Warner Bros. TV Says New Noah Wyle Max Series ‘The Pitt’ Is Not Derivative of ‘ER’

Warner Bros. Television filed a motion to dismiss a lawsuit from the Michael Crichton Estate accusing the company of breach of contract, arguing its upcoming Max medical drama “The Pitt” is not a derivative work of “ER.”

The lawsuit alleged that after a lengthy, years-long negotiation to make a reboot of “ER” that ultimately fell through, WBTV, John Wells, Noah Wyle and R. Scott Gemmill took the concept and reworked it to become “The Pitt,” a drama that follows frontline heroes working in a Pittsburgh hospital. The suit alleges there are only three major differences between the series that was in negotiation and “The Pitt”: the location of the hospital, Wyle’s character name and the estate’s involvement.

However, the studio argued in its motion, filed Monday and obtained by TheWrap, that “The Pitt” is a “completely different show” and that the plaintiff cannot use Crichton’s “ER” contract as “a speech-stifling weapon to prevent defendants from ever making a show about emergency medicine.”

“It would be absurd to interpret the ‘ER’ agreement as prohibiting WBTV from ever again making a medical drama about emergency medicine (and Wyle, who was not even a party to the agreement, from ever starring in one) without Mr. Crichton’s consent,” WBTV wrote. “Nothing in the agreement or the law supports such an extraordinary result.”

Crichton created and executive produced the original “ER,” which ran for 15 seasons from 1994 to 2009. The author and screenwriter died on Nov. 4, 2008 at age 66.

In their filing on the anniversary of his death, WBTV further said that the allegations rely on generic elements shared by numerous shows in the medical drama genre and the fact that both shows have one actor in common. It added that the show’s creation is an exercise of free speech protected by California’s anti-SLAPP law.

“Because the anti-SLAPP law applies, and plaintiff cannot carry its burden to support its claims, the court should strike the complaint in its entirety,” WBTV concluded.

According to the filing, which is partially redacted to avoid revealing plot and character details about “The Pitt,” Gemmill supposedly approached Wells with the original concept for the project in late 2021. Then, after being discussed further in 2022 with Crichton’s representatives, they demanded “many millions of dollars — well above industry standard rates, and more than WBTV was willing or able to pay for a series in its first year.”

“WBTV made substantial monetary offers, but Ms. Crichton stuck to her exorbitant demands. She made many other unreasonable demands too, including that her Season 1 fees be guaranteed regardless of whether the series was
produced,” the filing noted. “The parties were unable to reach any agreement despite the very generous terms offered to Ms. Crichton. WBTV decided to walk away from an ‘ER’-based series.”

Gemmill proceeded to create a new series that has “no connection” to “ER” and does not use its intellectual property, characters, plot, setting or narrative, they added.

“While both series are medical dramas set in a hospital, this concept is hardly unique,” the document stated. “Before ‘ER,’ shows like ‘St. Elsewhere’ told stories about emergency medicine, and since ‘ER,’ numerous shows such as ‘Grey’s Anatomy,’ ‘Chicago Med,’ ‘House,’ ‘The Good Doctor’ and many more have done the same.”

In a statement to media, a spokesperson for Sheri Crichton called the “meritless” motion “a transparent attempt to dodge discovery and prevent the true facts from coming out.” It added that filing the motion on the anniversary of Crichton’s death is “emblematic of the studio’s callousness and utter disregard for Crichton’s legacy.”

“Warner Bros. negotiated with the estate for nearly a year, knowing it could not proceed with its ‘ER’ reboot without the estate’s permission. When those discussions failed, Warner Bros. slapped a new name on the series, changed its location, and proceeded anyway in clear violation of Crichton’s contract,” the statement continued. “The defendants’ last-minute attempt to rebrand their ‘ER’ reboot as ‘The Pitt’ is not fooling anyone. The estate looks forward to presenting its case to a jury and is confident it will prevail.”

A spokesperson for Warner Bros. TV declined to comment.

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