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 today, softly.
In a hearing this morning downtown in LA Superior Court, Judge Wendy Change issued what she called a “soft tentative” denying WBD’s anti-SLAPP motion. This leaves everything is a state of judicial purgatory, at least until something more solid comes from the bench.
Today’s hearing before Judge Chang was the first major courtroom faceoff 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 all been named as defendants in the matter.
With a number of pointed questions during oral presentations from lawyers on both sides, Judge Chang made it pretty 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 Judge Chang’s queries to Crichton’s team expressed out and out skepticism sometimes of their perspective.
As for when a final ruling could come, the LASC judge cited a busy schedule and offered no specifics.
“We are encouraged by the Court’s soft tentative and look forward to the final ruling,” said Robert Klieger, Crichton’s primary lawyer to Deadline. after the session ended. Warner Bros. Discovery could not be reached for comment when reached out to by Deadline. If they do respond, this post will be updated.
With all that, all sides admit that there had been extensive discussions with WBTV and Wells with 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 that the producers say they had been working on before negotiations with Sherri Crichton started, the Gemmell created The Pitt launched on MAX on with two episodes on January 8 with star/EP Wyle as Dr. Michael “Robby” Rabinavitch.
Within hours of Deadline exclusively revealing Sherri Crichton’s legal action back in August, Warner Bros. Discovery called the claims “baseless.” The David Zazlov 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 attorney for WBD and Pitt principals the initial motion to strike from November 24 last year.
In that reply filing on January 24, WBD, Wells, Wyle and Gemmill’s Ilissa Samplin-led legal team painted a portrait of the dispute in the terms. Terms made all the starker being that with The Pitt’s premiere earlier this month make 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.
Starring Wyle, George Clooney, Eriq La Salle, Sherry Springfield, Anthony Edwards, and Julianna Margulies, the widely acclaimed and widely watched ER ran on NBC from 1994 to 2009.
