states that a lack of due diligence should not prevent a party from presenting the new evidence. See Restatement (Second) of Judgments § 29 cmt. j (1982); see also Barker v. Brinegar, 346 N.J.Super. 558, 788 A.2d 834, 840 (2002) (“[T]he judge may consider diligence, or lack of diligence, ... [but] a lack of diligence does not require invocation of collateral estoppel particularly where, as here, plaintiff attempted to obtain Dr. Matthew’s evaluation prior to the arbitration proceeding.”). But see Klein v. Comm’r, 880 F.2d 260, 263 (10th Cir.1989) (“A party may not assert a change in controlling facts when the facts allegedly showing a change in circumstances could have been discovered in the exercise of due diligence.”); Calcutt v. Comm’r, 91 T.C. 14, 25, 1988 WL 71262 (1988) (<HOLDING>). Having concluded that the fairness
holding that posttrial discovery of asserted newly discovered evidence did not satisfy the requirement that the evidence must be such as with reasonable diligence could not have been discovered and produced at trial holding that evidence which by due diligence could have been produced in the first proceeding is considered to have been available at the first proceeding and therefore will not preclude the application of collateral estoppel holding that nonconstitutional claims that could have been raised on direct appeal may not be asserted in a collateral proceeding holding that a workers compensation proceeding is a legal proceeding holding that the party against whom collateral estoppel is asserted must have been a party to the prior action