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within the meaning of section 104(a)(2). None of the other
injuries alleged in the complaint is a personal injury: plant
damage, lost profits, or loss of going-concern value.
Petitioners do not claim that the cause of injury, defective
manufacture of an agricultural chemical, necessarily results in a
personal injury within the meaning of section 104(a)(2).
Petitioners did not particularize their claim of injury to
business reputation, so we might work backwards to a claim of
defamation or some other “dignatory” or nonphysical (but
personal) tort. The plant damage averred by petitioners no doubt
injured their business and, consequentially, their business
reputation. Nowhere in the complaint, however, is there any
claim of personal injuries as the term is used in section
104(a)(2).
In addition to examining the release and the complaint, we
have considered the mediation that preceded settlement, as well
as the settlement negotiations between du Pont and petitioners.
We have found no evidence of a claim for personal injuries within
the meaning of section 104(a)(2). As part of the mediation,
petitioners filed a statement with the mediators (the statement).
The statement recites petitioners’ injuries in much the same
terms as the complaint (i.e., a discussion of plant damage and
the destruction of the nursery business). None of petitioners’
expert reports accompanying the statement, including the expert
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