Pitt” is a rebranded version of an unauthorized “ER” reboot that she had rejected.
Her husband had secured a coveted “frozen rights” provision in his contract for the series, prohibiting Warner Bros. from proceeding with any sequels, remakes, spinoffs or other productions derived from “ER” without Crichton’s consent, or his estate’s consent after his death from cancer in 2008.
After the production company could not reach an agreement with Sherri Crichton over a proposed “ER” reboot, the TV studio proceeded to develop and produce a series based on the same premise without permission, the lawsuit alleges.
