Unpublished Disposition, 931 F.2d 896 (9th Cir. 1991)

MEMORANDUM^** 

Arthur D. Finch appeals pro se the verdict in favor of defendant Doctors Jordan, Prout, and Fairchild following a jury trial before a United States Magistrate Judge. Finch contends that evidence necessary to prove his case was lost, and that the district court abused its discretion in not appointing an expert witness. We have jurisdiction pursuant to 28 U.S.C. § 636(c) (3), and we affirm.

Finch claims that certain x-rays necessary to prove his case "appear to have been lost...." Even assuming that Finch raised this contention below, it is not sufficient to warrant a default judgment or a new trial unless defendants intentionally lost the evidence. See Pau v. Yosemite Park & Curry Co., No. 89-15511, slip op. 2993, 3004-05 (9th Cir. Mar. 22, 1991) (defendant's "accidental mix-up" which confused the identity of certain evidence did not warrant the extreme sanction of entering default judgment). There is no indication that defendants intentionally misplaced the evidence Finch seeks.

Finch also contends the magistrate judge erred in failing to appoint an expert witness so that Finch might be able to refute defendants' expert testimony. We review for an abuse of discretion a lower court's decision concerning appointment of expert witnesses. See McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991). Contrary to Finch's assertions, the mere fact that funds might be available to pay for an expert is not sufficient to hold that the magistrate judge abused his discretion in declining to appoint an expert. Upon review of the record, we find the decision denying appointment of an expert witness to be a proper exercise of discretion.

AFFIRMED.