Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I send an amendment to the desk on behalf of myself, Senator Craig, Senator Grassley, and Senator Brown, and ask for its immediate consideration.

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. I thank the Chair and yield the floor. Mr. DORGAN addressed the Chair.

Mr. SPECTER. Mr. President, I have sought recognition to comment briefly on a series of hearings scheduled by the Subcommittee on Terrorism, Technology and Government Information of the Judiciary Committee in the wake of Oklahoma City, although one had actually been scheduled in advance. We have so far had hearings on the statutes proposed by the administration and others. We have had a hearing in response to certain groups concerned with the issue of constitutional rights. A hearing is scheduled for this Thursday, May 11, on the so-called mayhem manuals, where you can find out how to make a bomb, and a hearing is scheduled on May 18 on the incidents involving Waco, TX and Ruby Ridge, ID. I have received correspondence from the distinguished chairman of the full committee, Senator Hatch, who raises a question about the timeliness of the hearings and about the jurisdiction of my subcommittee. I have responded to Senator Hatch, and intend to put the correspondence in the Record so it may be available for the public, by noting that the jurisdiction is clear-cut on the subcommittee, both under the authority on terrorism and on governmental information. It is my view, Mr. President, that it is important and the hearings are long past due on what happened at Waco, TX and what happened at Ruby Ridge, ID. There can be no misunderstanding or no question that whatever happened at Waco, TX and Ruby Ridge, ID, that there is absolutely, positively no justification for the bombing of the Federal building in Oklahoma City, OK. But there has been a great deal of concern about whether there has been a candid response by the Government of the United States, and in the congressional oversight responsibility, we should lay all the facts on the table in the interest of full disclosure--let the chips fall where they may. The virtue of strength of a democracy is that we do not cover our mistakes; that if there are errors and if there are problems, we identify them forthrightly. There had been some concern that a hearing on Ruby Ridge, ID might in some way prejudice the investigation by the prosecuting attorney who may intend to bring some charges, perhaps even against Federal officials. I have had an extended discussion with Randolph Day, Esq., the county attorney for Boundary County, who has advised me that he sees no problem in our going forward with hearings by the subcommittee. A number of Senators have made public statements about the importance of having such hearings. Others of my colleagues have discussed the matters with me privately. I do think it is important that hearings proceed and that other Senators and the public be aware of the status of this matter. So I ask unanimous consent that the text of the letter from Senator Hatch to me dated May 8, with my reply to him dated May 9, be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER. I thank the Chair.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. Mr. President, I have sought recognition to comment about the pending legislation on products liability on which there is a cloture vote scheduled for 4 o'clock this afternoon, that is, a vote to cut off debate. As I have expressed in the prior debate, it is my view that it would be appropriate to have reform on product liability, providing the reform is very, very carefully crafted. As I have noted in previous speeches, I have represented both plaintiffs and defendants in personal injury cases. I had one large product liability case, which I litigated many years ago. Actually, it was ultimately settled. But the issue in the case concerning privity and coverage for a passenger in an [[Page S6237]] automobile was widely noted in the law reviews. I have therefore had occasion to do very extensive research in the area, although that was some substantial time ago. I believe that a very key provision for limiting frivolous lawsuits would be to tighten up the current mechanism to give greater authority under rule 11 to the judges who sit on those cases to try to influence or discourage frivolous lawsuits. My reading of the substitute amendment shows that the amendment offered by the distinguished Senator from Colorado, Senator Brown, an amendment which I supported and which I think would be of substantial help in discouraging frivolous litigation, and therefore a provision which I think ought to be in the bill, has been deleted. With respect to the issue of punitive damages, I am very reluctant to see the provisions of the current bill enacted into law, because there are so many cases which have been disclosed in product liability litigation where companies, major companies, have made a calculated determination that it is in their financial interest not to make repairs or changes, because the damages awarded in litigation will be lesser than the costs of making the modifications. Perhaps the most celebrated case--but there are many others like it-- is the Pinto case, where the gas tank was left in a very dangerous position in the rear of the car and resulted in explosions when there was impact, a very common kind of accident in automobile driving, rear- end collisions. As a result of product liability litigation, it was disclosed that there was a memorandum in the files of the defendant company, Ford Motor Co., actually a letter to the National Highway Transportation Safety Administration, in which there was a computation as to what it would cost to pay damages for people injured or killed as a result of the placement of the gas tank, as to what it would cost to make the repairs. The calculated decision was not to make the repairs. And then you have the famous cases of IUD's made by A.H. Robins, in which it was known for a long period of time they would cause problems for women, such as infections and sterilization. There were blood cases with AIDS being transmitted, and a failure to take appropriate action. And there were the flammable pajamas. There have been many cases, some even resulting in criminal prosecutions. I discussed many of these cases last week. So on the current state of the record, my own sense is that there needs to be further refinement of the provision on punitive damages. The revised bill does contain an amendment offered by the distinguished Senator from Ohio, Senator DeWine, which would limit punitive damages to small businesses, and small businesses are defined as those having fewer than 25 employees or a net worth of under $500,000. It may be that this provision would go far beyond product liability cases and would affect all ranges of tort litigation, including medical malpractice cases. I do not know if that is the intent. It also may be that this amendment to protect small businesses does not bear a sufficient nexus to interstate commerce in affecting all tort cases, so that we may be legislating beyond our authority, as interpreted by the Supreme Court of the United States recently in the Lopez case. I think that is another matter which requires some amplification. I do believe that there is some limitation appropriate on punitive damages where small businesses are involved. I have heard the complaint that a defendant small business is often compelled to make a settlement that it would not make if it was not betting the business on it. I have filed a proposed amendment, and will refile it so it would survive postcloture, if cloture is invoked, so that the amendment will be on record to be considered, which would limit punitive damages to 10 percent of the net worth of a business, so that there would not be a problem of betting the business in litigation. The substitute also deletes alternative dispute resolution, which I regret to see, because I think that is a way of eliminating many cases from the litigation process, by having alternative dispute resolution, which is a fancy name for arbitration or mediation. That is not present in the current bill. I express again the concern about totally eliminating joint liability for noneconomic damages as a Federal standard, where some States have elected to do that as a matter of States rights and others have not. I note again my support for the amendment offered by the distinguished Senator from Tennessee, Senator Thompson, which would have limited this bill to litigation in Federal courts, which would have been more in accordance with the mood of the Congress and the country now to let the States decide these matters for themselves. On the issue of joint liability, I am very sympathetic to the claim that some people or some defendants are in it, people or individuals or companies, to a very slight extent--maybe 1 percent--and they have the full responsibility for the verdict. I have filed another possible amendment which would limit joint liability for noneconomic damages if the defendant was not responsible for in excess of 15 percent of the injury, which I think would provide a better balance there. Again, I will comment about the case involving the death of our late colleague, Senator John Heinz, where there was a collision between a helicopter and the plane in which Senator Heinz was a passenger. The planes fell into a schoolyard where there were children on the ground, and some were killed and some were injured. Those victims could not have been compensated fully if joint liability had been eliminated. While it is always a difficult choice as to who will bear the loss, and difficult for some defendants who are involved to a lesser extent where other defendants are insolvent, but as between injured plaintiffs who are not responsible at all for what has happened and those who have been held liable and are subject to payment for joint liability, my own sense is that there ought not to be the total elimination of joint liability for noneconomic damages, which is the thrust of the present legislation. I am hopeful, Mr. President, that we can craft legislation which will make an improvement in product liability litigation. But on the current state of the record, I think the substitute still does not address the real needs of consumers and does not strike an appropriate balance between those who are sued and those who are bringing claims. I thank the Chair and I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to announce my intention to vote to confirm Dr. Henry Foster to be Surgeon General of the United States. I hope that I will have the opportunity to cast that vote, that the nomination will come to the floor of the U.S. Senate, and that preliminary proceedings will be cleared so that there will a vote up or down on whether Dr. Henry Foster should become the next Surgeon General of the United States. When Dr. Foster's name was forwarded to the Senate by the President in early February, I was a little dismayed to hear the cry arise that he should be disqualified because he had performed abortions. I was surprised to hear that cry arise because abortions are a legal medical procedure under the Constitution of the United States. This is not a matter of Roe v. Wade, the decision handed down in 1973. This is reaffirmed by the Supreme Court of the United States in Casey v. Planned Parenthood in 1992, an opinion written by [[Page S6230]] three Justices--Justice Souter, Justice O'Connor, and Justice Anthony Kennedy, all nominated by Republican Presidents. So it seemed to me curious, to say the least, that there should be a call for his defeat because he had performed abortions, a medical procedure authorized by the Constitution of the United States. Then issues were cited about character, about what representations Dr. Foster had made as to how many abortions he had performed. It then came to light that there had been an indication from the White House about some misinformation. Then other issues arose in a variety of contexts. I believe that the hearings last week have laid all of those issues to rest. Dr. Foster was a compelling witness, a forceful witness on his own behalf and he answered all of the outstanding questions, so that there is no doubt about his good character or about his excellent service as a physician, or about his care for the poor and downtrodden, and about his excellent work as a doctor over many years. I had occasion to meet personally with Dr. Foster and discuss at some length his own background and the issues which had been raised about him. It seemed to me at that time at that meeting, which was in early February, that his nomination certainly ought to go forward. I did not state at that time support for his nomination because it seemed appropriate to me that we await the hearings by the committee to see what would occur at that time. After reviewing the hearings and what occurred at the hearings, today I am confident that Dr. Foster ought to be confirmed as Surgeon General of the United States and, therefore, announce my intention to vote for him. I was encouraged to see the media reports that our distinguished majority leader will meet with Dr. Foster, and I am hopeful that that meeting will produce a result that Dr. Foster's nomination will come to the floor. I note the comments of the distinguished chairman of the committee, Senator Kassebaum, that Dr. Foster's nomination ought to come to the floor and ought to be voted upon, although I do not believe at this stage that Senator Kassebaum has stated whether her intention is to vote ``aye'' or ``nay'' on the nomination itself. I am hopeful that there will not be a filibuster, as has been mentioned, on Dr. Foster. Any Senator has the right to handle that in any way that any Senator pleases, and any Senator has a right, as I now express my right to say that I hope that we will not be confronted by a filibuster. But if we are, Mr. President, it is my sense of the Senate--and this is only one Senator speaking--that a filibuster will be defeated and that even Senators who think that Dr. Foster ought not to be confirmed as Surgeon General of the United States will not support a filibuster; that as a matter of fairness to Dr. Foster, he ought to get his day in court, his day in the Senate for a ``yes'' or ``no'' vote; and that he ought not to have been railroaded out of town, as some have suggested, even without a hearing before the committee; and that he ought not to be railroaded out of town without the matter coming to the floor of the U.S. Senate; and that he ought not to be railroaded, or have his fate decided, without having the Senators vote ``yes'' or ``no'' on his confirmation. So I am pleased to be in a position today, Mr. President, to say what I sensed when I met with Dr. Foster in early February, that he is truly a man who merits being confirmed as Surgeon General of the United States. I think that it is time that we put to rest the issue of what is the law of the land of the United States of America with respect to a woman's right to choose. I personally am very much opposed to abortion, but I do not believe that it is a matter that can be controlled by the Government. I believe it is a matter for the woman's choice, it is a matter for the family, it is a matter for priests, rabbis, and ministers, and it is not to be determined by the Government of the United States. When we have decisions of the Supreme Court separated from 1992 back to 1973 and the law of the land stated in Casey v. Planned Parenthood, a decision written by three Justices for a majority of the Court, Justices appointed by Presidents Reagan and Bush, that that is the law of the land, we ought not to reject a nominee because he is performing medical procedures which are authorized by the Constitution. I think it is time that the Senate of the United States faced up to that proposition squarely. I hope it will be done by having the nomination reported to the Senate floor and by having an up-or-down vote. I intend to vote ``aye,'' and it is my prediction that Dr. Foster will be confirmed. I thank the Chair and yield the floor. Mrs. FEINSTEIN addressed the Chair.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER. Mr. President, I suggest the absence of a quorum, Mr. President.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to make a few comments on the pending product liability bill and the cloture votes which were taken today; that is, the vote to close off debate so that there could be a vote on the bill ultimately on final passage, with the rules of our body having unlimited debate and the rules of our Senate requiring there be 60 Senators join on what is called cloture to close off debate, and we had two such votes today. One was 46 in favor, 53 against. The second was 47 in favor and 52 against. So it is obvious on the current State of the record, the Senate is long away from having 60 votes to close off debate and move to a final decision on product liability. I think that when there are significant, really major, really fundamental changes to a system as profoundly important as the legal system in the United States, that it is a matter that requires very, very careful deliberation, and it is appropriate for the cloture route to be followed and for 60 votes to be required to pass legislation of this importance, of this far-reaching nature. Mr. President, I have stated on the floor of the Senate on a number of occasions that I believe that reforms are warranted on product liability, but I think they have to be very, very carefully crafted. I believe that after experience representing both plaintiffs and defendants in litigation and having had substantial experience in products liability litigation. The matter came up in the last Congress, and I voted for cloture at that time in the hopes that we could get a carefully crafted bill. I think that it is appropriate to have a bill which would provide for alternative dispute resolution, as is provided in the current legislation, to adopt the collateral source rule which is contested. But it provides that if an individual has bought insurance and has collected on his or her own insurance policy, then that individual cannot collect again in a lawsuit. The plaintiffs and the individuals and the consumers objected to collateral source rule on the ground that the individual has paid for it so that whatever benefit is received from the insurance policy ought not to be discounted for the defendant. But I think that on balance, given all the factors, that it is appropriate to limit that aspect of a plaintiff's recovery. I believe that it is worthwhile to have a tightening of the rules on frivolous lawsuits, and perhaps the frivolous lawsuit is really at the core of the litigation problem in America today, lawsuits which are brought without any real merit or without any real foundation. I think that if we could set the rules to discourage, to eliminate frivolous lawsuits, we would have really solved most of the problem that is present in the litigation system today, to stop lawsuits which are being brought where they do not have a real basis in fact and in law, where they are brought really to coerce settlements but not because the plaintiff has a real case. The distinguished Senator from Colorado, Senator Brown, offered an amendment to tighten up the rules on I think that there are things that can be done within the course of the pending legislation which would strengthen the hand of the defendants, such as the amendment offered by the distinguished Senator from Arizona, Senator Kyl, who wanted to have the same limitations on defendants as on plaintiffs on the alternative dispute resolution issue. He wanted to leave it up to the States, many of which have provisions on alternative dispute resolution--that is a fancy name for arbitration--where if a plaintiff failed to be reasonable, there could be sanctions on the plaintiff just as under the pending legislation. If the defendant is not reasonable, there can be sanctions on the defendant. I think that the distinguished Senator from Tennessee, Senator Thompson, offered a very important amendment to limit product liability to Federal cases. That is in accordance with the principle that we ought to allow States to make determinations and to have government closest to the people, a matter related to an issue which has been handled by, promoted by the distinguished Senator from Idaho, who now presides in the chair, Senator Kempthorne. He has been here only 2 years and 4 months, if my mathematics are correct, and championed legislation to eliminate Federal mandates, having been the mayor of Boise, ID, and having seen the imposition of mandates coming from the Federal Government--may the Record show the distinguished Presiding Officer is nodding in the affirmative--really wanting to have government closest to the people, letting the mayors and State governments decide these issues so that when Senator Thompson offered the amendment, that it really ought to be a matter of federalism, and that is something which is very heavily emphasized in the Contract With America. I think that made good sense. When it comes to a few of the fundamental issues, Mr. President, I have grave reluctance to make very fundamental changes in the present system. One of those areas is on the matter of punitive damages. I do not think that we have really come to grips with the question of punitive damages in our debate. Punitive damages are set up as a form of punishment as the word ``punitive'' says, when there is some egregious, willful, wanton misconduct on the part of the defendant which really has to be controlled in a civil contest. And a number of the cases that I brought to the floor to illustrate what this really means, where you have a matter like the notorious Pinto case, where the gas tank was in the rear of the car and exploded. As I recollect the figures, it would cost $11 apiece to modify that dangerous gas tank. Ford Motor Co. made a calculated decision, figuring out how many personal injury cases there would be, how many death cases and injury cases there would be, where the motorists and the passengers would burn up, and figured it out that it made dollars and cents, economic value to them, to pay the cost of litigation as opposed to correcting the car. On the Cutter blood case where it was shown that the defendant had knowledge that blood was being transmitted which contained AIDS, they made a calculation as to what it would cost to cure it and decided not to issue the warning and to have the blood circulated. That came to light, as in the Pinto case, by going into the records of the defendant and finding that out. Or the IUD case, where women were subjected to the IUD which caused infections, sterilization, and tremendous damages, although well known to the defendant company that that was a problem. Or the flammable pajama case. Because there had not been any standard set by the Federal Government, the manufacturer put out pajamas that they knew would become flammable, that is burn up, with very little provocation. Some of the cases put into the Record--one specifically that I recollect involved a case where the conduct of the defendant corporation was so aggravated that criminal charges were brought-- really, where you have a willful and malicious disregard for human life that constitutes malice and is sufficient to have a criminal prosecution for murder in the second degree. Some of the cases by big corporations, by big companies, on the cost benefit analysis as to what it would cost to leave the damaged product go on, those are present in many cases. They have been put into the Record. That is why it seems to me, Mr. President, that we really ought not to be making fundamental changes which would give a green light and a license to disregard the interests of the consumer. What we are really talking about is the interest of the consumer here, the interest of the general public in trying to weigh what is fair in terms of handling the issues of defendant companies. I am very concerned about American productivity and especially about the ability of small business to function. I am concerned about some who say, well, the claim is so large and the damages are so enormous, potentially, even though there is no merit, that we would be betting the business if we went to trial and therefore really intimidated and intimidated into a settlement. I filed an amendment which would limit recovery on punitive damages to 10 percent of the value of the company. I filed that amendment and I offered that as an alternative possibility, with some trepidation, frankly, because of a concern I have that if you limit punitive damages, it may be an incentive for somebody to be wantonly disregarding of the safety of others. It may be that the punitive damage issue could be further contained by analogy to the libel cases where, after a libel verdict is entered under a very tough standard of malice--New York Times versus Sullivan, Supreme Court of the United States. On appellate review, there is a de novo review, the Latin word which means a full review. It is not a matter limited to a decision on whether there is sufficient evidence to support the verdict of the jury. Customarily, in litigation, when the jury enters a verdict and there is an appeal taken, the appellate court, the reviewing court, will look to see if there is sufficient evidence to support the verdict of the jury. But in libel cases because of the interest in freedom of speech and the interest of limiting the liability of the media--newspapers, radio, television--there is a different standard. The standard is applied that the reviewing court will look at it fresh to decide if there is sufficient evidence so that we will have a check on the jury system if they are capricious or arbitrary or really out of line. Mr. President, I have expressed the same concern on changing the law on joint liability. And bear in mind that as the cases are built up on punitive damages or joint liability, they are built up by courts which have a very deliberate process, much more thoughtful process than the legislative process. When we have hearings, it is well known, frequently only one or two Senators are present. When we mark up the bill--that is, write it up--it is not really the essence of understanding of all of the provisions. On the issue of punitive damages, there are learned opinions by Justice Scalia, a known conservative writing on punitive damages, from the constitutional perspective, saying there is a constitutional basis for punitive damages and rejecting the claim that punitive damages ought to be overturned. That is in the context of whether there is a constitutional basis for it as opposed to a public policy determination, which would be up to the Congress. But those kinds of issues are considered and considered very carefully by the courts. I think, fairly stated, having been a party to the judicial process and legislative process, I say unequivocally the analysis given in the court is much more intricate and more thorough than we are able to do in the legislative process. But there are points where we ought to legislate. When the issue of joint liability comes up, I have been reluctant to disturb that. One of the cases which comes to my mind is the case involving the fatality of our distinguished and learned colleague, the late John Heinz, who was killed in April 1991 in a plane crash when he was riding in a charter plane and there was a noted problem with the landing gear, and they went by the airport and came away, and a helicopter owned by the Sun Oil Co. came by trying to observe, and there was a crash. The planes fell into a crowded school yard in suburban Philadelphia. There liability in that case, the children, some of whom were killed, and some of whom were badly burned, would not be able to recover fully. So when you have a case where there is joint liability and the issue is raised, why should a party who is only 50 percent liable pay the whole thing when the other party is insolvent, or under the current law has the full responsibility? The law has been established in that effect because joint liability is composed when there is substantial negligent conduct by the party which causes the injuries. If you have to balance the injustice of having one party only partially liable pay the full damages, where others are insolvent, it turns on who is going to bear the loss, the injured plaintiff, who is not at fault, as the children were not at fault in the air collision which took the life of Senator Heinz and others on the ground, and very serious burn injuries. I filed an amendment at the desk which would seek to limit, to an extent, joint liability. You hear about the cases where somebody is liable only for 1 or 2 percent and the parties liable for 98 or 99 percent are insolvent and the party who is only peripherally involved has to pay the full verdict. It seems to me that perhaps something in the nature of 15 percent might be an appropriate cutoff. That joint liability would not attach if somebody were not liable beyond the extent of 15 percent. Mr. President, I offer these observations about ways that product liability could be crafted so that we could get legislation out of the Senate, where we might have a different standard on punitive damages to accommodate different review by the appellate courts to eliminate the really outlandish, runaway, or arbitrary jury verdicts, or limit it to the percentage of the net worth of the company--10 percent as I have suggested--so that a company, especially a small company, is not, in effect, intimidated or blackmailed into a settlement, because they cannot get the whole company. Or ways where we might have a limitation on joint liability. Mr. President, I have been in Congress, the Senate, since the 97th Congress, when we reported out a product liability bill from the Commerce Committee, Senator Kasten. It was a long time before the bill came to the floor after that. Last year, as I say, I voted for cloture, thinking we might get a bill. I believe that we could get a bill which would take significant steps, most emphatically, on the issues of frivolous lawsuits. So that in opposing cloture--on a vote, we have only 46 Senators who voted for cloture, 53 against; on the second vote, 47 voted for cloture as against 52 against, a long way from the 60 votes. I make these comments because I think that when we deal with the judicial system, it is not the plaintiff's trial bar which establishes these rules. These rules were established by the courts of the United States. As I say, I have been on both sides of the fence representing plaintiffs and defendants in personal injury cases. I think where we have so many, many cases of outlandish conduct where big companies put products on the market on a calculation that they would rather pay for the deaths and the damages than to make the correction, if we take punitive damages away, it is not a wise thing for the Congress to do. I do not think many of our colleagues understand that. After I talked about some of the cases, talked about the blood case with AIDS virus in it, being circulated by one of the big companies, and one of my colleagues said, ``That is awful,'' and I made the comment about it. They had not heard. I do not think they really have reached all of our Members. Usually, there is not more than one Senator present or two, one presiding, but the rule of this body is that these speeches are made and these presentations are made with not more than two or three or four Senators on the floor. Some are listening in their offices, but relatively few. These are matters, I think, which yet have to be considered. It is my hope that we can craft legislation which will be curative on some of the issues, especially that of frivolous lawsuits, which I think is at the core of the problem in our courts today. I thank the Chair for staying late. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent I may speak for 5 minutes as in morning business.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to urge the Senate to consider the nomination of Dr. Henry Foster to be Surgeon General, to consider that nomination ultimately on the Senate floor. I urge that this be done for two reasons: First, out of basic fairness to Dr. Foster and, second, as an important sign that men and women can place themselves up for nomination for important positions without fear of being, in effect, railroaded out of town without having an opportunity for their positions and their cases and their records to be heard. This morning, Dr. Foster testified before the Committee on Labor and Human Resources and the preliminary reports are that Dr. Foster has been an impressive witness on his own behalf. After Dr. Foster's name was submitted for the position of Surgeon General, I met with him extensively to discuss his record, after having reviewed his educational record, his record as a practicing physician, the work that he had done against teenage pregnancy, the work he had done for poor people, and the work he had done in a community context. Let us strip away the facade, Mr. President. What has really occurred on Dr. Foster's nomination is an objection to his having performed abortions, and it seems to me that when Dr. Foster has performed abortions, however many, a medical procedure permitted by the U.S. Constitution, that ought not to be a reason for his disqualification. Before any other consideration had arisen as to issues about performing hysterectomies or an issue about syphilis in studies of African-Americans or the question about how many abortions he had performed, there was an immediate cry that Dr. Foster was disqualified because he had performed abortions. I think that is totally inappropriate, that is just wrong, to disqualify a nominee for Surgeon General because that person has performed a medical procedure which is permitted by the U.S. Constitution. With respect to the issue of how many abortions he had performed and what information had come from the White House--and it appears at one point the White House made a representation of only one abortion; that was not what Dr. Foster had represented--that ought not to be held against him and ought not to be a smokescreen or a red herring for saying that he is disqualified. Whatever Dr. Foster has said about the number of abortions, that ought to be a question for the full Senate to consider. And whatever the contentions are about the performance of hysterectomies or about the syphilis testing on African Americans, that again is a question for consideration by the full Senate. Now, I know, Mr. President, there have been statements by some that they are going to filibuster the nomination. Well, if they choose to filibuster the nomination, so be it. Let us have it out on the Senate floor. And there are some who say that if the nomination is voted out by committee, and it is not brought to the floor, they are going to tie up the Senate. I do not think we need those kinds of threats for the Senate to consider its business and decide whether Dr. Henry Foster is qualified to be Surgeon General. It is my hope that the committee will report Dr. Foster to the floor for consideration by the Senate, and that can be done in a variety of ways. It can be done on an affirmative vote by a majority saying he is qualified, it could be done on a vote by the committee saying that he ought to be considered without recommendation, or it can even be done if the committee votes Dr. Foster down, as we have had with nominees. Judge Bork was voted down by the committee but it was voted to the Senate floor. Or Judge Thomas, later Justice Thomas, was a tie vote in the committee and was voted to the Senate floor. It seems to me, in fairness to Dr. Foster, he ought to be considered by the full Senate, and in fairness to the system where we are asking people to come to Washington under very difficult circumstances as a matter of precedent somebody ought not to be, in effect, railroaded out of town without having the Senate consider his nomination. So as this matter is being considered today by the committee, I wanted to make these comments because the core question here, Mr. President, stripped away from all the subterfuge, stripped away from all the smoke, stripped away from all the red herrings is whether Dr. Foster ought to be disqualified for performing abortions, however many, a medical procedure authorized by the U.S. Constitution. I think the Senate ought to face up to that squarely. If the balance of the testimony shows qualification, as I think it will, based upon my examination of the record and my detailed conversations with Dr. Foster in questioning of him, then I think he ought to be confirmed. I thank the Chair and yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, an internal memo from the Cutter Co., which was involved in manufacturing blood factors for hemophiliacs, is of considerable interest. To the extent that an internal Cutter memorandum dated December 29, 1982, recommended several steps to warn about AIDS transmission through its factor concentrate product, this memo reads as follows, from one Ed Cutter to Jack Ryan and others: It appears to me to be advisable to include an AIDS warning in our literature for certain factors. And there is a second document by a Dr. Bove, January 1983: This case increases the probability that AIDS may be spread by blood. Further, the CDC-- That is the Centers for Disease Control. continues to investigate the current cases aggressively and may even have a few more. While I believe our report reacts appropriately to the data at hand, I also believe that the most we can do in this situation is to buy time. Until these documents were disclosed, the Cutter Co. argued that the obligation to warn did not arise until the spring of 1984. This same case has a cost/benefit analysis by the American Red Cross which concluded that it would cost more to make a correction than to treat the AIDS patients, with the testing costs being in the range of $13 to $67 million, whereas an evaluation of each AIDS case at $500,000 would require the prevention of some 30 to 134 AIDS claims to be cost- effective. This suggests to me, Mr. President, a wholly inappropriate evaluation of cost analysis dealing with a deadly subject like AIDS. I ask unanimous consent that these internal corporate documents be printed in the Record.

Mr. SPECTER. Mr. President, in the Iowa Law Review article that I have referred to, there is a lengthy listing of protective measures which were taken after litigation disclosed a substantial problem. They have a special probative value in showing that when product liability litigation occurs, there is a very practical impact on safety for the consumers. For example, when the CJ-7 Jeep was found to have inadequate roll- over protection on the off-road vehicle, punitive damages caused a safety measure to be taken to redesign the product and add a new warning. When the Toyota Corona was found to have a fuel integrity problem due to the placement of tanks with injuries and deaths, there was a redesign. When power lines were found to have uninsulated components causing electrocutions, there was a multi-million-dollar safety program. When there was a television manufacturer with tubes made of wax and paper which posed a fire risk, despite the company's knowledge of numerous house fires, it did not warn or redesign until the litigation in effect compelled a redesign. There is a long list which appears at pages 81 and 82 of the Iowa Law Review article, which I shall not take the time to read now, but are worthy of special note, because once there is an aggravating factor determined in the litigation of product liability cases, there are safety measures which are taken. Mr. President, I have taken this time to put into the Record some concrete cases, where the presence of liability and the presence of punitive damages has had a profound effect on influencing the conduct of the producers. I think these are matters which have to be taken into account that I have included in the Record so my colleagues will have access to this information when the Congressional Record is printed tomorrow. That will be in ample time for consideration of this kind of material in their legislative judgments. Mr. President, I see that my colleague, Senator DeWine, has come to the floor, so I will yield the floor to him and also the duties involved in wrap-up, which I have agreed to undertake thinking I would be the last speaker. I yield to my colleague, Senator DeWine, at this time.

Mr. SPECTER. Mr. President, finally, in a confidential legal opinion on a matter involving the Clark Equipment Co., Hancock Division, is the following statement. * * * the lack of a back-up alarm presents a substantial product liability exposure to Clark that far exceeds any requirements of State safety laws or OSHA. In every case in which we have had an injury involving a person struck by a machine, the absence of a back-up alarm has been very crucial. * * * The customer is not in the same position as the manufacturer and Clark must take all steps necessary to protect itself-- Showing the safety and precaution taken as a result of the liability imposed in product liability cases. I ask unanimous consent that the full text of that document be printed in the Record.

