“Reasonable doubt” for sale – about Boliden and dubious experts

They defend toxic emissions in the rainforest, have questioned the benefits of seat belts and deny that passive smoking causes cancer. Exponent, the American consulting company that Boliden hired to defend itself against accusations of having poisoned people in Arica in northern Chile, often presents controversial research results. Exponent is sometimes called the research world’s mercenaries and is considered to specialize in producing so-called “doubt science”, intended to be used in trials to cast doubt on established research.

As a journalist, I have for a long time covered trials of various kinds. Some of them have been about disputes related to the environment and medicine, areas where scientific information plays a major role in court proceedings. Confidence in scientific studies is rightly high and when expert witnesses are called in, their statements often have great significance for the court’s final judgment.

This also applies to the trial in which 796 Chileans held Boliden liable for damages they believe they received from 20,000 tonnes of toxic waste sent to the Chilean city of Arica in the mid-1980s. As a producer of the film Arica (2020), I followed this trial closely and it is only afterwards, in the stage where the footage is rolled back and forth in the editing process, that I discovered something I had not seen before: experts hired at high expense to produce what in the legal process is presented as ‘science’ as a basis for only one of the parties’ arguments.

The American agency that Boliden has hired is called Exponent and it turns out that they for a long time have produced research and reports with, to say the least, controversial results.

It was in September 2013 that the 796 Chileans, through the limited partnership Arica Victims KB, submitted their lawsuit against Boliden in what has become the most extensive trial in the history of Skellefteå District Court.

In short, the following has happened: In 1984, Boliden paid SEK 10 million to a Chilean company, Promel, to take care of their waste, residues from decades of gold and other metal production. The waste contained extremely high levels of heavy metals, including 17 % arsenic.

Promel took the money but left the sludge in a pile on the outskirts of the northern Chilean city of Arica. The mound became a playground for the area’s children and the toxic dust blew in over nearby residential areas. After 14 years, it was discovered that many residents became ill and died. Boliden’s waste was taken to another location in Arica, Chilean authorities were taken to court while Promel was declared bankrupt.

In 2009, the Chilean government determined that nearly 2,000 households in the area were affected by severe pollution of heavy metals. In 2012, a law was passed that included more than 13,000 victims and would provide them with financial support and assistance to relocate, a commitment that would be fulfilled to a very limited extent.

Boliden has renounced all responsibility during all these years. They claim that they followed the applicable rules, that Swedish authorities as well as Chilean authorities, then under dictator Pinochet, had approved the deal, that Promel did not do what was promised, that it was wrong of Chilean authorities to approve housing construction, that the diseases are not due to Boliden waste, that arsenic may come from other sources and so on…

But Boliden’s liability has never been tried in court. Not until the filmmakers Lars Edman and William Johansson Kalén made their first film about the scandal, (Toxic Playground, 2008). It caught the attention of two lawyers and an environmental law professor who decided to take Boliden to court.

Despite the fact that many thousands of people have been affected over the years, the case was limited to 796 individuals who in 2010 provided urine samples with more than 30 micrograms of arsenic per liter. They demanded that Boliden pay a total of SEK 102 million in damages.

The case is very complicated and has many unique legal aspects, but the key for the victims’ lawyers was to prove that the arsenic came from Boliden’s waste and that Boliden was careless when they sent their wetland sludge to Arica. Something that Boliden of course argued against. And it is now that Exponent enters the stage.

Legal systems, when they work, are something we should be happy and proud of. Here all possible conflicts and atrocities are drawn in to be settled. Involved parties are given the opportunity to present all relevant facts and then the court sits down and considers how these facts relate to the existing laws and regulations.

In a modern democratic context, we trust the courts to make wise decisions and we get upset with examples where justice is manipulated or corrupted. On every such occasion, it is the rule of law and the democratic system that are violated. We want the facts presented to be credible and true.

I have previous experience of two cases of environmental conflicts that have gone to court. In both cases, I did a report in TV4’s ‘Kalla Fakta’, a tv-magazine for investigative journalism. Working with such reports means that you get very well read into the subject and also that you are well informed about what happens once the report is published.

The first example was about how the company Nordkalk wanted to mine lime in a nature-sensitive area in northern Gotland. In my report, I was able to show how an official at the Geological Survey of Sweden, SGU, was allowed to write decisive expert statements for the Environmental Court of Appeal at the same time as he was paid for other assignments directly for Nordkalk. The revelation, of course, diminished the credibility of his statement, which advocated lime mining, and after a number of further trials, a government decision was finally taken, declaring that the environmental richness ​​was far too great for mining to take place.

My second example was about how a firefighting foam with hazardous fluorescent substances, called PFAS, for a long time leaked into the drinking water in Kallinge, in southern Sweden. The case, in which 160 affected residents are suing Ronneby municipality, was recently decided in favour of the plaintiffs. In parallel with the legal process, the Swedish Agency for Occupational and Environmental Medicine (AMM) carried out a number of health studies on people who had consumed the affected drinking water. A heated discussion arose, however, when it turned out that the authority had discussed its research results with one of the parties involved, Ronneby municipality, before the results became available to those affected.

In both these cases, the outrage was significant precisely because it is possible to suspect that the facts had been manipulated to benefit only one of the parties involved. That’s not how we want it to work.

In the Boliden case, the parties submitted thousands of documents and studies that would provide support for their respective positions. A dozen expert witnesses crossed the Atlantic to be heard during eight weeks of hearings in Skellefteå District Court.

The material and testimonies from Boliden appeared at first sight to be solid, well substantiated. They were also expensive. When it was all over, the bill from Exponent to Boliden was over 1 million euros. But there was something strange about the information presented.

In the film Arica (2020) we tell about two such examples. In one case, Exponent’s toxicologist Joyce Tsuji claims that arsenic may have entered the victims’ bodies through its natural presence in drinking water and through foods such as fish, shellfish and algae. An example she cites concerns the seagrass dish ‘cochayuyo’ which she found in a kind of field study in a fish market several kilometers from the place where Boliden’s waste was located.

Several victims were heard about their food habits and it became clear that seafood is a luxury that these often poor people can not afford and that ‘cochayuyo’ is a rather strange traditional dish, which could be compared to the Swedish sour herring.

Arica Victim’s experts dismissed drinking water and food as sources of arsenic. Even if one takes into account an abundant natural occurrence of arsenic, one would never be able to reach levels that exceed 15 micrograms per liter of urine, said Craig Steinmaus, professor of epidemiology at the University of California, Berkeley.

The filmmakers asked Boliden’s lawyer Robin Oldenstam how he saw the testimony of Steinmaus, who has been researching arsenic and health in northern Chile for over thirty years, and we were concerned about his answer.

“I am not convinced that strong idealism, or whatever drives him (Steinmaus), is a safer source of objectivity than someone being a consultant who gets paid by the hour.”

To dismiss in this way a university researcher who has spent thirty years studying how arsenic affects people in northern Chile made me for the first time realize that in a legal process there can be great differences in the view of what is science and facts. While Arica Victim’s lawyers tried to present existing studies by reputable researchers from large and influential institutions, Exponent presented new findings, produced specifically for this trial.

An even clearer example was the question of whether toxic dust could blow in and settle over the residential areas during the 14 years the wetland sludge lay unprotected in the open air. Much time was spent in the trial on this issue, as it would explain that people were exposed to arsenic even twelve years after the pile of toxins was removed.

Walter Shields, a soil expert from Exponent, said that the material was too coarse to be able to move with the wind. He had a wind tunnel built for € 100.000 in which he had put lumps of clay and then subjected them to pressure by walking back and forth in the trough. The result was, of course, that the material could not be moved by the fans he then turned on.

