‘The Pitt’ producers urge California appeals court to reject ‘ER’ lawsuit

Producers of “The Pitt” urged a California appeals court to overturn a ruling allowing Michael Crichton’s estate to pursue claims the medical drama borrowed heavily from “ER.”LOS ANGELES (CN) — Responding to a lawsuit by the estate of the late novelist Michael Crichton, an attorney representing the producers of the acclaimed medical drama “The Pitt” told a California appeals court the show is a unique work, unlike any other TV series, that cannot be sued on free speech grounds.The estate holds the rights to the popular medical drama, “ER,” which it says Warner Bros.’ producers borrowed heavily from to create “The Pitt” after negotiations with Sherri Crichton, the novelist’s widow, broke down in 2023. The estate sued producers over breach of contract.The producers filed an anti-SLAPP motion, a legal tactic used to dismiss frivolous litigation against protected speech, but Los Angeles Superior Court Judge Wendy Chang denied the motion.Attorney Theodore Boutrous, representing the producers, asked a three-judge panel in the California Courts of Appeal to reverse that decision.“‘The Pitt’ is a phenomenal success, precisely because it’s such an original, groundbreaking work,” Boutrous argued. “It’s lightning in a bottle.”A different version of the show was originally intended as a spinoff of “ER,” but the Warner Bros.’ producers abandoned that concept after they did not get the approval from the Crichton estate, Boutrous continued.“They wanted to focus on the issues facing contemporary American society, like opiate addiction, mental health issues, mass shootings and in particular, the long Covid tale, and how that affected healthcare industries,” he said. “‘The Pitt’ includes elements that are revolutionary. In particular, the fact that the entire 15 episode series covers one 15-hour emergency shift, and so each hour of the show is a real time depiction of what happens in an emergency room. It was completely new, and it makes this a completely original work.”The shows share similarities because they are part of the same genre, Boutrous said. He accused the plaintiffs of having never watched the show before filing the lawsuit, arguing its first season wasn’t released until after the lawsuit was filed in 2024.Boutrous argued “The Pitt” would have had to borrow from the plot development, character traits, music, tone, and aesthetics in a manner that lifts from ER under a selection and arrangement test.“That just doesn’t exist here,” he said. “This is exactly the kind of case that deserves a quick dismissal, because it’s intruding on creative expression on speech.”Judge Curtis Karnow, a San Francisco Superior Court judge who was sitting in pro tem, expressed some skepticism over whether Warner Bros.’ argument was appropriate at this stage.“That may win the trial, no question about it,” he said. “At this procedural stage, it’s not whether there are differences — there are always going to be differences, however similar they are, there’s going to be an unlimited number of differences that can be pointed to.”The question is whether the similarities qualify as derivative, Karnow said.Robert Klieger, representing Roadrunner JMTC, the successor to the Crichton estate, disputed the producers’ characterizations of “The Pitt.”Klieger pointed to the negotiations between the show producers and the Crichton estate as evidence of breach of contract.After the estate refused to approve an “ER” spinoff, the show producers simply stripped the “ER” branding from the show to pass it off as something original when it was not, he argued.The shows include various connections to each other, including their cast and production team. Actor Noah Wyle, who is a defendant in the lawsuit, played Dr. Carter in “ER” and now plays Dr. Robby in “The Pitt.”“They basically changed Dr. Carter’s name to Dr. Robby, changed Chicago to Pittsburgh, and were carrying forward with exactly the same project they’d been negotiating with Roadrunner for the prior 10 months,” Klieger argued. “An inference can be drawn based on that. I think, ultimately, as we get more discovery, there will be a showing that there was not only knowledge that this was substantially certain to interfere, but a direct design to circumvent the approval provision.”He also accused the show producers of borrowing from similar plot elements in “ER” as well as fast-paced dialogue scenes.“It is the same creative fabric,” he argued.Klieger asked the panel to affirm the lower court’s ruling.In addition to Karnow, the panel included Presiding Justice Rashida Adams and Justice Mark Hanasono.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads