Within seconds of walking into an industrial elevator’s control room at a TimkenSteel plant near Canton, Ken Ray, a 32-year-old firefighter who moonlit there as a security guard on the weekends, died of asphyxiation.
No one knew at the time, but nitrogen had continuously leaked into the room from a device designed to blast small puffs of pressurized gas to dust off the ventilation filters. Oxygen typically comprises about 21% of ambient air. On March 20, 2016, it was measured at 4.7%, slowly and lethally displaced by inbound nitrogen.
All parties agree the nitrogen gas almost instantly killed Ray, who was tasked with inspecting fire extinguishers on site. But on Wednesday, the Ohio Supreme Court ruled that nitrogen gas is not “toxic,” as the law at the time required for a lawsuit accusing the company of a safety violation to prevail. The court’s ruling blocks Sharmel Culver, Ray’s widow, from punitive financial penalties that her lawyer said could have potentially been worth millions.
The six Republicans on the Ohio Supreme Court sided with TimkenSteel (now known as Metallus Inc.) and the Ohio Industrial Commission, which hears appeals of workers compensation claims. They agreed that because nitrogen is a primary component of the air we breathe, it’s not toxic.
An appeals court had at first reversed the Industrial Commission’s decision, finding that it was the amount of nitrogen in the air that made it toxic. Plenty of other naturally occurring substances can kill you, the judges found, and a critical mass of many chemical compounds can transform them from harmless to lethal.
‘How can you say it’s not toxic?’
The Ohio Supreme Court reversed the appeals court’s decision and sided with the Industrial Commission. Ray died, the justices wrote, because of a “hazardous concentration” of nitrogen in the air. But that hazardous concentration alone doesn’t make nitrogen toxic.
“Inherent in the use of the qualifying term ‘toxic’ is the recognition that some gases are not toxic, for which the employer cannot be held accountable under these specific regulations,” the justices wrote in what’s known as a “per curiam” opinion, meaning no justice is listed as its author. “There is evidence in the record that nitrogen is not ‘toxic’ and not a ‘poison’ as those terms are commonly understood.”
David Steiger, an attorney representing Culver, called the court’s reasoning mind boggling. Nitrogen gas killed Ray within seconds of him encountering it. Alabama, Louisiana, Mississippi and Oklahoma allow the use of nitrogen to kill death row prisoners (pending legislation would add Ohio to the list).
“States are using this to kill death row prisoners,” he said. “So how can you say it’s not toxic?”
What the decision has in common with the “boneless” chicken wing case
Steiger compared the case to a recent ruling from the Ohio Supreme Court’s conservatives who sided with a restaurant over its patron, who was hospitalized after he choked on a bone in what was advertised as a “boneless” chicken wing. The court ruled that “boneless” refers to a style of cooking, not a guarantee of a lack of bones in the nugget. In both instances, Steiger said, the justices relied on confusing and overly legalistic explanations of basic words with commonly understood definitions, all to favor big business and employers over customers and workers.
Because Ray died while on the job, his spouse is entitled under the law to a continuation of his average weekly earnings, which comes regardless of any finding of fault, Steiger said. But the safety violation he alleged on behalf of Ray’s widow would have entitled her to a financial penalty from the company, which could have come out to millions pending the courts’ rulings and different calculations on matters such as life and career spans.
Charmel, via Steiger, declined to comment. She’s been through enough in nine years of litigation and the loss of a spouse, Steiger said.
‘Gotcha jurisprudence’
In 2022, Ohio began listing the partisan affiliations of Supreme Court candidates on the ballot, a change from a longstanding system of nonpartisan elections. While Republicans dominated all other statewide elections, Democrats had managed to win three of seven seats on the bench. Since the change took effect, Republicans have trounced Democrats in every cycle.
Justice Jennifer Brunner, the last Democrat standing – her term is up in 2026 – wrote a scathing dissenting opinion. She said the majority’s logic “flies in the face of reason.”
The lawyerly explanation might make sense to judges but would appear upside down to any ordinary employees or managers working in the plant, she said. Using “sleight of hand” reasoning is a “poor excuse for denying justice to workers whose injuries result in death” and a back door to finding a way to side with employers over workers.
“We can and should recognize that the term ‘hazardous concentration’ and the plain meaning of ‘toxic gases’ provide relief for fatally injured workers such as Ray,” she wrote. “These regulatory terms are not and should not be used to perform ‘gotcha’ jurisprudence.”
Other incidents at TimkenSteel
A few months before Ken Ray died, the Occupational Safety and Health Administration faulted the company, manufactures high-performance specialty metals from recycled scrap metal, for failing to ensure its workers were protected from nitrogen exposure, per an incident report.
The company’s Faircrest and Gambrinus plants have seen an array of other deaths and serious injuries to its workers, with OSHA repeatedly finding the company at fault for shirking safety protocols. For instance:
- A 39-year-old worker suffered multiple broken bones after he fell more than 40 feet while conducting maintenance on a crane at the Faircrest plant in August 2015.
- A crane’s safety latch failure led to 1,000 pounds of equipment falling on and causing serious injury to a worker at TimkenSteel’s Gambrinus plant in May 2015.
- A 65-year-old worker was crushed to death at the Gambrinus plant when he was caught on a piece of steel bar stock rotating at a high speed in December 2021.
- One worker died and two more were severely injured in July 2022 at the Faircrest plant when an electric arc furnace exploded after water became encapsulated in molten metal.
At the company’s plants in Ohio since 2015, at least 23 workers have been severely injured, 18 of whom were hospitalized and si of whom underwent amputations, according to an OSHA database.
The 2022 explosion landed the company in OSHA’s “Severe Violator Enforcement Program” for its third safety violation in five years.
TimkenSteel (Metallus) didn’t respond to an inquiry.
This story was updated to clarify TimkenSteel, not Timken, is Metallus.