Expert witnesses are often hired to evaluate evidence, offer opinions, and help resolve legal disputes. But what happens if an expert’s recommendations later prove to be ineffective? A recent California Court of Appeal decision addresses that question and clarifies when California’s litigation privilege may protect expert witnesses from lawsuits arising out of work they performed during litigation. Fazel v. Pete Fowler Construction Services (2026).
Although the case arose from a property dispute between neighbors, the court’s reasoning has broader implications for civil litigation, including personal injury cases where expert reports often play a key role in settlement negotiations.
How the Dispute Began
The case began as a dispute between neighboring property owners over water runoff that was allegedly damaging one property.
During the lawsuit, one of the litigants hired a construction expert to inspect the property and recommend repairs. The expert’s recommendations were included in a written report, and the parties relied on those recommendations when negotiating a settlement.
After the repairs were completed, heavy rainfall revealed that the construction expert’s recommendations had not resolved the underlying drainage problem. Instead of suing the neighbor again, the property owner sued the construction company that prepared the expert report, claiming its repair recommendations were defective.
The Key Legal Question Before the Court
The court had to decide whether the construction company could be liable for the ineffective recommendations it made in an expert report prepared during the earlier lawsuit.
The property owner argued that the construction company’s repair recommendations were flawed and that the company was responsible for the additional damage. The construction company, on the other hand, argued that its report was created solely for use in the lawsuit and was therefore protected by California’s litigation privilege.
Why the Court Protected the Expert’s Report Under the Litigation Privilege
The Court of Appeal agreed with the construction company. The court explained that California’s litigation privilege, codified in Civil Code § 47(b), generally protects statements and other communications made during a lawsuit from becoming the basis of a later civil claim.
The purpose of the rule is to allow attorneys, parties, and expert witnesses to participate openly in the legal process without worrying that they will later be sued for what they said or recommended during the case.
Although the privilege most often protects communications, the court explained that it can also extend to work that is closely connected to those communications.
Because the repair recommendations were developed for the lawsuit, included in the expert report, and relied upon during settlement negotiations, the court concluded the litigation privilege protected them.
Why the Property Owner Could Not Sue the Expert After Settlement
The court also explained that the property owner had opportunities during the original lawsuit to question or challenge the expert’s recommendations.
For example, the property owner could have:
- Hired their own expert to review the recommendations
- Negotiated different repair terms before settling
- Continued the lawsuit instead of accepting the proposed settlement
According to the court, those issues should have been addressed before the case was settled—not through a new lawsuit against the opposing expert afterward.
What California’s Litigation Privilege Can Protect
The decision shows that California’s litigation privilege can protect more than testimony given in court. Depending on the circumstances, it may also apply to:
- Expert reports prepared during a lawsuit
- Recommendations included in those reports
- Work performed to prepare those recommendations
- Communications used to help resolve a legal dispute
Whether the privilege applies depends on how closely the conduct is connected to the lawsuit itself.
What Personal Injury Attorneys Can Learn From This Case
Expert witnesses often play a critical role in personal injury cases. Medical experts, accident reconstruction specialists, engineers, and other professionals frequently influence how liability, causation, and damages are evaluated.
This decision reinforces several practical lessons for attorneys:
- Carefully review opposing expert reports before settling a case.
- Retain independent experts when technical opinions are disputed.
- Challenge questionable expert conclusions while the case is still pending.
- Understand that California’s litigation privilege may limit later claims against experts based on work performed during the litigation.
- Verify technical recommendations before incorporating them into a settlement agreement.
Addressing these issues during the original lawsuit is often far more effective than challenging an expert’s work after the case has been resolved.
A Real-World Example of Challenging Expert Testimony
Our personal injury lawyers handled a motorcycle accident case in which the defense relied heavily on an accident reconstruction expert. Rather than accepting those opinions at face value, we carefully examined the defense expert’s flawed assumptions and brought in our own team—including a scene reconstruction expert and medical doctors—to present a complete, evidence-backed picture of the crash.
It reinforces the same lesson reflected in this decision: expert testimony should be thoroughly evaluated and challenged while litigation is still ongoing. For a closer look at that case, read our post about When an Accident Reconstruction Expert Gets It Wrong.
Key Takeaway: Challenge Expert Reports Before the Case Ends
The broader lesson from this decision is that California’s litigation privilege provides broad protection for expert reports and other work prepared as part of a lawsuit. Once those opinions become part of the litigation and settlement process, later lawsuits challenging that work may be barred.
For attorneys, the case serves as a reminder that the best opportunity to evaluate and challenge an opposing expert’s opinions is while the litigation is still pending. Waiting until after settlement may leave significantly fewer options for addressing flawed or unsupported expert testimony.
