dissenting.
I must dissent from the Court’s affirmance of the Appellate Division’s remand of Ruby Cox’s suit for a new trial as to damages. I take this position because I am of the view that the trial summation by counsel for plaintiffs constituted reasonable advocacy of a client’s cause and did not offend the rule as reaffirmed by this Court in Botta v. Brunner, 26 N.J. 82 (1958), prohibiting an attorney from importuning a jury to use a per diem formula to measure damages for pain and suffering.
The Court in Botta v. Brunner, in holding that it is improper for an attorney “to suggest to the jury in summation a mathematical formula for the admeasurement of damages for pain and suffering,” id. at 91, specifically disapproved of counsel (1) attempting to persuade the jury to apply the “golden rule” of damages, i. e., “to fix what they would want as compensation if they had sustained the injuries or what the pain and suffering would be worth to them,” id. at 94, and (2) suggesting to the jury that it compensate a personal injury plaintiff “on a per hour or per diem basis,” id. at 100. The Court in Botta reasoned that such statements are no more than “suggestions of valúa*388tions or compensation factors for pain and suffering [having] no foundation in the evidence. [As such, t]hey import into the trial elements of sheer speculation on a matter which by universal understanding is not susceptible of evaluation on any such basis.” Ibid.
The appropriate standard to be used in determining such personal injury damages is “ ‘fair and reasonable compensation,’ ” id. at 92, i. e., “such amount as reasonable persons estimate to be fair compensation,” id. at 95. The majority purports to follow this standard as interpreted in Botta. Ante at 384. It then proceeds, however, to misapply that rule to the instant situation by reading it much too sweepingly and severely. The effect of this misapplication is to stifle reasonable and permissible advocacy.
Counsel for plaintiffs did not here overstep the boundaries delineated by this Court in Botta v. Brunner, supra. In that case, counsel’s summation explicitly suggested to the jury an amount of “ ‘fifty cents an hour’ ” for plaintiff’s pain and suffering. 26 N.J. at 92. Here, however, counsel made no such suggestion of a specific monetary amount to the jury. Further, counsel’s reference in summation to dentists and tooth extractions, ante at 384-385, was not sufficiently monetarily specific to constitute even a “subtle appeal” to the so-called “golden rule” of damages, ante at 385, but rather was merely a rhetorical device serving to impress upon the jury that pain and suffering is, in fact, compensable. Nor was counsel’s reference to the actual life expectancy of Ruby Cox measured in days impermissible. Ante at 385-386. The remaining life expectancy of a personal injury plaintiff—whether measured in years, months or days—is a fact quite properly before the jury and, thus, permissible for inclusion in summation. Moreover, counsel’s reference to Ruby Cox’s special damages, including medical bills and lost wages, and his comment that such special damages alone would not constitute fair compensation for her injuries were both reasonable and accurate (ante at 384). Lehner v. Interstate Motor Lines, Inc., 70 N.J.Super. 215, 218-219 (App.Div.1961).
Hence, there was no impropriety here by counsel in his summation. His comments were not nearly so suggestive as either *389to vitiate the entire summation or to impugn the ultimate judgment as to damages, which all three courts here involved— the trial court, the Appellate Division, and this Court—have found not to be excessive. Ante at 386. The Botta rule was thus not violated.
I would, accordingly, reverse the decision of the Appellate Division and would reinstate the trial court’s awards to both plaintiffs.
For modification and affirmance—Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and POLLOCK—6.
For reversal—Justice HANDLER—1.
In the Matter of the FINAL DETERMINATION OF the LOCAL FINANCE BOARD AFFIRMING the DISAPPROVED 1979 BUDGET OF the COUNTY OF PASSAIC BY the DIRECTOR OF LOCAL GOVERNMENT SERVICES.
Petition for certification to Local Finance Board of the Department of Community Affairs is granted.