But the brown lumps of clay that Shields put into his wind tunnel do not at all resemble the dark fine-grained material found in Boliden’s wetland sludge. TV footage from 1998 shows just how dusty and volatile the material was.

Both Joyce Tsuji and Walter Shields declined to answer any questions from journalists after their presentations.

We have now two examples of how the consulting firm Exponent has produced new ‘research’ solely for the purpose of providing support for Boliden’s argumentation. In Walter Shield’s case, the information is clearly misleading.

It is not possible to easily conclude that it was precisely these peculiarities in Boliden’s presentation that led to the district court’s decision to reject Arica Victim’s claim for damages. As I have mentioned, it was a complicated and extensive trial and everyone involved knew that it would be difficult for the victims to win.

Admittedly, the district court declared that Boliden had acted negligently when they shipped their waste to Chile. The managers who recommended the ‘export’, the court said, should have understood that people would be exposed to the toxins and they should subsequently have done something about it. However, the district court concluded that there was no proven link between Boliden’s toxins and the arsenic in the victims’ urine, which was what Exponent’s consultants had focused on.

The strange “science” that was presented in Skellefteå District Court did not pass unnoticed. When the case was appealed to the Court of Appeal, one of the representatives, Jonas Ebbesson, professor of environmental law, devoted part of the final plea to discussing how important the perception of research, facts and science are for a judicial system. And he focused in particular on Boliden’s experts from Exponent.

– For me, the combination of Exponent’s way of working and Boliden’s attempt to present Exponent’s reports as “science” in court was offensive. It was a clear abuse of “science” and what is “scientific”, and an example of what we today call fake facts, says Jonas Ebbesson.

How the Court of Appeal viewed these issues, or Boliden’s responsibility for what happened in Arica, will remain unknown as the court considered that the claims for damages were statute-barred. Therefore, the court never tried the case on the merits, neither in terms of Boliden’s negligence nor the damages and causal links. It was hardly a victory for either party. Boliden has not been finally cleared from liability and the victims will continue to struggle for their survival, so far without support from Sweden.

But Exponent continued to disturb us in the filming team. It felt like we had experienced something unusual in the courtrooms. The feeling was reinforced as we rolled the filmed material back and forth in the editing room. It was unsettling. 

More than a year after the Court of Appeal’s ruling and following also the rejection of the Supreme Court to try the case, I was notified of an article about Exponent in an American magazine, Business Ethics, which monitors how big corporations handle their responsibilities in human rights issues.

The article, from 2016, shows how Exponent’s consultants have participated in a long series of US lawsuits presenting studies with very strange conclusions. I will give some examples.

During the 1990s, Exponent produced research on behalf of the tobacco industry which showed that there was no connection between passive smoking and cancer.

In 1992, Exponent’s engineers, on behalf of a car manufacturer, published an article questioning the value of having seat belts in the rear seat. Belts do not seem to make a “measurable difference” in reducing serious injuries and deaths in connection with traffic accidents, it was said.

In another study for carmaker Ford, Exponent’s consultants argued that there was no link between pleura cancer and the asbestos that Ford used in its brakes, a finding that contradicts other research findings.

When American soldiers in 2015 accused the US military for cancers obtained from the pesticide Agent Orange, which was used during the Vietnam War, Exponent was hired. Despite 50 years of research showing that dioxin is carcinogenic, Exponent’s experts presented a research article claiming that there is no link between dioxin exposure and lymph node cancer. Critics noted that in the article, Exponent removed large amounts of data that the ‘researchers’ considered to be incorrect or irrelevant.

Furthermore, in a relatively new Netflix documentary, “The Game Changers”, with Arnold Schwarzenegger as one of the producers, we found information about how Exponent’s experts were hired by the meat industry to dismiss risks with the consumption of animal products. While other studies show that there is a link between animals and colorectal cancer, Exponent concludes in a study that there are no such risks.

