Medical TV dramas ER and The Pitt are similar enough for lawsuit to go ahead, appeals court finds

A Californian court has found award-winning medical drama The Pitt is similar enough to earlier TV hit ER to allow a lawsuit filed by the widow and estate of Michael Crichton.

A three-judge panel from California Second District Court of Appeal unanimously rejected an argument from The Pitt production company Warner Bros, which also produced ER, that the lawsuit should be dismissed under free speech laws.

“There are clear and numerous similarities between ‘The Pitt’ and ‘ER,’” the court wrote.

“Both shows provide commentaries on the healthcare system; they focus specifically on the emergency room and the difficult conditions under which the medical staff operates. Both shows take place, with little exception, in the emergency room, as opposed to other medical shows which track patients as they move out of the emergency room, or indeed never enter it.”

They also cited the plot line of “a young doctor, fresh from medical school and incompetent.”

It said both feature “very fast pacing, and reactions to multiple overlapping crises. The fast-paced dialogue is (to a layperson) frequently incomprehensible shorthand and jargon, lending an air of immediacy and accuracy.”

But the judges dismissed Noah Wyle — the star of both shows and a producer on The Pitt — as a defendant along with two other producers who worked on both series.

The lawsuit is a clash between the makers of multiple Emmy-winning TV series that were each among the most important and acclaimed shows of their eras.

Crichton, the author of Jurassic Park and many other novels that became hit movies and TV shows, wrote the pilot script for ER, the NBC show about a Chicago emergency room that redefined the medical drama genre and drew tens of millions of weekly viewers in its run from 1994 to 2009.

The lawsuit brought by Sherri Crichton was filed two years ago, before The Pitt had aired. The HBO Max series that shows a real-time day in the life of a Pittsburgh emergency department has since become perhaps the most lauded series in television, winning two Emmys for best drama for its first two seasons and two best actor Emmys for Wyle.

Mrs Crichton and her husband’s estate said producers “simply moved the show from Chicago to Pittsburgh, rebranded it The Pitt, and ploughed ahead without any attribution or compensation for Crichton and his heirs”.

Along with more technical legal issues, the judges had to decide whether the shows had at least the minimal similarity that would give the lawsuit enough merit to move forward. Their decision applies only to this early legal challenge and they did not rule on whether the plaintiffs had proved the The Pitt is derivative of ER,

Warner Bros said in a statement that “WBTV continues to maintain that ‘The Pitt’ is an entirely original series and that the claims against it are without merit. Nothing in the Court of Appeal’s decision establishes otherwise, and WBTV looks forward to defending its position as the case proceeds.”

The defendants argued in legal filings that the shows have “generic similarities” that would exist in “any dramatic story” that features “overworked doctors and staff.”

The panel also unanimously dismissed as defendants Wyle, John Wells, who created The Pitt and worked on ER, and Scott Gemmill, a Pitt executive producer who also worked on both shows. The judges found there was no evidence the three men knew the provisions of the Crichton contract that the lawsuit alleges they interfered with.

Mrs Crichton’s lawsuit alleges The Pitt is a rebranded version of an unauthorised ER reboot that she had rejected.

Her husband had secured a coveted “frozen rights” provision in his contract for the series, prohibiting Warner Bros. from proceeding with any sequels, remakes, spin-offs or other productions derived from ER without Crichton’s consent, or his estate’s consent after his death from cancer in 2008.

After the production company could not reach an agreement with Mrs Crichton over a proposed ER reboot, the TV studio proceeded to develop and produce a series based on the same premise without permission, the lawsuit alleges.

Mrs Crichton said she had learned of plans for a reboot being made without her knowledge in 2022.

“I was shocked,” Ms. Crichton said in a declaration to the court.

“Although development had clearly begun long before, no one had mentioned anything to me. Even Mr Wells was not asking for my opinion or approval. He was simply giving me a heads-up about an imminent press announcement.”