Mr. SPECTER. Mr. President, another similar modification occurred by the Pitman-Hutsik Co., relating to boom tip contacts used on cherry pickers with an analysis that a large number of accidents occurred with these boom tip contacts, and as a result of the jury awards in product liability cases, the design was changed. I ask unanimous consent that the last item be printed in the Record. Typical Accidents 1. Boom tip contact: Metallic portion of upper boom contacted a line, and the operator touched these metal parts as well as another line. 2. Boom contact or crane contact: A non-insulated boom or lower boom of an insulated device contacted a line, resulting in injury to personnel on the ground. 3. Phase/phase contact: Operator in the bucket personally touched two phases or a phase and ground, resulting in an injury, but the machine carried no current. 4. Tipovers: Machine turned over because of: (1) improper outrigger placement; (2) outrigger malfunction or breakage; (3) outriggers were not used; (4) driving accident; (5) overload; (6) et al. Controls malfunctioned or contacted foreign object, forcing machine to continue to move against the object. 6. Leveling cable failures: Bucket leveling system broke for some reason, causing operation to fail. 7. Boom collapse: Component in boom system broke due to overload, poor maintenance, etc., allowing the boom to collapse. 8. Boom collision: Boom collided with personnel during operation of the machine. Boom collision is sometimes the result of a boom collapse, also. Discussion of pertinent data Electrical accidents account for 29 percent of the total number of accidents, but account for 77 percent ($21,500,000.00) of the active claims. The largest single type of electrical accident is ``Boom Tip Contact.'' It accounts for 40 percent of the number of electrical accidents and 67 percent of the total dollar value of the active claims. ($18,500,000.00) Those electrical accidents involving metal boom machines usually do not lead to lawsuits and represent only 9 percent ($2,500,000.00) of the dollar value of our active claims. The same is true for ``Phase-Phase'' contacts, which account for only 1.5 percent ($500,000.00) of the active claims. Contractors have fewer numbers of accidents than utilities, but contractors have a higher accident rate per machine. (This statement may be somewhat inaccurate, because it is felt that utilities, in some cases, tend to hide some of their accidents.) Contractors account for 76 percent ($21,200,000.00) of the active claims against the A.B. Chance Company, while utilities account for only 15 percent of the active claims ($4,300,000.00). Of the $21,200,000.00 claims from the contractors, $18,000,000.00 resulted from electrical accidents, $15,000,000.00 of which was attributed to ``Boom Tip Contact.''

Mr. SPECTER. Mr. President, another very important product involved the Bjork-Shively heart valve where internal company documents show the company was notified by the inventor in 1982 of the manufacturing defect, with the handwritten notations on the memo by the inventor to try to ``settle him down,'' a defect which was not fixed for years resulting in damages to thousands of people who used these heart valves. Again, I ask unanimous consent that this corporate document be printed in the Record.

Mr. SPECTER. Mr. President, some of the cases disclosed procedures which would result in additional safety which were left uncorrected for very considerable periods of time, and I refer now to an intracompany memorandum of the Ford Motor Co., dated September 19, 1967, which reports: When properly worn, the three-point diagonal shoulder belt system has been demonstrated to offer much greater protection to the vehicle occupant than does a single-lap belt alone since it prevents injuries from jack-knifing. And in the same document: A properly worn three-point system clearly protects the occupant better than a lap-belt-only system. But it was not corrected until 1987 as reflected in intracompany correspondence of Ford. This is dated May 2, 1986: I believe we should consider optional rear seat shoulder belts for reasons described in the attached memo to you from Al Slechter as a defense against future product liability claims. These are a series of internal memos, Mr. President, which have come to public light in the course of litigation and show that litigation of product liability cases with the potential for punitive damages is a significant factor leading to product safety, which I think has to be evaluated as we consider this legislation. Further evaluation of the cost benefit occurred by General Motors in a memo dated June 29, 1973, where as a result of their cost analysis, they made a substantial change, showing that where there was concern about fatalities and damages, safety features were added. I ask unanimous consent that this document be printed in the Record.

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER. Mr. President, I have sought recognition to comment about punitive damages in our legal system as they apply to tort reform. I have spoken before on this bill and have noted that I have had experience representing both plaintiffs and defendants in personal injury cases and had one very involved product liability case which I described in a floor statement a week ago today. I have noted my concern that there is room for reform of product liability tort law. But my concern is that it be done very, very carefully because the body of law in the United States, common law development is slow, laborious, careful. Common law builds up by accretion or encrustation over a long period of time and is very different from the kind of processes which we have in legislation where there are frequently only one or two Senators present at hearings and where markups are done without the kind of background or careful evidentiary study which marks development of the law, case law and common law. There is a very erudite analysis of punitive damages in the Iowa Law Review, volume 78, appearing at page 1, published in 1992, by Prof. Michael Rustad and there are a number of aspects of that article about which I would like to comment. Even though this is a lengthy law review article, it is worth printing in full in the Congressional Record because of the importance of tort liability generally and product liability specifically and punitive damages as it impacts on the legislative consideration which we have before the Senate. My comments will be relatively brief compared to the scope of the article. I start by referring to four empirical studies of punitive damages in product liability cited in Professor Rustad's law review article. The first is by the Rand Institute for Civil Justice, which studied 24,000 jury verdicts in Cook County, IL, and San Francisco, CA, between 1960 and 1984. The Rand study stated that the ``punitive damages picture in personal injury cases has changed very little in 25 years.'' As noted in this law review article, the Rand study states: ``Product liability cases have been of special concern to many critics, but our analyses indicate that punitive damages were awarded in only four product liability cases in San Francisco and two in Cook County from 1960 through 1984.'' It further notes that, ``The rarity of punitive damage awards in products liability cases suggests that there is little need for tort reform.'' The second empirical study noted in this law review article is by the American Bar Foundation, which examined 25,627 jury verdicts handed down from 1981 to 1985, drawn from State jury verdict reporters in 47 counties in 11 States. This study found that in 5 percent of the verdicts there was an inclusion of punitive damages and that products liability accounted for 3.8 percent of the 25,627 verdicts. Of the 967 products liability verdicts, the study found 34 cases in which punitive damages were awarded. The researchers concluded that the awards were generally quite proportionate to the actual damages, and they concluded that ``the median punitive damage award is not at a level that is likely to `boggle the mind.''' The third empirical study noted in the Iowa Law Review article is the GAO study on the frequency and size of punitive damage awards in product liability cases in five States between 1983 and 1985. There was a review of court records for 305 product liability cases resolved