A federal appellate court overturned a $5.5 million jury verdict against a Missouri orthopedic surgeon who is accused in a whistleblower lawsuit of taking kickbacks from a spinal implant distributor owned by his fiancee.

A panel of the 8th Circuit Court of Appeals ruled Tuesday that improper instructions were given to the jury that found Dr. Sonjay Fonn of Cape Girardeau and distributor Deborah Seeger liable for violations of the federal False Claims Act. The panel said the jury should have been told that the government must show not only that Fonn accepted kickbacks, but also that the payments influenced his decision to use those particular implants.

The 8th Circuit’s ruling allows the Department of Justice and the whistleblowers to try the case again. But Fonn’s attorney, James G. Martin with the Dowd & Bennett law firm in St. Louis, said he doesn’t believe the government has the evidence it needs to win a jury verdict against his client under the standard set by the 8th Circuit.

“The government never had any evidence that the alleged kickbacks influenced his decisions,” he said.

Martin said even with the lower standard of causation allowed by the US District Court, the jury exonerated both Fonn and Seeger on one of the government’s three counts, found in favor of Fonn on a second count and awarded no damages against either of the plaintiffs on a third count.

The evidence presented at trial did, however, persuade a jury to award $5,495,931 in damages, which is...

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