One case where there are some parallels to the Boliden scandal involves the oil company Chevron, which between the years 1972 to 1992 dumped 68 billion liters of crude oil and wastewater in a rainforest area in Ecuador. The waste contained large amounts of toxic hydrocarbons, and in 1993 Chevron was sued by nearly 30,000 people from the affected area for the damage caused by the spill; crops had been destroyed, livestock had died and cancer cases among the population had risen significally. Chevron then hired Exponent, which in a 2005 study concluded that mortality in the area had not increased, either in cancer or other diseases. Critics claimed that the results of the study were misleading because Exponent’s consultants had chosen to count death certificates, which was not a safe method in a secluded rainforest area in Ecuador.

The research that has concluded that dioxins, smoking, hydrocarbons, arsenic and asbestos are hazardous to health is almost exclusively produced by colleges, universities and other institutions for higher education, institutions that we see as independent. The threshold for what is to be accepted as new knowledge and facts is high. Each dissertation is discussed and evaluated to the smallest detail and the conclusions are therefore credible.

This is not how Exponent works. Exponent’s consultants have per se read and, certainly rightly, received their titles from respected universities. But they make their services available to whoever pays. They are, as indicated in Business Ethics, “science for hire”, with a clear reference to the term “guns for hire”, an established term for mercenaries.

In the USA, the criticism of Exponent comes from amongst others Professor David Michaels, former head of the American Work Environment Authority OSHA. In his book, Doubt Is Their Science (2008), he writes:

“It may exist, but I have not yet seen an Exponent study that does not support the conclusion that is beneficial to the company or industry organization responsible for the bill.”

I discover that in the United States there is a more or less established concept that I have never encountered before; “Doubt science”, which can be described as research that is intended to spread doubts about other research findings, such as that passive smoking does not cause cancer or that seat belts do not save lives.

One may think that the concept of “doubt science” should have limited demand, but in the United States, where class action cases are more common than in Sweden, there is a large market for “reasonable doubt”, which is often the only thing needed for an accused perpetrator to escape judgment and penalty. And this is Exponent’s concept. They sell reasonable doubt to anyone who can pay and the company’s annual turnover is counted in billions.

I do not know to what extent false or misleading research has been presented to Swedish courts before. But I suspect that Boliden vs. Arica Victims is one of the biggest lawsuits so far where “doubt science” has played a role. And I think that the judges in Swedish courts need to be very vigilant so as not to be misled by Exponent’s material and testimony.

And I think it’s important that the rest of us are on our guard as well. “Doubt science” has the potential to erode our legal system in the same way that “fake news” pose a threat to democracy.

In one of the last scenes that was cut from the film Arica, the filmmaker Lars discusses the view of science with Arica Victims’ expert Craig Steinmaus. Steinmaus explains that he attend the trial more or less without compensation, but that he thinks that his research on arsenic and its effects in northern Chile is relevant to the issues raised and is happy that it can be useful. He says that he represents “the good science”, meaning the research that lives up to certain scientific requirements. When Lars asks if he thinks that Exponent views their research in the same way, Steinmaus laughs and asks, “Do you really think I would express something like that in front of the camera?”

With the use of Exponent and “doubt science”, Boliden has introduced something foreign and potentially harmful into the Swedish legal system. I therefore contact Boliden with the question why the company chose to hire Exponent and whether they are aware of the American discussion about “doubt science”. From Boliden’s communications director, we eventually receive a text message in which he writes “We do not feel that we need to justify the choices we have made in the matter.”

Given what is at stake, one could expect a more responsible response than that.

We have also tried to reach a spokesperson for Exponent with the question of how they view the accusations made in the article in Business Ethics. We have not yet received an answer.

Andreas Rocksén is a journalist and film producer at Laika Film & Television. The film Arica had its Swedish premiere on March 9 at Tempo Documentary Film Festival.

Journalism students Tora Eriksson Hallberg and Zeb Holmberg have contributed with research for this article.