Crichton Estate Clears a Minimal-Merit Bar on The Pitt, Not a Verdict
The Nov. 4 opinion says the estate's claim over ER and The Pitt has minimal merit against Warner Bros. Television alone. It does not say the show copied ER, and it sets no trial date.
Several headlines say the "Pitt" lawsuit "heads to jury trial." The opinion behind them does not say that. The word "jury" turns up only inside a footnote, number 7 on page 18, in a passage about who would be watching the two shows.
What the court did say fits in one sentence. On Wednesday, Nov. 4, a three-judge panel of California's Second District Court of Appeal, Division Three, held that Roadrunner JMTC LLC, the company controlled by Sherri Crichton, widow of "ER" creator Michael Crichton, showed "minimal merit" in its claim that HBO Max's "The Pitt" breaches a 1994 agreement over "ER," so its suit against Warner Bros. Television may go on.
That is a gate, not a verdict. "Similar enough" is the headlines' phrase, not the court's. No court has found that "The Pitt" copied "ER," and no copyright infringement claim is in the case; it is a breach-of-contract suit.
The 33-page opinion, in Roadrunner JMTC LLC v. Warner Bros. Television, No. B344915, was unanimous. Curtis E.A. Karnow, a retired San Francisco Superior Court judge assigned to the panel, wrote it, joined by Presiding Justice Rashida A. Adams and Justice Mark K. Hanasono. It affirms Judge Wendy Chang's denial of Warner's motion as to Warner Bros. Television and, as Bloomberg Law reported, orders the claims against everyone else dismissed. The biggest fact is that the case now continues against one defendant.
The test comes from copyright law, not the contract
The motion was filed under California's anti-SLAPP statute, a fast way to ask a court to end a suit that targets speech. The live question was whether the estate had shown "minimal merit," meaning evidence enough for a prima facie case, one that stands up on its face.
The opinion calls such motions "brought early in a case and usually decided without the benefit of discovery," and says the court must "draw 'every legitimate favorable inference'" from the plaintiff's evidence. Warner's rebuttal is not weighed. A loss here means, in plain terms, not obviously meritless, a long way from "probably right."
The contract word at issue is "derivative." Paragraph 10 of the 1994 Agreement freezes "any and all sequels, remakes, spin-offs and/or other derivative works," with "mutual agreement between Crichton, Amblin and Warner Bros. being necessary in order to move forward." Spielberg's Amblin is not a party to the suit.
What "derivative" means is the whole fight. Warner reads it in its narrow copyright sense; the estate argues for a broader everyday one. The court did not choose. It wrote that "even adopting the more stringent definition of 'derivative' urged by defendants, Roadrunner has made out a prima facie case," so it "need not discuss" the estate's alternative. That choice is left open on page 18.
Instead the parties "assume, as we do," that a work substantially similar to another is a derivative of it, and the panel borrowed Ninth Circuit copyright cases because they were briefed. A contract case is running on copyright vocabulary because both sides brought it there.
That test has two halves. The extrinsic half is an objective comparison of "plot, themes, dialogue, mood, setting, pace, characters, and sequence of events," after filtering out stock features. The intrinsic half asks how an ordinary audience feels about the "total concept and feel," and is "reserved exclusively for the trier of fact."
Only the first half was really examined; the parties "have not discussed the intrinsic branch." And the motion assumed the claims concern only the two pilots (page 2). Two scripts, one half of one test and a second, selection-and-arrangement route, one possible meaning of one word.
What the court counted as alike
On pages 21 and 22 the court's list reads almost like a pitch. Both shows sit, "with little exception, in the emergency room." The dialogue is, "to a layperson," "frequently incomprehensible shorthand and jargon, lending an air of immediacy and accuracy." Doctors break off one patient for another, "layering on crisis after crisis." "The doctors and nurses are exhausted; there are emotional outbursts." And "each includes a young doctor, fresh from medical school and incompetent."
A critic could tick most of those boxes for other hospital dramas, and Warner says as much. It calls them "generic similarities" common to "any dramatic story involving emergency room doctors," and argues it "cannot be that all shows set in an emergency room are derivative of ER." Its 2024 motion called the idea of a hospital show "hardly unique," Variety reported.
The court gave that argument its due, then set it aside for now. "Defendants' position has some strength," Karnow wrote. "But their approach ignores the specific elements noted above by collapsing them under the rubric of high-level abstractions." The line between idea and expression is a matter of degree, on what it called a "ladder of abstraction," and: "Making favorable inferences in Roadrunner's favor, as we must, we find the details here suffice for a prima facie case."
Warner had argued the shows have "different characters, in different decades, in different hospitals, treating different emergencies, with no shared iconography or plot." In footnote 10 the court answered: "On anti-SLAPP motions, we review only for a prima facie case, not whether that case can be rebutted." Warner's differences were not rejected. They were not weighed.
