Noah Wyle’s wildly popular hospital drama The Pitt is “not derivative” of his former show ER, so a judge’s ruling last February that allowed a breach of contract lawsuit to proceed against Warner Bros. TV, Wyle, and his co-producers sets a “terrible precedent” and should be overturned, a new appeal brief argues.
Wyle and his co-defendants filed their lengthy brief in California’s Second Appellate District minutes before the 11:59 p.m. deadline Monday. Over 71 pages, they double down on their position that The Pitt is an “original and innovative” drama that’s “intentionally different” from ER in all the ways involving protectable intellectual property. They allege Sherri Crichton, the widow of ER creator Michael Crichton, has no viable evidence supporting her claims that their HBO Max show violates a 1994 contract between Crichton and WBTV. So, they claim, the lower court judge “erred” in rejecting their prior dismissal motion, known as an anti-SLAPP. For her part, Crichton claims the 1994 contract states that any sequels, remakes, spin-offs, or other “derivative works” linked back to ER would require “mutual agreement” from all parties, including Crichton’s estate, before reaching viewers.
“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,” the new appeal brief obtained by Rolling Stone reads. “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.”
In her lawsuit filed Aug. 28, 2024, Crichton accused WBTV of breaching the 1994 contract. She further accused Wyle and his production team of contract interference. The defendants fought back, saying that when they tried but couldn’t reach an agreement with Crichton on terms for a proposed spin-off, they decided to cut ties and create something entirely new. With their anti-SLAPP motion, they asked the court to reject the lawsuit at its earliest stage on the basis that it was targeting their right to free speech with frivolous claims. When the judge sided with Crichton, saying the lawsuit had shown enough “minimal merit” to at least proceed to discovery, the defendants launched their appeal, placing the underlying case on pause.
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The new Monday filing gives the first detailed glimpse at the defendants’ appeal arguments. They say if Crichton has her way, “the highly resonant, award-winning, cultural phenomenon that is The Pitt would not exist.” They claim the widow “demanded many millions of dollars in connection with the new ER series – well above industry standard rates, and more than WBTV was willing or able to pay for a series in its first year,” so they were “unable to reach an agreement.” Once negotiations failed, according to the filing, showrunner R. Scott Gemmill, who previously worked on ER, wrote a new script that “did not use or have any connection to ER intellectual property.”
The filing notes that The Pitt takes place in the emergency department of a hospital in Pittsburgh, while ER was set in Chicago. The Pitt also is based on a completely new cast of characters, and each of its one-hour episodes corresponds with a single hour of a 15-hour emergency department shift, “a concept never before used in a medical drama,” the appeal states. While ER was more “soapy,” with storylines following characters outside the hospital, The Pitt is “more focused on serious issues plaguing the modern medical field, and the characters almost never leave the emergency department,” the filing argues. “Whereas ER was a music-driven show, The Pitt has no music score,” it adds.
“The mere fact that some defendants thought about making a show that would have been based on ER if it had been made does not prove that the different show they ultimately did make is also based on ER,” the filing argues. “The only evidence in the record was that defendants wrote The Pitt to be intentionally different from ER, and other medical dramas.”
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And while it was true the defendants shared a script treatment for a possible ER reboot that proposed episodes transpiring in real-time and plot lines addressing the aftermath of COVID, “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 says. “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. The right to prevent production of ‘derivative works’ of ER does not give plaintiff ownership over Gemmill’s own original ideas.”
The appeal calls the lawsuit “baseless” and accuses Crichton of “misusing the judicial system to try to shut down important speech because [she] couldn’t reach a deal she liked, even though The Pitt does not use a single protected element from ER.”
In asking the appeals court to overturn the trial court’s ruling, lawyers for the defendants wrote that the prior judge failed to apply the “well-settled meaning” of “derivative works” under copyright law. They say that legal definition protects elements such as a “sequence of events” and “the relationships between the major characters,” but it doesn’t place entire genres or basic plot concepts off-limits to others.
“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 appeal submitted by Theodore J. Boutrous, Jr., lead lawyer for WBTV, Wyle, and the other defendants states. “The trial court’s order should be reversed.”
Robert N. Klieger, the lawyer representing Sherri and Crichton’s estate, offered a short comment Wednesday in response to the appeal filing. “There is nothing new from Warner Bros. in this filing. Instead, it’s just a rehash of arguments the trial court has already soundly rejected,” he said in an email to Rolling Stone.
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“Sherri Crichton was thrilled that the original team behind ER wanted to do a reboot and was shocked when Warner Bros. abruptly broke off negotiations and announced The Pitt – a carbon copy of the ER reboot that was pitched to her,” a spokesperson for Crichton said in a statement last February. “The Crichton estate looks forward to presenting its case to a jury and is confident it will prevail.”
The estate will have an opportunity to oppose the new appellate brief before a possible hearing and decision from a panel of judges that could take many months. In the meantime, Season Two of The Pitt is set to premiere in January 2026.