through trial in Arizona, Massachusetts, Missouri, North Dakota, and South Carolina. The GAO supplemented official court records with posttrial interviews with attorneys. The General Accounting Office found that punitive damage awards were neither routine nor excessively large and that posttrial appeals and settlements substantially reduced the amount of punitive damage awards. The fourth empirical study noted in the Iowa Law Review was conducted by Judge Richard Posner, a distinguished court of appeals judge in the Federal system, and Prof. William Landes of the University of Chicago, who examined all products liability cases ``reported in the 10 most recent volumes of each of the West Publishing Company's regional reporters'' and all ``product liability cases in the federal courts of appeals from the beginning of 1982 to November 1984.'' This study found ```punitive damages were awarded in the trial court in 10 of 172 cases.' The award was affirmed in whole in only one of the ten cases. Appellate judges reversed and remanded six of the cases for further proceedings.'' Mr. President, in an era when we are looking toward less Federal regulation, I think it is very important that we take a close look at what private actions import. This is an area which has attracted my attention since law school days, when, as a member of the board of editors of the Yale Law Review, I wrote an article on private prosecution, which is a somewhat different line, on the need when there was unwarranted inaction by the public prosecutor. In the Senate, I have authored legislation to establish a private right of action for people who are damaged by unfair foreign competition, where goods come in the United States either as a result of subsidy or dumping because of the insufficient resolution of proceedings in the International Trade Commission. At this point, I am going to refer to a number of cases, some of which are cited in the Iowa Law Review article and some of which are found in other places. One case of considerable interest was Richardson-Merrell's concealment of side effects of MER/29, an anticholesterol drug. In a case litigated, Toole versus Richardson-Merrell, Inc., in the California court of appeals, the evidence was that there had been fictitious reports filed by the company, that none of the abnormal and that there was a falsified chart prepared under protest by one of company's employees which was included in the application. One advertising brochure stated that MER/29 was ``virtually nontoxic and remarkably free from side effects, even on prolonged clinical use.'' The evidence further showed evidence of high-level management with knowledge of the concealment of MER/29's known defects. There were 1,500 civil suits filed after there were guilty pleas by the company's executives. Three scientists pleaded nolo contendere to criminal fraud charges and were fined a total of $80,000 in the context of the criminal conduct which seriously injured an estimated 5,000 consumers. Of the 1,500 civil cases which were filed in the wake of those criminal pleas, juries awarded punitive damages in three of those cases. Another case of some concern noted in the Iowa Law Review article is one involving the Dalkon shield put out by A. H. Robins, in a case captioned Plaintiff versus A. H. Robins Co. The Supreme Court of Colorado found evidence upholding a punitive damage award with the following statement: Robins' marketing program which occurred over a long period of time was directed to a vast array of unwary consumers and was accompanied by false claims of safety and a conscious disregard of a life-threatening hazard known by it to be associated with its product. Robins accumulated gross revenues which exceeded $11 million from the shield alone and its net worth nearly doubled during the marketing period of this device. Another case worthy of special note, although there are many cited in this law review article, is a case captioned Duddleston versus Syntex Labs, Inc., which involved the company's failure to test a soy-derived baby formula which resulted in thousands of infants suffering brain damage. The company had removed salt from its product without considering the effect on child development, and that was a causative factor in brain damage and learning disabilities. Another case worthy of special note is captioned Batteast versus Wyeth Laboratories in which there was an assessment of substantial punitive damages for failure to warn physicians of certain propensities dangerous to children in the chemical composition of a drug, and the basis for the punitive damages was the company's failure to market the suppository in compliance with Federal Drug Administration adverse- reaction guidelines. Among many of the other cases cited, my final reference is to the Minnesota Supreme Court decision in a case captioned Gryc versus Dayton-Hudson Corp. as follows: In April 1968, a letter from an official of [the defendant] explained that satisfactory runs were made with flame- retardant flannelette using various chemicals, but that [the defendant] was not going to use these products until Federal law so required because of the cost factor. . . [T]he decision not to use flame-retardant cotton flannelette was merely an economic one for the benefit of [the defendant]-- This gave rise to the imposition of punitive damages. In reviewing a number of cases, and these are only illustrative, Mr. President, of what exists in the field of tort liability, the famous case involving the Pinto automobile which had the gas tank in the rear and was justified in a letter from Ford Company to the Administrator of the National Highway Traffic Safety Administration which sought to justify the dangerous condition, because it was more cost-effective to suffer 180 burn deaths with 180 serious burn injuries and 2,100 burned vehicles at a total cost of $49.5 million, contrasted with the cost of repairing 1.5 million light trucks, 11 million cars at a unit cost of $11 per car, which would cost $137 million. This has already been placed in the Record, Mr. President, so I will not further burden the Record by asking that it be printed. Another matter of some notoriety involved the American Motors Corp. and its product, the Jeep, when there was an internal American Motors Corp. memo dated January 7, 1982, acknowledging a defect with the shackle system of the Jeep, which was known for many years to the company, and the following sentence from the memo is of some significance: Not to retrofit will subject Jeep Corporation to possible punitive damages on a component which has previously been the subject of several causes of action. I ask unanimous consent that this intracompany correspondence be printed in the Record for its probative value in showing that the possibility of punitive damages is something to be considered in retrofitting a vehicle to make it safer.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. Mr. President, I have sought recognition to comment briefly on the pending amendment offered on health care liability reform. I heard about it this morning at about 11:15. Today, like so many days in the Senate, is a very complicated day. Shortly we will be conducting hearings in the Judiciary Committee on terrorism, which I am due to chair. There is a ceremony starting in a few minutes on the steps of the Capitol to commemorate the victims of the Holocaust. But I wanted to come over for just a few minutes to comment about this pending amendment on health care liability reform. My review so far has been cursory because of the limited time available, but it is my understanding that this amendment, which is a fairly thick document, is the bill which was reported out of the Labor and Human Resources Committee earlier this week. It is my thought that this legislative proposal now offered in the form of an amendment really warrants some very, very considerable study. It is being added onto the bill on product liability, which is already complex. The health care liability reform amendment is really a piece of legislation which I think requires a committee report, requires time to study and to reflect, and some judgment. When we are dealing with the whole area of tort reform, we are building on a field which has had encrustations of judicial decisions over decades, or really centuries. As I said earlier this week in a brief