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104(a)(2) because the * * * [personal injury] language could
easily be included in every complaint, even if such a claim were
only a ‘throwaway’ claim”).
In closing arguments at the third jury trial, petitioner’s
counsel characterized petitioner’s injuries as damages suffered
“by reason of giving up his businesses”; petitioner’s counsel
made no argument for compensatory damages for any other type of
injury. The jury instructions contain no reference to any
injuries other than economic harms. The trial court instructed
the jury in relevant part as follows:
Therefore, if you find that * * * [petitioner] has been
damaged, you should award * * * [petitioner] an amount
of damages equal to the difference in value between
what * * * [petitioner] gave USI and the value of what
he received from USI in return.
Standing alone, the fact that damages are measured in
economic terms does not compel the conclusion that the injury
redressed is economic rather than personal, for economic loss may
be the best available measure of a personal injury. Bent v.
Commissioner, 835 F.2d 67, 70 (3d Cir. 1987), affg. 87 T.C. 236
(1986). In the case at hand, however, we believe that the harm
which was measured by economic factors was in fact an economic
injury. See Kightlinger v. Commissioner, supra (concluding that
“economic factors were not merely used as a yardstick to measure
the extent of the injury; rather, they were the harm for which
petitioner received his compensation”).
In sum, petitioners have failed to prove that the
compensatory damages awarded on petitioner’s common-law fraud
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