Does the term "legal certainty" mean a heightened burden of proof in a medical malpractice action?

None of the other cases in the line of cases referred to by Attorney mentioned Evidence Code 115, used the word "preponderance," or used the phrase "more likely than not." Furthermore, none of the cases (1) recognized the general rule and exception in Evidence Code section 115 and (2) explicitly undertook the analysis usually employed when considering whether to alter the burden of proof from the preponderance of the evidence standard. As a result, none of the cases explicitly state the appropriate burden of proof is the "legal certainty" standard and explain how that standard fits within the framework of the three common standards of proof listed in Evidence Code sections 115 and 502. These omissions lead us to conclude the cases using the term "legal certainty" are not authority applying a heightened burden of proof to the elements of causation and damages in a legal malpractice action. ( Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134, 171 Cal.Rptr.3d 189, 324 P.3d 50 [cases are not authority for propositions not considered or decided].) Consequently, we conclude the ambiguous term "legal certainty" simply means the level of certainty required by law, which is established by the applicable standard of proof.

D. Preponderance of the Evidence Standard