Ohio Supreme Court says nitrogen isn't toxic after it killed a guy at TimkenSteel

Yahoo

13-05-2025

The Gavel outside the Supreme Court of the State of Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original article.)
The Republican majority on the Ohio Supreme Court ruled last week that nitrogen gas didn't qualify as toxic in 2016 when it killed a worker at TimkenSteel — a company founded by an important Republican family.
The family sold majority ownership of the company in 2014, but appeared to still be invested and playing a leadership role when the accident took place. Members of the family have continued to be big contributors to Republicans — including three of the justices who ruled against the killed worker's widow.
At issue in the case was whether nitrogen could be considered toxic at any concentration. At stake was tens of thousands of dollars a year that the company could have been on the hook to pay for decades.
Ohio Attorney General Dave Yost is currently pushing to use nitrogen gas in the state's death chamber.
In March of 2016, Kenny Ray Jr., 32, was inspecting fire extinguishers at TimkenSteel's Faircrest plant. When he went into a pressurized elevator-control room, a pulse-cleaning system malfunctioned, the room filled with nitrogen and Ray, who also worked as a firefighter and policeman, suffocated.
His widow, Sharmel Culver, was awarded death benefits, which are two-thirds of the deceased worker's average weekly pay, but capped at about $800 a week. Culver wanted more, arguing that her husband was killed by safety violations at the plant.
Days after Ray's death, the Canton Repository reported that TimkenSteel had a history of safety violations. The company was facing $500,000 in fines at the time of the accident, and the U.S. Occupational Safety and Health Administration had placed the company on its list of severe violators, the paper reported.
Culver, Ray's widow, wanted TimkenSteel to pay her a 'violation of a specific safety requirement' benefit. That could have forced the company to pay half again as much as she was getting in death benefits.
And TimkenSteel might have had to pay for a long time. Spouses are eligible for the benefit as long as they live or until the remarry. Dependent children are eligible until they turn 21 — 25 if they're in school full time.
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Culver said she was entitled to the extra benefits because TimkenSteel violated rules requiring the company to minimize an employee's exposure to air contaminants and to provide respiratory equipment to protect against them.
The Ohio Industrial Commission denied the claim, saying that in order to be a contaminant, nitrogen had to be toxic in any amount.
Nitrogen is a common element which makes up about 3% of the human body. It also makes up about 78% of the air we commonly breathe.
But nitrogen dispels oxygen, and when oxygen concentrations drop below 16% the brain orders the lungs to breathe faster and deeper. When they drop to around 5%, coma and death happen quickly, the U.S. Chemical Safety and Hazard Investigation Board reported.
Highly concentrated nitrogen is such an effective killer that Alabama is using it in its death chamber.
When Culver, Ray's widow, appealed the Industrial Commission's denial of her claim to the 10th District Court of Appeals, that court agreed with her. In directing the Industrial Commission to reconsider its denial, last year it said that whether a substance can be considered toxic must take into account how concentrated it is and how that concentration affects human health.
'In order for this definition to make sense, it must be understood to mean a substance becomes toxic when it is present in the atmosphere at an abnormal level,' the judges wrote. 'This is not a static amount, but a threshold relative to the unique properties of each substance.'
However, the Ohio Supreme Court last week rejected that reasoning.
'Culver's position is essentially that Ray died because of a hazardous concentration of nitrogen gas in the atmosphere; ergo, nitrogen gas is an 'air contaminant,'' the six Republican justices wrote. 'But the definition of 'air contaminant' in effect at the time of Ray's death included only 'toxic' gases…'
The lone Democratic Justice, Jennifer Brunner, wrote a dissent accusing her colleagues of playing word games to deny killed workers' families due compensation.
Such games are 'a poor excuse for denying justice to workers whose injuries result in death,' Brunner wrote. '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. These regulatory terms are not and should not be used to perform 'gotcha' jurisprudence based on rules of construction about redundancy.'
The presence of the Timken name in the case also raises questions, but they're hard to answer. The family founded a company that in 1901 moved to Canton, started manufacturing roller bearings and then moved into steel, power transmission, and other areas.
It's also closely associated with Republican politics in Ohio. Jane Timken — wife of former chairman, CEO and board president Ward Timken Jr. — was chair of the Ohio Republican Party from 2017 to 2021. Last year she was elected to the Ohio Senate after running as a Republican.
The Timken family has also generously donated to Republican causes and candidates — including for the Ohio Supreme Court. Records at the Ohio Secretary of State's office indicate that Ward Timken Jr. contributed $80,000 to national and state Republican groups just in the five weeks before the 2020 election.
The Timken Good Government Fund in 2022 gave $2,000 each to the committees of Republican justices Pat DeWine and Pat Fischer. The same year, Jane Timken gave the justices $2,500 each, and last year she contributed $2,000 to a committee for another Republican Justice, Megan E. Shanahan, state records show.
A spokesman for the Supreme Court was asked if the judges believed they had a conflict of interest.
'Requests for recusal are governed by Supreme Court Practice Rule 4.04,' the spokesman, Andy Ellinger, said in an email. 'No party in this case filed a request under that rule requesting any justice to recuse. Moreover, each justice may recuse themselves if they deem they have a conflict.'
It's also hard to learn the extent of the family's involvement in TimkenSteel when Ray was killed at its Faircrest plant in March 2016.
A spokesman for the Timken Company noted that TimkenSteel was spun off in 2014 and now has a new name, Metallus. He referred questions to that company.
'On behalf of Metallus (formerly TimkenSteel), I'd like to clarify that the Timken family has had no management role, board seats or other ties to the company since 2019,' Director of Communications Jennifer Beeman said in an email. 'Additionally, they are not considered major shareholders. We will not be providing any additional comments.'
Asked in a follow-up question what the Timken family's involvement was in 2016 — when Ray was killed, in other words — Beeman didn't respond.
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