The estate lost its evidence on the word, and won its expert
The trial court should have sustained objections to the declaration of Steven Katz, who drafted the 1994 clause, because a party's "undisclosed intent or understanding is irrelevant to contract interpretation." The opinion calls his declaration "the sole basis" for the trial court's conclusion that "derivative" did not carry its copyright meaning. Parts of an industry expert's declaration, by Todd Leavitt, fell too.
Howard Rodman, a University of Southern California professor and past president of Writers Guild of America West, got his declaration in on appeal. "The Rodman opinion was admissible," the court said. His declaration said "ER" stood out "not because it was a hospital drama, but by reason of the details," and that the two pilot scripts read like episodes "of a single continuing series."
That split is the quiet center of the ruling. The estate's best evidence on what the contract word means is out, so its broader reading has less to stand on. Its best evidence on how the shows compare is in, and that is what carried the pilots through the gate.
Only Warner Bros. Television is left to defend
The interference claim, an accusation that someone knowingly induced a breach of a contract, failed against five defendants: WarnerMedia Direct, LLC, which "assertedly airs The Pitt"; executive producer John Wells and his company, John Wells Productions; star Noah Wyle; and R. Scott Gemmill, the announced showrunner. They went out on knowledge, not on similarity.
Only Wells and his company "concededly knew of the agreement." The estate argued that being served with the complaint made the others aware, which the court called "a peculiar argument": "Evidence that is equally consistent with two conflicting propositions is not evidence of either one." A Wells email "implicitly acknowledges that Sherri Crichton can—and apparently has—invoked the freeze clause. But it does not suggest that Wells (or JWP) made The Pitt knowing, or having a basis to know, that it would violate the freeze clause."
The result, defendant by defendant:
| Defendant | Claim | Result on Nov. 4 |
|---|---|---|
| Warner Bros. Television | Breach of the 1994 Agreement; breach of the implied covenant of good faith | Anti-SLAPP denial affirmed; both claims continue |
| John Wells and John Wells Productions | Intentional interference with the contract | Dismissed; no evidence they knew The Pitt would violate the clause |
| Noah Wyle | Intentional interference with the contract | Dismissed; no showing he knew the contract's terms |
| R. Scott Gemmill | Intentional interference with the contract | Dismissed; no prima facie case on knowledge |
| WarnerMedia Direct, LLC | Intentional interference with the contract | Dismissed; no prima facie case on knowledge |
Footnote 11 sets the limit. "We can imagine a contract which very broadly barred the defendants from making, for example, any show featuring an emergency room; if they knew of those terms and went ahead with The Pitt, we'd infer the element of intentional interference. But Roadrunner doesn't contend the freeze clause is so broad."
Credit, legacy and the money nobody has counted
The implied-covenant claim against Warner Bros. Television survives on a softer ground: benefits Michael Crichton could reasonably have expected. The court wrote that "on the present record the credit of authorship and legacy may not look like a breach of the 1994 Agreement, but it plausibly qualifies as a benefit Michael Crichton reasonably would have expected from that agreement." Sherri Crichton's declaration says the suit seeks, in part, an "appropriate credit" for Michael in promoting and distributing "The Pitt."
"ER," which grew from Crichton's 1974 script and ran on NBC for 15 seasons, is the property at stake. He died in 2008, 18 years before this ruling.
The money is another matter. The opinion contains no dollar amount, and no damages figure has been publicly established. An estate spokesperson said in August 2024 that Warner was seeking "to boost the more than $3 billion profit it has already earned from his creation," a claim from one side, not a number a court has weighed. Warner Bros. Discovery is also the subject of a Paramount merger that the Justice Department cleared in June, though nothing reported ties that to this suit.
Discovery first, then a hearing in January
Sherri Crichton said she looks forward "to discovery and to our case, which affects writers, creators, and their families and estates, being presented to a jury." The next hearing, Rolling Stone reported, is set for Thursday, Jan. 21, 2027, back in Chang's courtroom. No trial date has been reported.
Variety was careful: whether "The Pitt" is a derivative work of "ER" "could ultimately be up to a jury to decide unless the parties reach a settlement before it gets to that point." A jury is one possible endpoint, and so is a settlement.
ABA Journal's account of the argument on Tuesday, Sept. 8, says Karnow "expressed some skepticism over whether Warner Bros.' argument was appropriate" and that the question "boils down to whether the similarities qualify as derivative." The ruling came 57 days later.
As of Friday morning, Nov. 6, no post-ruling statement from Warner Bros. Television had been found.
Because the opinion is headed "NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS," it binds only this case and cannot be cited as precedent, with the exceptions California Rules of Court rule 8.1115(b) lists. In the PDF, page 18 shows the meaning left open, pages 21 through 24 the similarities, pages 28 through 32 the dismissals.
After the trial judge's ruling in February 2025, Warner Bros. Television told TheWrap: "The judge has not decided any of the claims in this case. She simply ruled that the case will proceed." The appeals court has now said much the same, and on Jan. 21 the case goes back to Chang.