statement on product liability, some reform, I think, is necessary. And in the practice of law, my profession, I have represented both plaintiffs and defendants in personal injury cases. But the reform process needs extraordinary care because the common law has developed one case at a time with very careful analysis, contrasted with the legislative process where frequently in hearings only one or two Senators may be present, and the markups, as carefully as we can do them, do not really produce the kind of legal and factual analysis which the courts have developed in the common law. But I do think there is room for improvement. Last night, I spoke in favor of Senator Brown's amendment to tighten up rule 11 to deter frivolous lawsuits. So there are places where we can improve the system with a very, very careful analysis. But I do not think it is realistic to take up this entire legislative package on health care liability reform with the kind of analysis which is required to protect the interest of all the parties, both plaintiffs and defendants. As is the custom of the Senate under the rules of the Senate on the pending legislation of product liability, we have a different committee report which analyzes the hearings, sets forth the facts and conclusions that Senators may use as a basis for their consideration of the legislation, which we do not have on this amendment. It would be my expectation that the managers would move to table. I have not consulted with them. But the Senator from West Virginia, Senator Rockefeller, has commented about his interest at least in keeping the current legislation limited to product liability, and the distinguished Senator from Washington has commented about making sure that any amendment has that will not stand the 60-vote rule on cloture. I note that the majority leader has come to the floor. I shall be very brief. I would like to put in the Record two studies of the malpractice field which I think would be of interest to my colleagues to review, and I will read just a couple of paragraphs which articulate the conclusions of these studies. First, I refer to an article in the Annals of Internal Medicine of 1992 entitled ``The Influence of Standard of Care and Severity of Injury on the Resolution of Medical Malpractice Claims'' by a distinguished group of doctors. Objective: To explore how frequently physicians lose medical malpractice cases despite providing standard care and to assess whether severity of patient injury influences the frequency of plaintiff payment. This is a study of a ``total of 12,829 physicians involved in 8,231 closed malpractice cases.'' Under the conclusions section, the study essentially reports that, ``Our findings suggest that unjustified payments are probably uncommon.'' There is a fair amount to the analysis and a fair amount more to the conclusions. But I leave that for the readers in the Congressional Record. I would next cite an article in the New England Journal of Medicine from July 25, 1991, captioned ``Relation Between Malpractice Claims and Adverse Events Due to Negligence'': Abstract--Background and Methods. By matching the medical records of a random sample of 31,429 patients hospitalized in New York State in 1984 with statewide data on medical- malpractice claims, we identified patients who had filed claims against physicians and hospitals. And the conclusion: Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care. I would also like to put into the Congressional Record, Mr. President, an article from the New York Times of Sunday, March 5, which is particularly applicable to the second-degree amendment which has been filed here relating to obstetrics. This article reported on a study of New York hospitals with the captioned headline: ``New York's Public Hospitals Fail, and Babies Are the Victims.'' It is a fairly lengthy article. But a couple of paragraphs are worth quoting. Each year, for the last decade, dozens of newborn babies have died or have been left to struggle with brain damage or other lifelong injuries because of mistakes made by inexperienced doctors, poorly supervised midwives and nurses in the teeming delivery rooms of New York City's public hospitals. Some of the most prestigious medical schools and private hospitals are paid by the city to provide care in its sprawling hospital system. But an examination by the New York Times shows that many of these private institutions have left life-and-death decisions to overworked nurses and trainee doctors who are ill prepared to make them. The effects can be seen across the system, from the surgical suites to the clinics. But nowhere are the consequences more devastating than in the delivery rooms where the course of a young life will be changed forever by a few minutes delay in the malfunctioning monitor or a lapse of attention. Some hospital and city officials have known about the problem for years, and have worked mightily to keep them from the public. They fear a loss of public confidence and a flood of lawsuits. Quoting further from the report: These cases are catastrophic and costly. Many of these infants are now grown children suffering from multiple and severe disabilities who require lifetime hospitalization or intensive home care. I would also cite a report by the Congressional Budget Office, the independent arm of Congress, and their conclusions in 1992: Restructuring malpractice liability would not generate large savings in U.S. health care costs. Malpractice premiums amount to less than 1 percent of national health care expenditures. Thus, the premiums directly contribute little to the Nation's overall health care costs. These are just a few comments, Mr. President, which I say I am abbreviating because the distinguished majority leader is on the floor. I have other commitments, having come over just when I heard the introduction of the amendment. I ask unanimous consent at this point that the articles that I referred to from the New England Journal of Medicine, the Annals of Internal Medicine, and the New York Times be printed in the Record.

Mr. SPECTER. I thank the Chair. I yield the floor. Mr. DOLE addressed the Chair.

Mr. SPECTER

Mr. SPECTER. Within the 10-year period, I think that rule had sufficient flexibility to deter frivolous suits but was not so rigid and burdensome as to make it impossible to work in a reasonable fashion. And by returning to the old rule, which had been in effect for that period of time, it is my sense that there will be a tightening of the legal procedure and that it will make an improvement and satisfy those who are concerned about the filing of frivolous lawsuits. It is my sense generally that in seeking congressional changes in rules governing judicial proceedings that we have to proceed with substantial caution. In my comments on Monday I pointed out some of my experience. As a practicing lawyer, I represented both plaintiffs and defendants in personal injury cases and had a major piece of litigation, which I had discussed on Monday, and have a sense that, as we have had accretion or encrustation by the courts since the early 19th century on the rules of law, where the cases are very, very carefully analyzed and considered--I have read many of those cases personally in connection with the litigation which I handled many years ago, described in some detail in my earlier presentation--that the courts have a much better opportunity to handle changes in the law than we do in Congress, where frequently only one or two Senators may be present at a hearing and our markups do not have the kind of careful and close analysis of an issue which judicial decisions have. So that when Senator Brown seeks to return to a rule which had been in effect for 10 years, which tightens the procedures and which may well foreclose a more drastic or draconian change on loser pays, I think it is worth enacting. So I compliment my colleague from Colorado and I also compliment my colleague from Alabama, who has no peer here in terms of his knowledge of the judicial system and of judicial temperament. We do not always agree, but Senator Heflin and I have been on the Judiciary Committee for 14-years plus together and we have agreed most of the time. I might say we are going to miss you, Senator Heflin. But on this one I must respectfully disagree and decide with Senator Brown. I thank the Chair and yield the floor.