No date for arguments has been set yet at the California court of appeals for the prolonged and manifold clash between the estate of ER creator Michael Crichton and HBO Max’s Noah Wylie-led The Pitt over if the latter is a rip-off of the former, but the stage is now certainly set.
To that, in a final submission late last night to the Golden State’s Second Appellate District, Division 3 that completes briefing, Gibson Dunn lawyers for Team Pitt want a 2025 lower court ruling in widow Sherri Crichton’s favor overturned, and the whole matter sent to the litigation morgue. “Plaintiff’s expansive interpretation of the term ‘derivative works’ …so broadly as to impede Defendants’ ability to develop their own original ideas that have nothing to do with ER, simply because those ideas happened to be connected at one point in time with an abandoned ER reboot,” declares the appellants’ rely brief submitted late Monday.
While it may seem redundant at this point as the Emmy and Peabody Award winning medical drama from Warner Bros TV, John Wells, R. Scott Gemmill and more lunges towards a third season debut in January 2027, the nearly two-year-old legal action by Sherri Crichton, on behalf of her acclaimed and sadly deceased husband’s Roadrunner JMTC still looms over The Pitt’s future — financially if nothing else if it ultimately goes in her direction.
Michael Crichton, ‘ER’ and John Wells
Getty Images/Everett
In short, Mrs. Crichton alleges The Pitt is “derivative” of ER (which was produced by Wells and starred Wylie, among others from 1994 to 2009) and was only created because a deal between the parties to reboot the NBC medical drama fell apart. Under a particular reading of an agreement from the Clinton Era with Jurassic Park author Crichton, he or his representatives have the final say, and you can’t play cute and change the location from Chicago to Pittsburgh to get around that.
Sherri Crichton took the gang to court in August 2024 in a breach of contract complaint. An attempt by The Pitt team to have the matter gutted based on the Golden State’s anti-SLAPP statutes flounder in early 2025 — which brings us all to the appeals court.
The trial court’s improper dilution of the anti-SLAPP standard necessarily informed its denial of Defendants’ anti-SLAPP motion …all because the trial court concluded, in some general sense, that Plaintiff’s claims were ‘not totally meritless,’” Gibson Dunn’s Ilissa Samplin and Ted Boutrous Jr. proclaim of that 2025 decision by LASC Judge Wendy Chang. “Had the trial court applied the correct standard and held Plaintiff to its burden, it would have granted Defendants’ motion.”
For a WBTV that is part of the Warner Bros Discovery package now being sold to David Ellison’s Paramount Skydance for $111 billion with The Pitt as a distinct jewel in HBO CEO Casey Bloys‘ crown, Tuesday’s borderline exhaustive brief also brings us to some pretty sharp and surgical language to the table.
“Even if the contract were ambiguous (it isn’t), and even if Plaintiff’s reading were not patently absurd (it is), Plaintiff’s claim would still fail because Plaintiff fails to carry its burden of presenting evidence that the Freeze Provision should be interpreted in the manner it proposes,” attorneys Samplin and Boutrous Jr. say of the clause in the 1994 Crichton agreement that could have possibly put the brakes on the new series.
They add: “Nothing in the record suggests that the parties to the 1994 Agreement intended to give Mr. Crichton approval rights over all future original ideas—not found in ER itself—that anyone would happen to come up with when thinking about a proposed ER reboot. The contract gave Mr. Crichton approval rights with regards to ‘publishing relating to ER,’ not shows that have nothing to do with ER.”
Welcome to the fine, fine print Dr. Robby — have a nice shift everybody.
