Warner Bros TV is making another incision to stop the legal exhumation of The Pitt, and whether or not the Noah Wyle starring Emmy winning medical drama is a rip-off of ER from going to trial.
“There was no evidence that The Pitt was made by copying from or using ER, so there was no evidence that The Pitt was ‘derivative’ of ER—even if the copyright test for a ‘derivative work’ does not apply,” declares an appellants’ opening brief filed late Tuesday by WBTV, Wyle, John Wells, R. Scott Gemmill and others.
“This case provides a quintessential example of why anti-SLAPP exists,” the filing states, hoping to see LA Superior Court ruling from earlier this year overturn or the whole case thrown out. “Plaintiff is misusing the judicial system to try to shut down important speech because Ms. Crichton couldn’t reach a deal she liked, even though The Pitt does not use a single protected element from ER,” the document from a legion of Gibson Dunn lawyer adds of Sherri Crichton on behalf of John Michael Crichton Trust’s Roadrunner JMTC.
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Set to kick off its second season in January 2026 on the now HBO Max, the Gemmill created and ER alum Wells EP’d The Pitt was hauled into court by the widow Crichton back in August 2024 in a breach of contract action. Hoping to stop The Pitt from ever seeing the light of day, the estate of the ER, Jurassic Park, Westworld, Twister, and The Andromeda Strain creator essentially claimed that the Pittsburgh, PA-set series came to life out of the ashes of a failed negotiation to reboot the 15-season running NBC medical hit.
From the drop, WBTV and the other defendants have insisted that the January 2025 premiering Pitt was its own baby, and a simple case of creatives moving on once the ER reboot went south (money being the sticking point for the estate, as it almost always is).
In February, WBTV, Wyle, Wells and gang were handed the short stick when LASC Judge Wendy Chang ruled against the defendants’ anti-SLAPP motion. “Under anti-SLAPP standards, the Court cannot find Plaintiffs claims to be totally meritless,” she wrote, opening the gate to for the case to head to what would likely be a messy and bloodstained trial.
This week, as Warner Bros Discovery is now formally up for sale, The Pitt crew sought to stop the bleeding, so to speak
“This lawsuit is an effort to prohibit lifelong artists—the writers, producers, and actor named as Defendants—from exhibiting a groundbreaking and Emmy-award-winning TV series that speaks directly about some of today’s most pressing issues,” the nearly 70-page appeal brief states.
“The lawsuit is baseless: The Pitt is no more a ‘derivative work’ of ER than is any other hospital drama,” it adds. “The Pitt involves different characters, a different plot, different themes, a different setting, and a different storytelling device (with each episode of The Pitt occurring in real time over a single hour, unlike ER, where each 45-minute episode covered, at minimum, an entire day-long shift). The shows’ only similarities are (1) they are both medical dramas set in emergency departments—like dozens of other shows—and (2) they share a single actor, Defendant Noah Wyle, playing different characters.”
Aware that that comparison may actually work on several levels for the Crichton side of this dust-up too, WBTV’s Gibson Dunn team, led by Ted Boutrous Jr., also argue to California’s Second Appellate District, Division 3, that there are much larger issues of creativity and the Constitution at stake.
“Plaintiff argued The Pitt was derivative of ER because The Pitt shared ideas with the reboot script treatment— like the episodes transpiring in real-time and addressing the aftermath of COVID. But these concepts did not come from ER— they were new ideas proposed by Defendant R. Scott Gemmill in a reboot treatment he created over a decade after ER last aired,” the appeal filing exclaims. “There is no legal reason why he would not have been free to incorporate those same original ideas into a different project, The Pitt, after the proposed reboot fell through.”
And then, there’s the five alarm declaration: “Plaintiff’s attempt to use a narrow contract term to seize control over any emergency medical drama Defendants might work on is an outright assault on free expression, and a terrible precedent for California’s film and television industry. If this suit is not dismissed pursuant to Defendants’ anti-SLAPP motion, The Pitt’s creative team will be forced to do their work under the threat of liability and with the constant distraction and expense of litigation and discovery.”
The Crichton Trust’s lawyer Robert Klieger wasn’t so alarmed, when contacted by Deadline Wednesday. “There is nothing new from Warner Bros. in this filing,” the Hueston Hennigan attorney said. “Instead, it’s just a rehash of arguments the trial court has already soundly rejected.”
While The Pitt’s second season debut has been set, but no date has been penciled in yet for either a Pitt trial or when this appeal could be argued.